IN

CHAPTER XIII.

CONSERVATIVE ERRORS.

N concluding this part of my work, I will try to expose the errors of several public teachers, whose devotion to liberty and the sacred defences thereof cannot be called in question. Many of these eminent so-called conservatives and strict-constructionists do, with great show of research, thought, and logic, combat the errors of "the Massachusetts school," while they themselves promulgate fallacies nearly as reprehensible.

If this class reform their views of our general polity, they must study it in the light of actual contemporaneous history, and the herein contained explanations of the fathers, repudiating the false gloss thrown on it, first by enemies to defeat it, and afterwards by the equally unfounded, because identical, dogmas of Dane, Story, and Webster, and their followers.

"A REPUBLICAN FORM OF GOVERNMENT."

Probably the most widespread, important, and cardinal error is in reference to the meaning of this seemingly plain phrase. I have seen it used in argument hundreds of times in this generation, but never in its true sense, i. e. the meaning it had in the minds of the fathers, which I shall now try to show.

This phrase can but mean a republic. "The people" were organized, did exist, and could only act as bodies, called "Massachusetts," "Pennsylvania," "Virginia," "Georgia," etc. Each was a republic, a commonwealth, a state, i. e. a "moral person," possessed of a mind and will. This will in each—that is, the collective will of the people -was to be exercised in self-government; and, in providing that "the united states shall guaranty to every state in this union a republican form of government," the constitution seems to mean that the will and power of all the communities of people are to be exerted, when necessary, to protect each community of people in self-government, i. e. in the free exercise of her own will in all governmental matters.

The wills of the thirteen states were exerted through deputies in the convention of 1787, in devising the "federal constitution;" and the same wills were separately and successively exerted in ratifying, i. e. in ordaining and establishing that constitution, and endowing it with its only possible legitimate life and power.

The Sovereign Wills survived Federation. The wills exercised on that grand occasion dwelt in pre-existent states. To associate the bodies-politic as "united states," and subject their people to "the government of the united states," these wills must have been sovereign wills; must have continued sovereign until the government was completed and actually set at work; and must, as sovereign wills, have survived the act of making the union of states. And hence, unless abdication or suicide can be shown, these sovereign wills existed until, in war, the states were brought under the yoke, i. e. subjugated.

"Form" and Soul both are meant. But all the attempts at exposition I have seen, appear to take it for granted that the provision referred to, means merely the form of a republic, even though life and soul be wanting; or though the said form cower helpless under despotism, as several of the American states have heretofore done!

I will give here two examples of the error, to comment on. In speaking of the Louisiana case, the New York Sun said the following: "The oft-cited clause of the constitution, that the United States shall guaranty to every state in this union a republican form of government, does not apply to a case like that existing in Louisiana. The form of the government of that state is all right." [N. Y. Sun, 1874.]

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A leading southern paper highly conservative-held forth on the same topic, as follows: "That there is no defect in the form of the constitution of Louisiana, is perfectly clear. Its form is contained in her constitution, which is the especial production of congress by its reconstruction laws. . . . How can congress then affirm that the form of this constitution of Louisiana is not republican?”

The error here is amazing, considering that it is that of a Louisiana journal. In saying "its form is the especial production of congress by its reconstruction laws," it virtually but unwittingly said "Louisiana has no sign of a republican form of government."

These views which seem universal, even among conservatives, result, as I humbly think, from confused thought, or a want of thought. The word "form" in the clause, must mean kind or sort.

When, in the process of making the principles of liberty and human rights institutional, the people put the guaranty clause in the federal constitution [Art. IV., § 4], they acted in view of the general forms

(or kinds, or sorts, or species) of government, the world then presented, and publicists explained, viz.: the monarchical, the aristocratic, and the republican; and they said, "We want no monarchy or aristocracy, but we aim to establish or perpetuate a republic." Hence the idea in all the institutions then being established was, that the people were to govern themselves—all constitutions being their fundamental laws, establishing their forms of government, and all rulers being their substitutes, agents and servants. All sovereignty was held to be ever in the people, and never in the rulers; and the above article means as follows: The associated states shall guaranty to every state in the association, that she shall have and enjoy the being and rights of a republic, that is to say: New York, Massachusetts, Ohio, Virginia, Illinois, Georgia, Oregon, Texas, and others, collectively, are bound in sacred faith and international honor, by their treaty, compact, or constitution (whichever it may be called), to secure Louisiana in being and remaining a republic. They must use their influence, their political authority, and finally, if needs be, their material strength, to preserve in her the unqualified right of self-government. It does not mean that she shall have 66 a republican form" without substance the appearance or pretence of freedom without the reality. It does not mean that she shall have a constitution, a legislature, an executive, a judiciary, and popular voting (some European monarchies have all of these), but that she shall be a republic, and govern herself-separately in her own affairs, and jointly with her sisters in federal. It does not mean that she shall have all her rights reserved to her IN the federal constitution (as the Storys, Curtises, and even many leading democrats, say), but that she shall have and enjoy all original rights, and all original power. Rights and powers reserved must, of course, be out of the instrument which contains the rights and powers delegated, as a moment's reflection on Amendments IX. and X. will show.

All this is consistent with the legitimate authority in the federal constitution, which is plainly written, vicarious, and confined. It is authority given to men to act, not for themselves, but for others, who of course are above them. These superiors are the people, however organized and acting. The claim of absolute supremacy over states, instead of delegative authority from and under them, is the assertion of might, trying to become right by force and fraud.

Self-Preservation the Duty of a State. - The states in this union associated for self-preservation, and they contemplated no change in themselves, or diminution of authority. To "provide for” “defence” and "welfare," they, the said "moral persons," exercised the investigative faculties, reasoning powers, judgment, and will, that a natural

person would do, for the same purposes. It must be kept in mind that the Almighty, in making men moral agents, i. e. giving them the right of self-government, and ruling them into society, requires that the above-mentioned powers shall be exercised now and ever, for that self-preservation, which is the first law of nature, equally to states, persons, and brutes. States as well as men are the products of God's wisdom. Now, reader, think of it, and tell me if you do not ascertain facts, reason on them, judge, and determine your will, as to your "defence" and "welfare?" Must not every moral being do so? If the last time you did so, you had bound yourself to do so no more, would you not be a slave? If a state has so bound herself, is she still free? The great issue now before God and the world, is freedom or slavery of states!-states made of men, and their belongings and rights!

Ah! such mental powers in a God-endowed commonwealth - the "moral person" Vattel speaks of — are coupled with the duty of constant exercise. A state is charged with the "defence" and "welfare " of her people. Her making this union, is a confession of her duty to make another if this, her second effort, fail, as did her first. And nothing but weakness can excuse her for not destroying the despotism that prevents the free exercise of her will and duty in this matter. Weakness alone makes submission a duty. This and the women and children, have often been the sole safety of the oppressors, in some of the states!

Voting was a mere Simulacrum of Liberty, in some of our states. In them only the form of institutional freedom was left. "Soul was wanting there." The will of the corporate despot at Washington, instead of the will of the people, was law. But was it not a representative government? Did not the people elect all? Is not that self-government? Vain delusion! In England the people elect. Louis Napoleon had universal suffrage in France. Our people were similarly privileged. We had the "form," but no substance, no life of the republic! "The government" claimed and enforced "absolute supremacy" over states and people.

The Guaranty is Really One of Sovereignty. It is evident, then, that the state, as a political body, has the right to the guaranty; and that her soul, her will, and her right to govern, must be included. The soul is essential to such "moral person" [Vattel], and reason, judgment, and will are essential to the soul. Hence, to guaranty republican government to a state, is to guaranty the continued existence of the community of people referred to; the continued existence of the soul of that commonwealth; the continued existence of the will thereof; the continued existence of the right of that will to govern in

all cases; and the continued existence of its entire control of the instruments called votes, by and through which the said will is expressed.

These votes spring solely from the will of the commonwealth. Through them, under state laws, and at state polls, all officers, state and federal, get their sole validity and authority to act. All the power of the federal government of any kind, or on any subject, must come through these votes. Says Montesquieu: "In a democracy, there can be no exercise of sovereignty but by the suffrages of the people, which are their will. The sovereign's will is the sovereign himself. The laws establishing suffrage are therefore fundamental to this government." [Esprit des Lois, p. 12.]

Some may fancy they find "exploded theories" in what I here write; and may think I am "behind the times," and "unpractical." But I am only restating the statements and faith of the fathers; and giving the precise acts of the people, in building up their permanent institutions; and I am very careful to adduce facts, and to avoid the great offence of denying, burying or crushing "God's truth;" for it will live through time, "rise again," and finally "sear the eyeballs " of those who, because it is stricken down, and they think it troublesome and profitless to raise and defend it, say: "Let us accept the situation," and "go ahead from attained results!"

THE FOURTEENTH PARTY TO THE COMPACT

was, according to Robert Y. Hayne and Judge J. S. Black, the government, which could not have had any existence, till long after the eleven states had ratified, established, and finished said compact.

Hayne, in his debate with Webster, said: "Here then is a case of a compact between sovereigns; and the question arises what is the remedy for a clear violation of its express terms, by one of the parties?"- thus treating the government, both as a party, and a sovereign. [IV. Ell. Deb. 509, 516.]

Judge Black is an abler man, and a clearer thinker. In the Milligan case, he spoke of the "vesting of the judicial power, which the united. states could legally exercise;" and said "that was the compact made with the general government at the time it was created."

Other eminent men make the same mistake, so that the confusion of ideas on this subject is general. It is only necessary to say that the compact existed and was complete, through those ratifications, declared in itself to be sufficient for the establishment of it, many months before the general government existed. After the collective