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that the judicial exposition of law which may be thus characterized involves, in an eminent degree, the recognition of the supreme or sovereign power in its actual investiture and exercise. A remarkable conflict of judicial opinion on the question of the investiture of sovereign power in the United and several States has been exhibited in the cases above spoken of.
That the courts of the slaveholding States, in concert with their other organs of public action, have long, with increasing unanimity and clearness, regarded the Constitution of the United States in the light of an international compact between the several States, as individuals originally possessing and continuously retaining all the attributes of independent national existence, will not be questioned by any at all conversant with the history of judicial decision. Has, then, the conflict of judicial opinion, above indicated, been exhibited only as one existing between the respective courts of the two geographical sections now arrayed against each other in the attitude of belligerents?
From the united action of the people of the Northern States in vindicating the nationality of that People of the United States in whose name the Constitution was declared, it might be inferred that the judiciary of the Northern States had maintained this view with a uniformity and distinctness equal to that of the Southern courts in supporting the contrary doctrine. But the opinions cited in this volume, in cases arising out of the existence of slavery, may show that, while Southern jurists have relied upon the State-Rights theory to maintain the claims of slave-owners and of the slaveholding States in these international or quasi-international cases, the courts and jurists of the Northern States, in maintaining freedom of condition against those claims, have, more especially within a few years past, with almost equal readi
ness, resorted to the same theory of American public municipal law.
As, under this view, the Constitution exhibits less of the character of positive law and more that of a treaty, the legislative and executive functionaries of States, in both sections, have, at the same time, been induced more and more to claim cognizance of matters arising under those parts of the Constitution which, in effect, are most international. Hence, in the application of these provisions of the fourth Article to the relations of private persons, the legislative, executive, and judicial functions in the several State governments, instead of being combined in their ordinary co-ordinate action, have been more and more involved as competitors,-each in turn seeming to assume an incongruous prominence in asserting the interests of private persons as matters in which the States themselves were the parties claiming rights of and owing obligations towards each other as such.
It is in the agitation of The Slavery Question, almost exclusively, that those doctrines of State sovereignty have, during the last thirty years, been exhibited, upon which practical secession is claimed to be legitimate public action; and as those who were most opposed in their moral and political preferences in respect to slavery were at the same time almost in harmony on this subject, in view of totally different ends, it could be no occasion for surprise if these doctrines had been found to have gained greatly in acceptance, during that agitation, in the Northern as well as in the Southern States.
It may even have been that, among those who, by training, association, and public profession, had been most strongly bound to the recognition of an integral people of the United States and of political nationality co-ordinate with the existence of the States and supporting the Government of the Union, there were some who, studying the course of juristical
opinions, supposed a virtual revolution as having silently occurred by a change in the popular conception of the Union. Some such may have imagined a change, on the part of the people themselves, in the recognition of their own possession of sovereign power, as though the political nation had abandoned possession of those powers which, at the beginning, it had delegated to a national Government, while, simultaneously, those powers had passed to the States, severally, continuing to be exercised by a general Government, as by the delegation of those States; whereby the Government of the Union, ceasing to be a national Government, became a federal Government-the agent of a Confederacy, in the sense of a league of many, each intrinsically a distinct possessor of the sum of powers belonging to every sovereign nationality.
A change in the location of sovereign power, the time and manner of which should not be discernible except by the philosophic publicist, may be hardly possible even in theory; yet the idea of some such possible constitutional change may have so impressed many acute minds that, when the practical attitude of secession by a State came following on the theoretical assertion of State sovereignty, a necessary pause for recollection may have exhibited the aspect of acquiescence, on the part of the people of the Northern States, in the doctrine and its consequences.
It may be safely asserted, as matter of history, that from the very genesis of the Constitution the doctrine of a compact between the States has generally exhibited itself as in affinity with the doctrines of "the social compact," of individual consent as underlying all the institutions of civil society, and of government as that which exists by the choice of the governed. When professed jurists would speak of revolution, or power to resist the Government, as a legal right— where high judicial authority might be cited for the assertion
that there are no subjects in republican governments-it was natural enough to question whether allegiance be any duty of the citizen. The existing works on public law are, for the most part, the production of men who wrote either under monarchies or in the interest of monarchy. There are probably now in other countries, and even in those islands where the Constitution of England is the law for king as well as people, some who hold that without royalty there can be no loyalty, and regard sedition, privy conspiracy, and rebellion as things which, by the nature of the case, can have no existence, as crimes, in republics, where the people rule. Among ourselves the doctrine of popular sovereignty has, of late years especially, been announced in propositions which would, logically, make the individual member of society independent of the governments which the people have established, and, practically, recognize a state in every chance aggregation in which the phenomenon of a numerical majority might be discernible.
In their reliance on the dogmas of this school, as in the predilection for State Rights, there was a remarkable resemblance between parties most diametrically opposed in action respecting slavery. The a priori assumptions upon which these doctrines were based are equally convenient to make a status natural or to make it unnatural; would throw the presumption of law and burden of proof with equal case on either side of a legal controversy, and, as might be required, either carry the negro, as property, into unoccupied Territories, or invest him everywhere with the prerogatives of the citizen.
That such theories have been resorted to in supporting contrary interests in the slavery question, even when subjected to judicial discussion, may appear from cases given in the following pages.
It would require documentary proof of another class to
show that with these theories the kindred doctrine of a "higher law," by which all positive law, municipal or constitutional, private or public, should be measured, not only by the judiciary, but by the individual citizen, in calculating the limits of his obedience, was simultaneously embraced by the extremists of the respective advocates of both these contrary or contending interests; while such law has been as easily produced, when wanted, on either side, for attack or defence. In the name of a "higher law," the Acts of Congress prohibiting the African slave trade have been denounced before Southern legislatures and in Southern conventions, while, on Northern platforms and in Northern legislatures, another law of the same sort has been invoked to invalidate provisions of the national Constitution and legislation, whether State or national, devised to carry them into effect.
To a stranger, who, without knowing the history of these theories in weakening the popular perception of the foundation of our civil institutions, had observed the apparent quietude with which the first pretensions of seceding States had been received, the suddenness and emphasis with which the people of the Northern States asserted their belief in national existence might seem political inconsistency.
The legitimate consequences of such theories, when exhibited in State secession as practically asserted during the past year, must, sooner or later, have produced war, had they been the burden of the Constitution itself. Had not, by conscious or unconscious misleading, the whole subject of the foundation of government and law become obscured in the mind of the people of the Northern States, and had not this fact been observed and its consequences calculated upon, it is probable that none in the Southern would, at this time at least, have attempted to sever the national unity. For this