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Thursday, August 23, 1917.
lished in revised form by Woodrow Wilson,
then Doctor of Laws, and Professor of Juris
prudence and Politics at Princeton—l9ol
the learned author forcibly and most truly
says—•
“Discussion is the greatest of all reform
ers.
It rationalizes everything it touches.
It robs principles of all false sanctity and
throws them back upon their reasonableness.
If they have no reasonableness, it ruthlessly
crushes them out of existence and sets up
its own conclusions in their stead.”
(“The State,” page 139.)
These ancient rights were not first set forth
in the Charters of Henry and John: those
rights had been in existence “from time
whereof the memory of man runneth not to
the contrary.”
This fact, immensely important to the con
sideration of the new laws of 1917, is well
stated by Dr. Woodrow Wilson, his then title,
in his valuable book, “The State.”
“Our own charters and const it’ tions ha ve
» . . been little more than formal statements
of rights and immunities which had come to
belong to Englishmen quite independently
of royal gifts or favor. . . . And so our own
Colonial charters . . . simply granted the
Usual rights of English freemen.
Our constitutions have formulated our po
litical progress, but the progress came first.”
(The State, p. 564.)
Chancellor Kent, Judge Cooley, Sir Wil
liam Blackstone, and all other authorities with
whom I am acquainted, state the same great
truth —towit: that the Great Charter of 1215
and its succeeding legislation were nothing
but the re-assertion of ancient liberties. In
deed, Blackstone says in his Commentaries,
if my memory is not at fault, that nearly all
of the remedial laws of modern times consist
of the abolition of abuses which were intro
duced by tyrannical Kings.
As everybody knows, our forefathers con
tended that these ancient English liberties
came with the colonists to this country. A
seven years war established that proposition.
The Mother Country acknowledged the In
dependence of Thirteen American States, sep-
by name: the old Confederation never
issued a Declaration of Independence, and
was never recognized by Great Britain.
The old Confederation of the Thirteen
States had an Army and a Navy of its own;
and this Army and Navy were independent
of the States.
Let us bear that in mind, for the fact has
its bearing on the issue now in Court.
t
I
The independent, sovereign States compos
ing the Old Confederation select delegates to
a Constitutional Convention, commissioned to
amend the existing Articles of Union. In
stead, the delegates create a new Constitution,
and submit their work to the States, for ac
ceptance or rejection.
The requisite number of the States separ
ately ratify the new instrument of Union,
although North Carolina and Rhode Island
did not.
Before her accession to the new Union,
what was North Carolina? What was Rhode
Island?
There can be but one answer: each of those
States was a separate, independent sover
eignty, just as Sweden is today.
The new Union had its Army, and the two
separate States had theirs, consisting of their
militia: and the two States were just as fully
organized into political entities, as Holland
and Denmark are at this time.
What surrender did those two States make
of their control over their militia, when they
at length came into the Union ?
They surrendered nothing of that supreme,
sovereign control, except that the Union
might use this militia for the general wel
fare, in case it were menaced by invasion, re-
THE JEFFERSONIAN
bell ion, and resistance to the laws of the
United States.
That is ah.
What Rhode Island and North Carolina
surrendered, the other eleven States yielded--
that much and no more.
The first question—•
What is the real character of our Govern
ment ?
Reasoning applicable to oilier nations fails
here. What Parliament may do in England,
is one thing: what Congress may do, in the
United States, another.
We lose our road before we get good started,
if we ignore the dual system of the United
States.
Gen. Logan, 1879, said of the United States
Constitution: “It cannot have the aspect of
both a sovereign nation and a collection of
sovereign States.
A paradox of insurmountable character is
involved in the very idea of such a thing.”
In his reply, Air. Hill said—
“lt is a remarkable fact that, just what the
honorable Senator from Illinois calls an in
surmountable paradox, /is exactly the Consti
tution of the United States.”
Mr. Hill then proceeds to quote from Mr.
Madison’s papers in The Federalist, and from
Mr. Webster's replies to Hayno and Calhoun,
demonstrating the mixed character of our sys
tem, the Federal Government being national
in some respects and federal in others—for
instance, the House of Representatives is na
tional and the Senate, federal; while the Elec
toral College is partly both.
Mr. Hill rose in one of his flights of ora
torical splendor as he described our complex
system, evolved from the wisdom and experi
ence of struggling centuries, a system whose
model had never existed. He said, “When you
hear about a man going to Rome or to Greece
or to Switzerland, or anywhere, to find mod
els by which to understand the Constitution
of the United States, he is going in dark
places to gather light.”
Tracing briefly the contest between the two
conflicting theories concerning the Constitu
tion, Air. Hill denounced the extremists of
both theories, and he is asked this memorable
question—“lf he is a traitor who would di
vide the States, how can he be less a traitor
who would destroy the States?”
Within its orbit, the national government
is supreme: within their spheres, the States.
For example, the State is sovereign over
the jury-box, and the qualifications of vot
ers: the national Government has no author
ity except to prevent racial discrimination.
Thus the sovereign States have to supply
the Federal Government with jurors for its
own courts, and with electors for its own elec
tions.
In fact, the national Government has no
electorate at all: the State not only furnishes
the voters, but holds the elections.
If the national Government were deprived
of State voters and jurors, it would be emas
culated; but if the States were deprived of
everything coming to them from the Federal
Government, they would still be separate, in
dependent, completely organized, and self
siiHieient sovereignties.
Unless this undeniable fact is kept in mind,
we miss the true understanding of our com
plex system of government, the like of which
was never before seen in this world.
Students of government have said that our
system was not a demonstrated success: they
say it is still an experiment.
Perhaps they are right. And it may be
that the supreme crisis of the experiment is
upon us.
God help us to recognize the old landmarks,
and to go by them.
I lay down this proposition as the basis
of the argument against the new Acts;
The Fathers who framed the organic law
of our Union were men who were loyal
supporters of sovereign States, and who were
careful to safeguard the States in the preser
vation of those sovereign powers not dele
gated to the lederal Government.
Not only does the organic law of the Union
say this, in express terms, but that Supreme
Law also recognizes the existence, in the peo
ple themselves, of powers which even the
States could not lawfully impair.
If I may use the simile— the people are the
great reservoir of so cereignt y, from which the
States draw for their needs. Afterwards, the
Stages expressly gave to the Federal Govern
ment a specified portion of this power, so
drawn from the reservoir; but neither the
federal Go vern wen t nor the States hare ex
hausted the source from which their powers
'were drawn.
Always, the people remain the rightful
heirs of trie English liberties which the writ
ers call “immemorial”; and, if some of these
inherited rights are not stated in the organic
laws, they nevertheless .exist, and can be as
serted whenever the people see fit.
State or Federal Constitutions, subject to
amendment at the popular will, have recently
undergone great changes; and it is not im
probable that the people will draw from the
reservoir the power to enfranchise the
women, and to prohibit the manufacture of
intoxicating liquors.
In dividing sovereign powers between the
States and the Federal Government which
they were creating, our Fathers took particu
lar pains to protect the States from military
encroachment.
A student of the Convention Debates, of
The Federalist, and of the Constitution itself,
is struck by that.
In the Philadelphia Convention, the dread
of military aggression found frequent utter
ance; and in The Federalist, the best efforts
of Hamilton and Madison were put forth to
allay those fears.
Again and again, Hamilton and Madison
reminded their countrymen, that the Federal
Government could never deprive the States
of their power to withstand Federal en
croachments, because the States would always
have control of their militia, except when the
Federal Government needed it, to repel
invasion, &c., and that, even then, the
State’s own officers would remain in command.
The scheme of the organic law of the
Union, as shown in the very language used,
was that the Federal Government should have
an Army of its own, and that each State
should have a militia system capable of main
taining order, enforcing law, and safeguard
ing the people from any sudden invasion.
The Federal Government has no authority
whatever over the State’s troops, save in the
three emergencies mentioned in the Constitu
tion.
It follows, therefore, that if the new laws
of 1917 obliterate this clearly-drawn distinc
tion, and lump the State troops with the Na
tional Army, they violate one of the most
vital parts of the organic law, and destroy an
integral part of the Constitutional scheme.
To merge the militia with the regular Na
tional Army, is to revolutionize our systems. of
government, and to set up another, totally dis
similar.
Under the Constitution, as plainly written,
(and as put into operation by President
IVashi ngton during the Pennsylvania Whis
key Rebellion.) no Act of Congress is valid if
it deprives the State Governors of their pre
rogative of naming all the officers and Issuing
the call for the troops, when the President de
clares, officially, his need of them to repel in
vasion, suppress insurrection, and execute the
laws.
I liese provisions were placed in the organic
law, out of wisely jealous regard for the re
(continued on page four.)
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