New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-06-18

Vol !. Pp. viii, 7l3. Tho Boston f'ook Company.
A commentary on the Constitution. to be just.
must be generous 10 both the aspects 1t presents
in his,ory-that Of segregation and that OF union
But II generosity leans to either side the partlsans
~.f the other side will complain. Mr.. Foster GER
tainly seems 10 lean little 10 the side OF the
State Rights men. He Is explicit enough as to the
character Of the union. He calls the United
States Nation briefly and emphatcally as
possible and he denies with equal brevity and
emphast, that they constitute a league Only a
revolution can dissolve the bond. he Gays; and
he adds that these facts have been established by
the adjudcations Of the courts the action OF Con-
gross and the Executive. the acqulescence OF the
Statoa. and the arbltrament Of war. The Infer
IL that until they were established In this
way they did not exist facts. that the United
States were not truly Nation until the views OF
the separatsts were condemned by the results Of
the Civil War But II It solely this series OF
external Incidents that decided the matter, what
Is there TO prevent the affair from being argued
all over again with new result Americans
are in general convinced that the case Is closed
Yet they know that courts in process Of time by
the mere change In personality OF their constltu-
ents can be made t. unsay what they have once
decided. and that this is even easier with Con- 4
grcss and the Executive that the States stand
ready always % resume the powers OF which
they have been deprived. ana that war Is ever
uncertain. Their sanguine hope as 10 the future
must rest upon something stronger than these.
There is something stronger than all these.
though It IS less cpsy weighed by the lawyer
than 10y tho historian. Union was from long ago
a vital and growing fact In the lie Of the people.
while separatlsm was an intellectual theory that
would have vanished years before II did II there
had not been Il peculiar institution - keep II
alive.
Just because secession. apart from slavery. was
an intellectual theory. rather than vital fact,
II had the best Of the argument long It's
premises were accepted. And merely In logical
and legal FORM Il has the best OF the argument
at this moment In Mr.. Fosters pages. This
argument rests first of all upon the axiom that
no law can bind a sovereign. This axiom applies
To the States. FOR they claimed sovereignty. and
as sovercgns agreed To the old Articles OF
Confederation. In the same capacity they de-
cidel 10 form the Constitution. chose delegates
to draft 1t. then ratified II separately. asserted
in two cases tho right to withdraw. and ad-
mlttcd no phrase In the instrument that asserted
IL Union different from the old Confederacy. or
gave power 70 coercc state. on the con-
trary by tho simple failure 10 elect Senator'S tho
states could destroy the Union forthwith. Tho
Union must then be- n mere league. Each soy
and II II chooses to abandon the league. its cit-
zrns are at once absolvcd from loyalty TO tho
league II there IS any defect in this reasoning
II must bc I'm tho premises for there Is no weak
Ink In tho chain Tho supporters felt that tho
defect somewhere In the doctrine OF SOW
eregnty and they denied that the States We're
sovereign before the adoption OF the Constitu-
ton" II their denial Is not dsproyed they
need no further argument. But Mr. Foster un-
dertakcs to disprove It. Before the adoption OF
the Constitution" he says the several states
VINO wcr. parties to the Confederation were In
dependent and sovereign. This theory. although
disputed by high authority. seems to be estab-
lishcl" In h4, opinion. II the Continental Con-
gr"ss. literally provisional government, had
been kept up from the time when the connec
ton Of the Colonies with each other through
dependence on Great Britain was annullod down
to the adoption Of the Constitution. lit might
well have been claimed that the sovereignty
was In its constituents at large. and that the
several States never sovereign or indie
pendent" But in the Articles OF Confederation
the sovereignty of the several states was dis
tnctly recognized. Mr.. Fosters argument COW
a great deal besides. the language OF treaties
In which all the States are named as parties. and
other Items OF circumstantial evidence. but the
case really turns the interruption In the MS
tory or the | Mon caused by the hDOrtlNc expert
mcnt Of the Confederation.
But an evolutionary process is not Get aside IN
history by the fact that 1t is apparently inter
rupted. Under the NJ the seeming reac
,on. tho people keep on striving with the prob
lem which ha9 been set for them IN the nature
Of things. and when they come to light with
solution II Is apt to be just the solution which
they should have reached II the reaction had
never taken place II. ignoring the Confedera
ton. the Constitutional era 10 logically linked 70
the era Of provisional government NJ Mr. Foster
says then the Confederation remains an episode
an cccentrlcty the eruption Of a political heresy.
that broke the thread OF National history In the
same sense that the accidental Aranism Of an
Emperor eclipsed orthodoxy for moment In
the Eastern Empire AZ to the fact that the
United States virtually existed before the with
drawal OF British sovereignty. Mr.. Foster Is as
clear the extreme Unionst could de-
SIRE If only by implication. The first Con-
greso OF the United States. he says, was the one
which met September g. IVA. and almost the
frst thing which that Congress did was to de-
scribe the territories Of its constituents not as
States but colonies Aside from the disputed
point as to the condition OF the States before the
adoption OF the Constitution, he Is equally clear
respecting the higtoric relation to the General
Government THE term State sovereignty" he
remarks was n misnomer. 1t Is associated
with slavery and secession; and little good can
be gained by It's use In the controversies OF the
present or the future. 1t Is otherwise with the
doctrine OF State rights when correctly under
stood and properly applied. Now that the whole
world Is the subject OF a struggle for a read
Justment OF the relations between the employers
and employed. In which each calls for the aid of
organized powers Of society that the rights of
landowners overhaued and attempts made
to reconstruct them; that even personal property
Is not exempt from attack; that the change in
the condition OF women Is accompanied by
changes in the institution Of marriages.: and that