The Close of Von Holst's Work

IN the preface which Dr. von Holst wrote in English for his great work, he ventured to say that, as to his American predecessors, he had one great advantage over all of them in that he was a foreigner. “I of course,” he said, " do not deny that there is a certain something in the character of every nation which a foreigner will never be able to completely understand, because it cannot be grasped by the judgment; it can only be felt; and in order to feel it one’s flesh and blood must be filled with the national sentiment. But however often my shot may have missed the mark in consequence of this lack of the national sentiment, though it might greatly impair the value of the work for other foreigners, it cannot possibly be fatal to it with regard to American readers, for they have the necessary corrective in their American feeling. On the other hand, it is much easier for a foreigner to guard his judgment from being betrayed by his feeling. He has only to ward off his prejudices. This, though no easy work, can be done to a high degree; while it is impossible to strip one’s self of one’s national sentiment, because this is a constitutive part of the individuality.”

The careful reader of this work will be in no doubt whatever that the author has done his best to rid himself of any preconceived prejudices that would preclude impartiality ; but he is not so likely to agree that want of national sentiment is an advantage in the preparation of the work. The national sentiment that the author has specially in mind is doubtless what, in another place, he has described as the worship of the Constitution, which, during his abode in America for some five years, he seems to have discovered was common among all classes of the community; among statesmen as well as the most ignorant and illiterate. He finds the evidences of this everywhere, and especially in the pages of the debates of Congress, where, up to the year 1861, “there were but few laws of a general character proposed which, while under discussion, were not attacked as unconstitutional by the minority. The arguments are scarcely ever confined to the worth or worthlessness of the law itself. The opposition, in an extraordinarily large number of instances, starts out with the question of constitutionality. The expediency or inexpediency of the law is a secondary question, and is touched upon only as a confirmation of that first decisive objection.” If Dr. von Holst had been American born, and if American institutions had been with him “ bred in the bone ” as they are with the American people, it is not likely that this particular criticism would have found expression in his book in exactly this form. An American understands that the Constitution was formed not alone for a union of the States, but as a precise measure of the power that should pertain to the nation, and as a final test of encroachment by any department of the government, and especially by the legislative department, upon the powers of the several States or upon the rights of the people. And with him it would be instinctive that the highest possible test of the expediency of any proposed law must necessarily be the conformity of that law to the Constitution. While, therefore, he might be satisfied, as this author is, that the constitutional question is raised in many cases as a mere make-weight to an argument upon other grounds, he would nevertheless understand that when raised in good faith and on plausible grounds it must always be the question of primary importance, since any enactment, however useful or important it might seem to the lawmaking department, must still, if lacking in constitutional authority, fall lifeless from the approving pen of the President, so that the humblest citizen may disregard it with impunity.

The learned author begins his history with the first steps taken by the American colonies for joint action in protecting themselves against the abuse of English authority over them ; but he deals very briefly with colonial action, and passes somewhat lightly over the establishment of the Articles of Confederation and the formation and adoption of the Constitution. Two chapters are found sufficient to bring us to the organization of federal government under Washington, and a single volume to trace the operations of that government to the era of nullification and the practical acceptance by political parties of the maxim that “ to the victors belong the spoils of office.” As one reads the work, he cannot fail to be impressed that it is more of a political than of a constitutional history; and indeed the translator has interpolated in the title the word “ Political,” which the author had not made use of, and has thereby made it express more nearly the real scope and purpose of the work. It is with elections, the doings of Congresses and Presidents, and the movements of political leaders that the author deals, rather than with the quiet and undemonstrative action of the judicial department, which, in testing political action by the Constitution as it has frequently been called upon to do, has in many cases affected the constitutional history of the country far more than have some great debates in Congress, or even popular changes in opinion which may have overturned one party and brought another into power. The most interesting parts of his history, in many cases, bear but indirectly upon constitutional questions ; and though we seldom feel that they are wanting in fairness or impartiality, we nevertheless find ourselves questioning constantly whether they do not give to political action undue relative importance when compared with judicial. There can be no correct appreciation of the Constitution unless it is clearly understood not only that the judicial department is independent of both the political departments, but also that, in respect to the constitutional questions properly brought before it, the decisions it makes are law for all. We may think sometimes that they misinterpret constitutional provisions, but we cannot dispute their authority.

The present volume ¹ covers the exciting period when preparations were being made for the great struggle which would determine whether slavery should rule the Union, or should remain the same local institution which the Constitution had found it. The South had obtained a law for the return of its fugitive slaves, but it had proved of little value. Texas had been annexed to extend the area and increase the importance and power of the peculiar institution, but, to the great surprise of those who for years had labored unscrupulously to accomplish that measure, it was proving likely to strengthen the free rather than the slave States, and its authors were now looking about for the means of defeating this unexpected result. Further annexation of slave territory was sought for ; and when this proved impracticable, the attempt was made by force to introduce slavery into portions of the newly acquired territory which had already been taken possession of, under the laws of Congress, by free settlers. Civil war in Kansas, and the exciting proceedings in Congress from 1854 to 1856 growing out of the attempt to make slavery national instead of local, the election of Buchanan by votes mainly from one section of the Union, followed by threats of dissolution of the Union if the efforts of the slaveholders to control it should be thwarted, are graphically described, and the narrative will be read even at this day with keen interest. We see plainly in these pages that the people of the Union are being gradually brought face to face, arrayed in antagonistic political parties upon a geographical line; and the feelings excited are so intense, and the impossibility of discovering any method of settling the great issue which divides them so as to satisfy both parties without overriding the Constitution is so manifest, that civil war as the only alternative to a peaceful dissolution of the Union looms up with fearful distinctness.

It is perfectly natural that a foreigner, who sees in our federal government the representative of all authority in respect to the laws of nations and in dealing with foreign governments, should feel that it must he also the possessor and exponent of all political power within the territory over which it has been made the ruler, and that it must necessarily possess or be the final exponent of complete sovereignty. “ Sovereignty,” says Dr, von Holst, “ is a unit.” Assuming, as he does, that this unit is to be separated from all other sovereignties by territorial lines, and by those exclusively, he naturally assumes that the united people which has created a government over all the States must necessarily be sovereign over all in the sense of his definition ; and to discover how it became sovereign he looks back to the proceedings which antedated the formation of the Constitution, and, by a sort of fiction to which the facts must be made to conform, he finds that the Congress of delegates which declared the independence of the States necessarily took to itself thereby the sovereignty which previously had been in the British government. It was the sovereign people of the United States, therefore, which formed and adopted the Articles of Confederation ; and the declaration therein that each State retained its sovereignty was baseless in fact and a blunder of the statesmen who formed them, because sovereignty was never in the States, and accordingly could not be reserved. So also the C stitution of the United States, although by the use of the most careful terms it had proceeded to assign to the federal government the powers which the United States as a sovereignty should possess, reserving others to the States, was itself adopted as a charter of government for a sovereignty which, inasmuch as sovereignty must be a unit, would necessarily be itself the embodiment of all authority whatever. Had Dr. von Holst followed carefully the decisions of the federal Supreme Court, which, as already stated, on all questions which come properly before it are final and authoritative, and are to be respected and obeyed by all citizens and all departments of government, either state or national, or had he not been so strongly impressed with the belief in the demagogy of the discussions in Congress upon constitutional questions, he could hardly have been brought so readily to the discovery of a sovereignty of the sort he has in mind in a federal government, or in the united people which created it; since neither the government nor the people in their aggregate capacity ever at any time possessed, within the limits of one of the States, the power to pass a law to regulate any one of the domestic relations, or to lay out a common highway, or even to punish a common disturber of the peace.

Said Daniel Webster in one of his great speeches, " That the States are sovereign in many respects nobody doubts; ” and the several departments of the federal government, from the time of Washington to our own time, have had no difficulty in accepting tlie postulate that the sovereignty of the Union, though complete and a unit within its proper limits, has bounds besides those which are territorial, — bounds clearly discoverable in the Constitution itself, where they are carefully prescribed when the powers of national government are enumerated.

“ Verily,” says the author in closing this volume, “signs and wonders would have to be seen if this Union [the Union under the Constitution of 1789] was to outlast another presidential election.” The signs and wonders were not to appear, but the Union was to outlast many a presidential election; and radical as were the changes that were made during the period of reconstruction, the Constitution of 1789 was still to remain the charter of our government. Changes which might or might not be radical were anticipated when the Constitution itself was made, and were provided for; and however great or important any of them may prove to be, they work no revolution ; they do not overturn the work of the fathers; but in contemplation of true constitutional law, they only, in view of such changed conditions as may call for them, tend to perfect it.