페이지 이미지
PDF
ePub

Direct manifestations through public opinion, and through the irregular exhibi-

tion of power. $ 23.

Indirect manifestations of sovereignty, through governmental agencies, as, the

electors, the legislative, executive, and judicial departments, and the Constitu-

tional Convention. $ 24.

Relative rank of these five systems of agencies. $ 24.

The doctrine of constitutional presumptions stated. $ 25.

Corollaries by their aid deduced from the foregoing principles. $ 25.

The locus of sovereignty, as a question of fact:

I. In foreign states. $26.

II. In the United States of America. $$ 27–53.

(a). The question considered from the point of view of the elementary

principles above developed. 88 27-29.

The definition of sovereignty considered and applied. $ 27.

The marks or tests of sovereignty, given by Austin, applied. $ 28.

The additional marks or tests before stated, applied. $29.

(6). The question considered from the point of view of historical

facts and principles tending to determine the question of Amer-

ican nationality. $$ 30–50.

What it is to be a nation. $30.

What it is not to be a nation. $31.

In the light of these definitions, that the United States consti-

tute a nation, inferred

1. From the fact, that, in their development there is ob-

servable a perfect conformity to the method of Na-

ture in the genesis of nations. $$ 32–35.

The method of Nature exemplified. SS 33, 34.

Capital steps in the progress of the United States, speci-

fied. $$ 34, 35.

2. From the mode of ratification of the Federal Consti-

tution. $S 36-38.

View of the “ States Rights School.” $ 37.

Observations on the mode of ratification adopted. $ 38.

3. From the expressed opinions of contemporary states-

men, friends as well as enemies of the Constitution,

$$ 39-41.

4. From the arguments employed to defeat the Federal

Constitution in the Conventions called to ratify it.

SS 43–45.

5. From judicial decisions and the opinions of statesmen,

historians, and publicists subsequent to the establish-

ment of the Constitution. $$ 46-48.

Opinion of the Supreme Court of the United States, per

Wilson, J. $ 46.

Opinions of Washington, Dr. Ramsay, C. C. Pinckney,

and Charles Pinckney. $47.

Opinions of Mr. Grimke, Chancellor Kent, John Quincy

Adams, and Judge Story. $ 48.

Opinion, expressed by Madison, that the States never

were sovereign. $49.

Decision to the same effect by the Supreme Court of

the United States. $ 50.

Observations on the foregoing authorities, and conclu-

sion stated, that sovereignty resides in the American

people, or nation. $ 51.

The question of allegiance, considered. $ 52.

Quasi-sovereignty and quasi-allegiance. $53.

Allegiance due to the people of the United States only.

SS 52, 53.

How sovereignty inheres in the people of the United States. $$ 54–61.

Two answers to the question, namely :-

(a). That sovereignty resides in the people, considered simply, that is, as a

unit, without State or other internal discriminations; and

(6). That it resides in the people only as discriminated into, and acting in,

groups, by States. $$ 54–61.

The exercise of sovereignty distinguished from the possession of origi-

nal sovereign powers. $ 55.

The regular distinguished from the possible exercise of sovereignty.

$ 56.

Application of these principles to the United States. $ 57.

Judging by the regular exercise of sovereignty under the Federal

Constitution, sovereignty resides in the people of the United States

as discriminated into groups, by States. $ 57.

Judging by the possible exercise of sovereignty, that power resides in

the people simply, without State or other internal discriminations.

$ 57.

The capacity in which the States, under the existing Federal Constitution,

exercise sovereignty, — sometimes in that of State Governments, and sometimes

in that of subordinate peoples, together constituting the American nation.

SS 58, 59.

View of John Austin. $ 60.

View of Dr. Brownson. 8 61.

Meaning of the term “sovereign" when used in this work in reference

to the States of the Union. $ 62.

The term "Constitution " defined. Constitutions discriminated into two kinds —

Constitutions as objective facts, and Constitutions as instruments of evidence.

$ 63.

Constitutions " as they ought to be," framed for imaginary commonwealths, con-

trasted with Constitutions as objective facts. $ 64.
I. Nature of Constitutions, as objective facts, considered ; and herein, principally,

of the question, whether Constitutions as objective facts are founded on

compact. SS 65-67.

Are Constitutions, as instruments of evidence, founded on compact ? $ 68.

When discrepancies exist between the Constitution of a state as a fact, and its

Constitution as an instrument of evidence, which has the superior validity ?

$ 69.

II. Specific varieties of Constitutions, as objective facts. $ 70.

Constitutions, as instruments of evidence, discriminated --

First, with reference to the mode in which they originate, into two classes, viz. :

1. Cumulative Constitutions. $$ 71, 72.

2. Enacted Constitutions. $$ 71, 73.

Secondly, with reference to their general characteristics as sources of evidence,

into two others, viz. :

3. Unwritten Constitutions. $$ 71, 74.

4. Written Constitutions. $$ 71, 74.

Written and unwritten Constitutions distinguished. $$ 74, 75.

Consequences of this distinction. The two kinds, how construed.

$ 76.

Advantages of written Constitutions. $77.

Disadvantages of written Constitutions. $ 78.

Opinion of De Maistre. $ 78, note 1.

Advantages of unwritten Constitutions. $ 79.

Disadvantages of unwritten Constitutions. $ 80.

Difficulty of striking a balance between them. Requisites for safety

under each, considered. SS 81-83.

In the United States all Constitutions, considered as instruments of evidence

except two, have been written Constitutions. $ 84.

Distinction between a fundamental law, or Constitution, and an ordinary munici-

pal law. SS 85-87.

Two distinct varieties of Constitutions in the United States,—those of the General

Government and those of the States. Distinction between the two. SS 89-91.

Rules of construction applicable to each. $91.

The Constitution of the United States a part of the Constitution of each State,

and the Constitutions of all the States parts of the Constitution of the United

States. $ 92.

Both kinds form governments of limited jurisdiction. $ 93.

Which of the two is supreme ? SS 93, 94.

Necessity of keeping the two kinds in their operation distinct. $ 95.

Opinion of Mr. Webster quoted. $ 95.

Internal structure of the American Constitutions. $96.

Constitutions commonly consist of three parts :

1. The Bill of Rights. Object and contents of a Bill of Rights. SS 96-99.

The Federal Constitution has no Bill of Rights, why. $ 98.

2. The Frame of Government, description of. $s 100, 101.

3. The Schedule. Object and contents of a Schedule. $ 102.

Precedents showing the extent to which a Schedule has been em-

ployed. $ 103.

Requisites to the legitimacy of Constitutional Conventions. $$ 104–259.

Preliminary observations.

Meaning of the term “ legitimacy,” and its derivatives. $S 105-108.

Meaning of the term “ revolution,” and its derivatives. $$ 109–111.

Importance of defining the term revolution. Doctrine of precedents. $ 112.

I. The proper mode of initiating or calling a Convention.

The question considered from the point of view of theoretical principles.

S$ 114–124.

But two modes possible :-

1. By the intervention of unofficial persons; that is, by private citizens,

giving expression, perhaps, to a general desire. $ 114.

Observations on this mode. SS 114, 115.

2. By some authentic act of the sovereign body, through some branch of the

existing government. $ 116.

Observations on this mode, in general. $ 116.

Particulars involved in the term “mode.” First, agencies; second, man-

ner of proceeding. $ 117.

Examination of the various governmental agencies, with respect to fitness

to discharge the function of calling Conventions. $$ 118–121.

(a). The electors. $ 118.

(6). The judicial department. $ 119.

(c). The executive department. $ 120.

(d). The legislative department. $ 121.

In what manner a Convention should be called. $S 122–123.

Though a Convention be illegitimate, the Constitution framed by it may

become legitimate, how. § 124.

The proper mode of calling a Convention, looking at the question from

the point of view of precedents. $$ 125–259.

Conventions thus far held divided into two great classes :

(a). Such as were held during the revolutionary period, from 1775 to

March 1789. SS 125–169.

History of the times in which these Conventions were called, and

the general causes by which their legal character was deter-

mined. $$ 126-130.

Advice of the Continental Congress to Massachusetts, New

Hampshire, Virginia, and South Carolina, in 1775, to form in-
New Hampshire Convention of 1775. History and character of.

dependent governments therein. $$ 127, 128.

General recommendation of the Congress to all the Colonies, of

May 10, 1776, to the same effect. $ 128.

Observations on this recommendation. $ 129.

Conditions and elements of the problem to be solved by our

fathers. § 130.

on the question of their legitimacy as a Constitution. $ 161.

Defects of the government of the Confederation. $ 162.

Virginia Resolutions of 1786, and the Annapolis Convention.

$ 163.

Recommendations of the Annapolis Convention. $ 163.

Observations on the Virginia Resolutions and on the Annapolis

recommendations. $ 164.

Action of Congress on these recommendations. Call of the sec-

ond Federal Convention. $ 165.

Character of this Convention. $ 166.

State Conventions called to ratify the Federal Constitution.

History and character of. § 167.

« 이전계속 »