other which was taken when the Constitution of the United States was formed, and this nation was born.

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It may be asked, Is there not here a division of sovereignty and of power, which shows that much is wanting to constitute the full strength of a national government? I answer, The national government has at this moment, by force of the constitution, all the strength absolutely all-which it needs, or could profitably use, as a central national government. I answer, next, that, by the provisions of our national and State constitutions, the reserved powers of every State may be, and, so far as that State does its duty, will be, prepared and developed to their utmost efficiency, and then imparted to the nation in its need. Did not the efforts made by all the States during the late war prove this?

The constitution thus framed makes use throughout of State machinery. More than this, it recognizes the States as separate organizations; and we shall presently see that it watches with the most careful consideration over the interests and safety of the smaller and weaker States which thus came into union with larger and stronger States. But through all this, and by means of all this, the one end and aim in framing the constitution, in adopting it, and in carrying out its various provisions through coming ages, was to ascertain and carry into effect the will of the majority.

This, we cannot understand too well, is a new thing upon earth. From the earliest times of recorded history there was never before an instance of a people, large enough to form a nation, perfectly liberated from all restraint, all government delivered over into their own hands, with no power on earth to restrain or coerce them, and then deliberately forming an organic constitution by which they should govern themselves, by the vote of the majority.

Because mankind had no experience of such a thing as this, our fathers had nothing to help them in their work but their knowledge of human nature, their earnest desire to secure the prevalence of right over wrong, and their wisdom in discovering the means of doing 80. To that wisdom we owe, under Divine Providence, our constitution; and great is the marvel that the experience of nearly a century, in good part a stormy and painful experience, should have revealed so few errors or deficiencies.

One of the greatest dangers to be guarded against was the abuse of their power by the majority. In all ages, the supreme power, the Sovereignty, whatever its form, had been abused. Emperors, kings, and absolute rulers, under any name, had sometimes been despotic, unjust, and cruel. When the sovereignty was given to a majority, what was to prevent that majority from tyrannizing over a prostrate minority? The answer to this question is, The constitution.

It accomplishes the purpose of curbing the will of the majority, so that while free for all good, it might be restrained from evil, by three means. First, the constitution itself, as the law of the law, as a declaration of the rights of all men, and a fixed and unyielding barrier against any assault upon those rights, exerts a powerful influence to protect the minority against the abuse of power by a majority Next, the checks and hinderances by which the will of the people is delayed by repeated and protracted consideration before it acquires the force of law; while it is only delayed, and not prevented from enforcing itself as law after it has received due consideration. This is accomplished mainly through the structure of the legislative body; and we shall treat of it more fully when we come to consider the form and functions of the body to which the power of making law is entrusted.

But most of all is the supremacy of law and right secured by the judicial power, its full authority, its independence, and its place and function as interpreter and defender of the constitution. This subject, also, which we deem of vital importance to a just comprehension of our constitution, we shall treat of more fully when considering the judicial power: its structure, its duty, and its value.

SECTION II.

THE RECONCILIATION OF STATE RIGHTS AND NATIONAL SOVEREIGNTY.

From the facts stated in the chapter on the history of the constitution, it will be seen that the greatest difficulty in forming and in adopting it arose from the reluctance of the people in the several States to relinquish any part of their independent sovereignty. They saw and they felt that if the United States became a nation, it must possess, in all national matters, sovereignty; and that, so far as it was sovereign, the several States were subordinate. As this was the great objection to the constitution, so the adoption of the constitution must be regarded as a yielding of the States on this point.

It must, however, be remembered, that while our nationality involved the giving up by the States of so much of their sovereignty as was necessary to constitute a national sovereignty, this necessity went no further. The several States gave up nothing which they could hold, and the United States be a nation. Here was the practical difficulty for those whose work it was to frame a constitution; and they displayed nothing less than a marvellous wisdom in overcoming

this difficulty, or in taking from the States and giving to the Union all that was necessary to make the Union a nation, and leaving to the States all that was not necessary for this purpose. Let us now

look at the provisions by which they effected this purpose.

The second clause of the sixth article of the constitution is as follows: "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding."

This article asserts and establishes the nationality of the Union, and the sovereignty of this nationality; for that is the necessary meaning and effect of making all laws and treaties made under its authority the supreme law of the land.

This sovereignty being established, the next question is, What does it embrace, or how far does it extend? The answer is, Just so much and so far as it is carried by the constitution itself, and not a jot farther. The constitution being a written instrument, the purpose of which was to create a national constitution by abstracting so much of the sovereignty of the States as was necessary therefor and putting together what was thus taken, the natural and just construction would have been, that whatever was not taken from the States, expressly or by necessary implication, was left to them. But to make this sure, Articles IX. and X. of the amendments were adopted. They provide, that "the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. . . . The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

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The constitution has been subjected in all its parts to the severest examination and the most acute criticism. But it may safely be said that no one has succeeded in pointing out clearly and rationally, any claim or assumption in the constitution of any right or power which the Union possesses or can exercise not necessary to our existence and prosperity as a nation. But the principles of construction above stated, and the amendments above cited, as they reserve to the States whatever is not taken from them, and as they give supreme authority to laws made under the constitution, required express declarations as to what subjects Congress could make laws about, and also as to what things the States should not do. The first will be found in the eighth section of the first article, beginning, "The Congress shall have power;" the second may be found in the tenth section of the same article, beginning, "No State shall," &c.

We shall have occasion hereafter, in the course of these comments, to refer more particularly to some of these permissions and to some of these prohibitions. Here we will only say, that a familiar principle of legal construction will apply to both of these enumerations; namely, that an enumeration which purports to be complete and exhaustive, excludes all items not expressly included.

A most important provision for the preservation of State rights is to be found in the peculiar construction of the Senate. The representatives in Congress are apportioned among the several States according to the number of their population. But the Senate is composed of two senators from each State. This provision is apparently a very simple one; but it is of extreme importance.

It was a compromise-more than ingenious, for it was a wise and just compromise-between extreme views, both of which were pressed with very great urgency. On the one hand, it was said to be of the very essence of a republican representative government that all its citizens should be equal in power and privilege. If the United States were to be a nation, it was to be a republic, and could not, without losing an essential quality of a republic, give to a portion of its people a distinct advantage in the exercise of political power over any other equal portion. Admit that a large State would have more power in the government than a small State, no citizen or citizens of the larger State would have more power than the same number of citizens in the smaller. If the larger State had more power, that only meant that its citizens, taken together, possessed the same power that they would have if, in the same number, they lived in small States; and why should their political power be taken from them because they united together to form a large State?

On the other hand, it was contended that, for many purposes, it must be considered that the States had come together to form a Union. They had, each one of them, occupations and interests which were peculiar to that State. If they joined with the much larger States in a government which was purely popular, the small must yield to the large in all things, and be crushed in the conflict. Because the Union would be a republic, much power must be given to a merely popular vote, or to majority of numbers. But because it was a Union formed from independent and sovereign States, who gave up much of their independent sovereignty for the sake of union, some regard must be paid to their rights as States, and an equality between the States must be conceded in some important points of political power.

This was admitted; and how much was conceded may be inferred from the fact that Delaware, with a territory of a little more than two thousand miles, and a population of about one hundred thousand,

has the same representation in the Senate that New York has, with a territory more than twenty times as large, and a population about forty times as large. Hence the two States have equal powers as to the acceptance or rejection of treaties, the confirmation of all appointments by the President, and in trials of impeachment. Moreover, as each State has as many electors of President and VicePresident as the whole number of its representatives and senators, the smaller States have in this important matter a power larger in proportion to the number of their population than the larger States possess.

But perhaps the most important advantage secured to the smaller States is, that they have equal power with the larger as to any amendments of the constitution, as they can be made only by three. fourths of the several States; and should there be an agreement in opinion or feeling between all, or nearly all, of the smaller States, it might come to pass that such amendments would be made or be rejected by much less than a majority of the whole people.

SECTION III.

THE DISTRIBUTION OF POWER.

There are three great governmental powers or functions. One is the executive, which carries all the laws into effect; another is the legislative, which makes all the laws; the third is the judicial, which determines whether that which is alleged to be law is in fact law, and which construes and interprets the laws, or declares what they mean, and how they apply to any particular case.

It is perfectly certain and obvious to any one who will think about it, that the union of these three powers in the same person or body makes him or it perfectly despotic. For if he who executes the laws makes them just as he pleases, and then construes and applies them just as he pleases, he must needs be a perfect despot, or, as the modern word is, an autocrat, which means one who has all power in himself.

Then it should be obvious to us, for it is quite as true, that progress away from despotism, progress in a well-ordered and guarded liberty, depends upon and may be measured by the degree in which these three great and fundamental powers of government are separated from each other, and each of them protected from the invasion of the others. Then the executive can do nothing but execute the laws which are made for him by one body and interpreted for him by another, over which he has no absolute control. Legislators