changes in the detail of the organization, or at all events to such changes as do not interfere with the rights and powers of the local commonwealths.

which has already been If the national theory be plainly within the power

I need not repeat the argument advanced against this entire theory. the correct one, this amendment is and capacity of Congress to propose and people to adopt.

§ 118. But certain opponents of the measure seem to have joined to their general denial of authority in the people, a special denial in this case, grounded upon the assumed peculiar character of the institution of slavery. They have urged that it is a domestic institution of the states, and is therefore beyond the reach of the nation even in the exercise of its reconstructive functions. Now it is true that all rights which flow directly from state legislation are in exactly the same sense domestic; and unless all such are absolutely secure from limitation and restraint by a constitutional amendment, there is no special element of domesticity in slavery which can protect it. Slavery derives its existence solely from state laws; so also do the rules which regulate the status of marriage, the ownership and descent of lands, the execution of wills, the administration of the estates of deceased persons, the jurisdiction of local tribunals, the creation of local corporations, the determination of what persons may vote for members of the lower House of Congress, and a thousand other rights, duties, and capacities. Do not all of these subjects rest upon the same foundation, and are they not all finally subordinate to the higher power of the one body politic? The lawfulness of an amendment cannot be doubted which would take away the present right of the states to prescribe the qualifications of congressional electors, and transfer the control over that matter to Congress. No one except a partisan of state sovereignty will deny that the people may withdraw from the separate commonwealths all power to create banks, and may commit the currency entirely to the care of the general government. If it were thought expedient, an amendment might plainly be adopted giving Congress the power to establish throughout the country uniform rules respecting marriage, the ownership and

X

descent of lands, the execution of wills, the administration of estates. Such a change would only introduce provisions of the same general character as that which now confers the right to establish uniform rules respecting bankruptcies, and many strong reasons of convenience could be urged in favor of the step. But marriage, ownership, succession, and the like, are as clearly domestic in their character as slavery; because they relate to individuals in their private, and not in their political capacities, and because they are at present regulated by state laws alone. Indeed, those who intelligently deny the power of the people to adopt the amendment abolishing slavery, must fall back upon the view which considers the separate states as originally and now sovereign communities, in whose policy and functions no change can be made without their own conThe denial of power to amend would, therefore, extend to many other subjects besides the institution of slavery.

sent.

§ 119. I have now finished the first general division of the subject, and have answered the question proposed at the outset, What is the Constitution, and by whom was it created? I think that it has been demonstrated from the history of the country, from the controlling provisions of the instrument itself, and from the dormant powers which it recognizes as existing in the people, that the Constitution was created by one indivisible nation, one civil society possessing political sovereignty — the people of the United States, and that it is the organic law of that nation.

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§ 120. I hardly need apologize for dwelling so long and so minutely on this theme. The important lesson in which the public mind now demands to be instructed, is that of our own inherent nationality. It cannot be denied that an attachment, a devotion to the Union, pervades the great mass of citizens. The blood which has been poured out, the treasure which has been expended, the burdens which have been cheerfully assumed, abundantly attest this fact. But this has been rather the result of a sentiment, than of an enlightened conviction. The sentiment is powerful in impelling to action, but it should be rooted in a deliberate opinion. For many years prior to the late war the claims of the states to supremacy had been

persistently advanced; the true theory ignored; the teachings of our fathers forgotten. This process had wrought its complete results in the Southern States; that it had not done the same in the Northern, was not owing to any lack of endeavor. Now, when it is universally conceded that the extreme theory of state sovereignty is, as a fact, overthrown; now, while old things are passing away, and we are in the midst of a general awakening to our higher and better interests, should the true ideas of nationality be deeply impressed upon the public consciousness.

§ 120 a.1 The theory of a nationality antecedent to the present Constitution, and of the states as necessary parts of the political system, has been accepted by the Supreme Court in the most positive terms, and must hereafter be regarded as the basis of all judicial construction which seeks to sustain the intrinsic sovereignty of the United States, and to protect the rights of the states as organic elements of the body politic. In Lane County v. Oregon,2 Chief Justice Chase said: "The people of the United States constitute one nation under one government, and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each state compose a state having its own government and endowed with all the functions essential to separate and independent existence. The states disunited might continue to exist. Without the states in union there could be no such political body as the United States. Both the states and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government acting with ample power directly upon the citizens, instead of the confederate government which acted with powers greatly restricted only upon the states. But in many articles of the Constitution the necessary existence of the states, and within their proper spheres the independent authority of the states, is distinctly

1 This section formed part of the Appendix in the former edition, but is now transferred to this place. ED.

2 7 Wall. 71, 76.

recognized. To them nearly the whole charge of interior regulation is committed or left; to them or to the people all powers not expressly delegated to the national government are reserved. The general condition was stated by Mr. Madison in the Federalist,' thus: The federal and state governments are in fact but different agents and trustees of the people, constituted with different powers and designated for different purposes."

6

The same doctrine was again announced and made the very basis of decision, in the great case of Texas v. Chiles.1 In the year 1867, before its relations with the nation had been restored, and a state government had been established and recognized as permanent by Congress, Texas commenced a suit in the Supreme Court under a clause of the Constitution which gives to that tribunal an original jurisdiction in controversies between a state and certain other parties. Unless Texas was a state, within the meaning of the organic law, the suit could not be maintained, and the objection having been raised by the defendant that it was not a state, the court was compelled to pass upon the question in limine. Chief Justice Chase, after describing the various significations which may be given to the word "state," and distinguishing between the state and the government thereof,2 proceeds as follows: 3 "The Union of the states never was a purely artificial and arbitrary relation. It began among the colonies. It was confirmed and strengthened by the necessities of the war, and received definite form and character and sanction from the Articles of Confederation. By these the Union was solemnly declared to be perpetual. . But the perpetuity and indissolubility of the Union by no means imply the loss of distinct and individual existence or of the right of self-government by the states." Repeating the language which he had used in the case before quoted, he adds: "Not only therefore can there be no loss of separate and independent autonomy to the states, through their union under the Constitution, but it may not be unreasonably said that the preservation of the 2 Ibid. 720, 721. 8 Ibid. 724, 725.

1 7 Wall. 700.

states and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible states." In accordance with this reasoning, it was held that the states joining in the secession at no time ceased to be component parts of the nation; that throughout the entire period of attempted separation, they possessed their political character as states; but that their governments became il legal, were thrown out of relation with the national government, and required to be reorganized and restored to their normal position.1 To these extracts I add by way of comment some observations which have been already published in another place, but which were professedly based upon these decisions. "In these opinions the Supreme Court, for the first time in its entire history, struck the solid ground of historic fact, and announced a theory which defines and preserves both the inherent nationality of the United States, and the separate existence, necessity, and local rights of the several states. By this theory the states did not create the Constitution and the nation, nor is the people found in existence for the first time in the Preamble. Historically, the nation preceded the Constitution; it took its rise with the first united movement of the colonies. The national idea springing out of their common origin, interests, and necessities, found its first open expression in their resistance to Great Britain; it was strengthened by the war;

1 It may not be inappropriate to quote a sentence from a letter written to me by Chief Justice Chase, dated August 9, 1869, shortly after the "You have appearance of the decisions above mentioned. He says: doubtless seen some traces of your own thinking in the late judgment of the Supreme Court in the case of Texas v. Chiles. That opinion was very much discussed, especially by the judges who concurred in it, and may, I think, be regarded as a tolerably correct expression of the views of the court as to the nature of the national Union, of its relations to the states, and of the principles of reorganization of states disorganized by rebellion, and of the restoration of national relations interrupted by civil war."