subsequent opinions upon the various matters which shall come under discussion. If we shall fall into error here, that mistake will follow us through our entire course of exposition. If we are correct here, we shall hardly deviate far from the true path in our future progress.

§ 26. The statesmen and jurists of our country have perceived the necessity of establishing this fundamental point, and have devoted to the solution of the question all the resources of learning, eloquence, and partisanship. It was first mooted during the existence of the Confederation; it was the subject of animated debates in the Convention; it was discussed with extremest zeal while the Constitution was before the people, awaiting its adoption; it formed the subject of the first judicial investigation made by the Supreme Court into the powers of the general government; it has since received the attention of all the public men who have directed the course of popular opinion; it might have been considered as settled, so far as united legislative, executive, and judicial construction can establish any controverted doctrine; but it again arose in these late years, and passed from the forum and the senate-house, from the arena of peaceful debate and the contests of intellect, to the arbitrament of the battle, to the fierce discussion of the battery and the bayonet, to be finally and forever put to rest by the force of the nation wielded in solemn war.

SECTION I.

THEORIES WHICH HAVE BEEN PROPOSED AND ADVOCATED.

§ 27. If we examine and compare the various writings of public men and the arguments and judgments of courts, which have been put forth at intervals during the existence of the present Union, we shall discover that three theories have been proposed and advocated, by different schools of statesmen and jurists, in relation to the essential character of the Constitution itself, and of the United States as a body-politic. These theories I shall state in a manner as brief and precise as possible.

It is not claimed that all legislators, judges, or statesmen, who have been ranged on the one side or on the other, have expressed themselves in the same unqualified terms. While some have followed out their processes of reasoning to the inevitable results, others have stopped short of the logical conclusions from their premises. Others still, and among them. some of the most eminent, have seemed to hesitate between two; while advocating measures, or rendering decisions, which appear to result only from the adoption of one of these theories, they have used language appropriate entirely to another.

§ 28. I. The first theory regards the United States as a nation, and its Constitution as the organic, fundamental law of that nation. This nation, or in other words the collective People of the United States as a political unit, existed prior to the adoption of the Constitution, and was not therefore called into being as a consequence of that instrument. The Constitution was not the work of the separate states, regarding those states simply as organized governments; nor of the peoples of those states, regarding those peoples as separate and independent sovereign aggregates or communities; but it was the work of the People of the United States as a whole, as a political unit, not voting together, it is true, in the process of adoption, as a consolidated mass of electors, but, for reasons of policy and convenience, acting in their respective commonwealths. As a necessary consequence, the powers held by the general government were not delegated to it by the several states, regarding those states simply as organized governments; nor by the peoples of the several states, regarding those peoples as separate and independent sovereign aggregates or communities; but were delegated to it by the People of the United States as a whole, abstracted from their local relations to the various commonwealths of which they were also members; although, in the very process of delegation, this one people did not vote together as a consolidated mass of electors, but, for certain reasons of policy and convenience, acted in their respective states. The powers not thus granted by the people of the United States to its general government

were not reserved by the several states to themselves; for, as these states as such did not grant any powers, they could not reserve any. But they were reserved by the People of the United States to themselves, or to the several states. Thus the People of the United States, as a nation, is the ultimate source of all power, both that conferred upon the general government, that conferred upon each state as a separate political society, and that retained by themselves.

§ 29. This, in substance, is the view of the Constitution advocated by Hamilton, by Jay, by Marshall, by Story, by Webster, and upheld by the judgments of the Supreme Court during its earliest years, and while it continued under the leadership of its most illustrious head, Chief Justice Marshall. I would not be understood as claiming that all these great men have maintained the whole of the foregoing propositions in an unqualified manner; and particularly it is conceded that the last of the series that which relates to the reservation of powers to the states by the People of the United States, and not by the states themselves has rather been implied, than clearly and dogmatically stated, by many of the adherents of this school. Even Marshall and Webster, the great champions of the inherent nationality of the People of the United States, have sometimes used language more appropriate to advocates of the theory to be thirdly stated. But I give the foregoing abstract, without hesitation, as embodying necessary and legitimate conclusions from the whole course of their reasoning; while, by most of the earlier expounders, all these results were reached without hesitation, and were set forth in language pointed and cogent, and in a manner unreserved. In the most recent times, this theory has been developed with great precision and fulness by writers and juridical students of eminent ability and learning. Among these may be mentioned John Codman Hurd, in his "Essay on the Law of Freedom and Bondage in the United States," a treatise which, more than any other American work, has received the commendation of European jurists; O. A. Brownson, in his "American Republic"; and George P. Marsh, in a series of letters communicated to the "Nation."

§ 30. II. The second theory denies that the United States is now, or ever was, in any true sense of the term, a nation. It assumes that, by the revolt of the colonies, there resulted thirteen independent and sovereign states or nations; that these thirteen states retained their separate sovereignty during the confederation; and that they did not resign this high attribute under the present Constitution. It does not regard that Constitution as an organic and fundamental Law for a single body-politic, but as a compact, as an instrument in the nature of a league, treaty, or articles of association between the separate, independent, sovereign states. It represents these several sovereign states as granting or delegating a portion of the supreme powers which they possessed to the government of the United States, which they had thus constituted as a limited agent, for all and for each of them, to fulfil certain well-defined duties, and assume certain well-understood functions, which this agent could advantageously fulfil and assume. As a consequence, this agent - the general government— possesses no powers but those given in express terms, or by implication absolutely necessary. Nor has it the capacity by itself, or by any of its departments, legislative, executive, or judicial, to decide, with authority and as a finality, of the extent of those delegated powers; but the sole capacity to determine this most momentous question rests with each particular state for itself. In the practical operation of this capacity of determination, no state is in the least bound by act of Congress, order of President, or judgment of Supreme Court, nor even by the decisions of its sister commonwealths, but may judge finally and conclusively for itself. As a further consequence of this inherent capacity of determination, any state, after it has authoritatively decided that the general government has transcended its proper limits, has assumed and exercised functions not belonging to it, may treat the compact as broken, the trust as forfeited, the agency as ended; and may retire from the confederacy, thus resuming all the powers which it had before delegated to the United States. Lastly, as the several independent, sovereign states were the principals which intrusted a portion of their attributes to the general

government, they reserved to themselves the residuum not thus expressly parted with; and are therefore, in theory and in fact, the source of all political functions both of themselves and of the United States. We are, then, not one nation, one people, but an assemblage of nations, united for some specific purposes by a friendly league into a loose federation. No citizen, therefore, owes allegiance to the United States, as Mr. Mason, of Virginia, observed in the Senate; but each person owes allegiance only to the State of which he is a member.

§ 31. This theory found friends and advocates at the very earliest period of our existence as an Union, and has continued to receive the support of a large number of public men down to the present time. Mr. Jefferson gave it the aid of his powerful influence in his private correspondence and in many of his public acts, although, while at the head of the nation as President, he practically abandoned it. It received a new impetus from the vigorous, keen, impracticable intellect of Mr. Calhoun, in whose writings it was pushed to its logical consequences, and whose disciples have most zealously propagated their faith until it became an acknowledged article in the political creed of most Southern statesmen, and did not want believers in all other sections of the country. It has, however, never received the assent of Congress, or of the Executive, or of the Judiciary of the United States, although many representatives and senators, and a few judges, have attempted to commit their respective departments to its cause. Baffled in the legislature and the courts, it finally sought the field; and, as it appealed to the sword, may not American citizens in all portions of our common country unite in the devout hope that it has perished by the sword?

§ 32. III. A third system of construction occupies a middle ground between these two extremes, and, while avoiding the pernicious and destructive consequences of the latter, does not adopt all of the enlarged and national views of the former. This theory regards the states as originally independent, sovereign common wealths, but as having surrendered to the United States a portion of their sovereignty, to be held, not at the will and pleasure of the single states, but absolutely