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tant of these features of the Constitution and attributes of the government which testify to the nationality of the one body politic, and against any assumed sovereignty of the several commonwealths.

§ 98. I. The Declaration of Supremacy. -- First and foremost: "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." 1

What is the full import of this often-quoted declaration? It means that so far as the people of the United States, the nation, have seen fit to delegate a portion of their own inherent powers of legislation and government to their appointed rulers, just so far those appointed rulers are supreme throughout the land in the exercise of those delegated powers. It confers an absolute supremacy upon the general government, commensurate with the capacities which are granted at all. It also recognizes and proceeds upon the truth that the political society which assumed thus to transfer legislative and administrative functions to its creature, had the right to make such a transfer, in a word, had inherent and absolute sovereignty in itself.

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§ 99. It should be noticed also that this affixing the character of absolute supremacy to the laws of the United States, made in pursuance of the Constitution, is not confined to the direct legislation of Congress. According to the political organization which we have in common with England, a portion only of the actual law-making is done by the Congress or the legislature. The courts are also possessed of a function not only to expound and apply rules already known and recognized, but in reality to enact others whenever a proper occaarise in the decision of cases before them. A very may large part of the law which regulates the affairs of business and the private rights of persons, has never received the sanc

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1 Constitution, Art. VI. § 2.

tion of the legislature, but has found its sources and authors in the independent judiciary.1 The judgments of the United States courts, expounding a statute, construing the Constitution, or adding a new rule to the vast body of judicial legislation within their especial jurisdiction, are as much laws of the United States as the formal acts which have been passed by Congress and have received the assent of the President. The character of supremacy belongs to all these; the language of the Constitution is general, and includes every form and species of legislation which can exert a binding force upon the citizen. This is a truth which most writers have either entirely overlooked, or have failed to consider with the care that its importance demands.

§ 100. Interpretation of the Tenth Article of the Amendments. The force of the constitutional provision which we are considering (Art. VI. § 2), is not at all weakened by the tenth article of the Amendments, when the latter is correctly read and understood. This amendment is in the following words: “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." That a true construction may be put upon this amendment, it should be read in connection with the one which immediately precedes it, and which was adopted at the same time, as follows: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." 2

§ 101. The tenth article just quoted is often assumed to be a clear recognition of the former sovereignty of the separate states; but nothing can be more unfounded and fallacious than this claim. Those who insist upon this meaning must alter

1 See Pomeroy's Introduction to Municipal Law, Part I. chap. iii., where this subject of judicial legislation is considered at large.

See also Austin's Province of Jurisprudence, Vol. 2, Lects. XXXVII. and XXXVIII., in which the character of judicial decision as law is demonstrated, its peculiarities explained, and its merits and demerits, as compared with statute law, are set forth. The theory of Blackstone, that courts only declare what has always been law, and do not create, is conclusively shown to be not only false, but absurd.

2 Ninth Art. of the Amendments.

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the language, and read it as though the reservation of powers were made by the states and not to them. The clause should be compared with the second of the Articles of Confederation, which reads: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not expressly delegated," &c. The change of prepositions in the tenth amendment would apparently be a slight one, but it would be mighty in import and results. Powers are said to be reserved; and it is plain enough to whom the reservation is made, to the states and to the people. This provision, however, does not tell us by whom the reservation is made; that fact must be gathered from the history of the nation, from the whole tenor of the Constitution, from its entire scope and design, and from its preamble. The body which conferred portions of its powers upon the government which it had created, is alone capable of reserving the residuum to itself, or to any other body. This single political society which confers and which reserves is the people of the United States, the nation itself. By reading the two amendments together, this meaning is made plain. The ninth article speaks of rights retained by the people; the tenth, of powers reserved to the states. The former recognizes the people as the one source of all power, as they could not retain what they were not before possessed of; the latter speaks of some powers which had not been conferred by the people on its general government, as allotted to the states. The former points out the giver; the latter, the recipients.

I remark, in passing, that the term "United States," in the tenth amendment, plainly describes the government established by the Constitution, and not the political society which lies back of that organic law, and which was its author. The same term is often applied to both these subjects, although the Constitution generally uses the word "people" to designate the latter.

The Constitution

§ 102. II. The Status of Citizenship. recognizes our nationality by assuming that the status of citizenship, and the consequent duty of allegiance, exist independ ently of that instrument. In this, the present organic law is in

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bold contrast with the Articles of Confederation. government a mere federation of equal, sovereign states, united for certain purposes of administration, there could be no real nation and no citizenship. The status of the citizen had been clearly defined, and the word had attained a definite meaning, long before our fathers employed it in the Constitution. It implies a political society, a nation, of which the individual is a member, to which he owes allegiance, and which is bound to give him protection. Now, it is to be observed that, while the Constitution nowhere in terms defines the status of citizenship, or declares what persons shall be admitted thereto, it does assume its existence, and provide for all the consequences that flow from the relation; the general government has exclusive power to admit persons of foreign birth to that condition; while the article in relation to treason 1 recognizes the duty of allegiance, for the essence of the crime of treason is the violation of allegiance. The word "allegiance" is fruitful in meaning. Etymologically it is the binding of the citizen by a chain of duty to the body-politic of which he is a member. It therefore implies a nation and his own membership thereof. Senator Mason, of Virginia, and other partisans of state sovereignty, were strictly logical in asserting that they owed allegiance only to their own commonwealth, and not to the United States.

§ 103. III. The Proprietorship of Public Lands. — The Constitution recognizes our nationality in providing for the ownership by the United States of all new, unappropriated public lands within the borders of the states and territories.2 The King of Great Britain is said to be the ultimate owner of the soil, and is the proprietor of all the domain not allotted to private holders. The United States succeed to his title. During the Confederation, while the idea of nationality was obscured, the states separately ceded to the general government whatever title had been claimed by either of them to all unappropriated Western lands, and only retained the proprietorship of that within their immediate territorial limits. This title has been continued, and has been extended over all sub1 Art. III. Sec. III. 2 Art. IV. Sec. III. § 2.

sequent acquisitions by purchase or conquest. Nor does the ownership pass from the United States, and vest in a particular state, when the latter becomes organized as a separate commonwealth, throws off its territorial character, and is admitted as a state into the Union; but the nation retains its property, and from it must all private purchasers derive their rights. This original and paramount dominion in the newly acquired soil which may be added to the territory of the country, is a high attribute of sovereignty, and indicates that the United States is an independent body-politic, and not a mere agent to carry on certain governmental acts.

§ 104. IV. The Legislative Powers. The Constitution. recognizes our nationality in the essential character of the legislative powers that are conferred upon Congress. It will be remembered that it is not the number, but the extent, of these powers which stamp them as national. The people have all powers; they may retain some dormant; they may delegate others to the general government; they may permit others to be exercised by the separate states. Now, it is evident that those which they have entrusted to their immediate agent the general government, which represents the whole are of a far higher class, more imbued with the essential attributes of sovereignty, than those which they have permitted to be exercised by the state governments, which represent local and partial communities. What are some of the more important of these powers which the Congress may wield and enforce against the individuals who compose the total aggregate?

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§ 105. Those which are held exclusively by the United States, or, in other words, which are denied to the separate states, are the following: The regulation of commerce; the admission to citizenship by naturalization; the coining of money; the establishment of post-offices; the granting of patent and copy rights; the declaring of war; the raising and support of armies and navies, and the government of the same. In addition, the Congress has unlimited power to lay taxes of all kinds, some to the exclusion of the states, as duties on imports; others in connection with the states; with the further

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