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citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every state and terrritory in the United States to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to have the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white persons, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding."

This act took effect on the 9th day of April, 1866, which was prior to the ratification of the fourteenth amendment. This amendment seems to have been mainly copied from, or modelled after the section above quoted from the civil rights bill. This section confers upon persons of the African race the power to make and enforce contracts. The power as conferred in the first part of the section is without limitation, but in the subsequent part of the section it is restricted and qualified by the plain and express declaration, that the rights conferred shall be enjoyed and exercised, in the same manner and to the same extent, "as is enjoyed by white persons." The only force and effect of this section was to confer upon persons of the African race the same civil rights, privileges, and immunities as had been enjoyed by persons of the white race.

It, therefore, becomes necessary for us to inquire whether Congress possesses the power, under the federal constitution, to pass a law regulating and controlling the institution of marriage in the several states of this union; and this will involve a brief inquiry into the nature and character of our complex system of government. Anterior to the adoption of the federal constitution, the states existed as independent sovereignties, possessing supreme and absolute power over all questions of local and internal government. The states

were independent of each other, and each possessed the power to regulate and control its domestic institutions. The government of the United States was not created by the states acting in their sovereign capacity, but the people of the several states, acting in their individual capacity. The federal government was not created for the purpose of regulating and controlling the domestic and internal affairs of the states, but the purposes of its creation are declared in the preamble to the constitution, and these are "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty." The states being independent, they recognized no common head. They were competent to manage and conduct their local and internal affairs, but they needed a superior and central power to regulate commerce and intercourse between the states and with foreign nations. Indeed, the whole frame of the constitution supports this construction. All the powers which relate to our foreign intercourse are confided to the general government. Congress has the power to regulate commerce with foreign nations, and among the states, to define and punish piracies and felonies committed on the high seas, and offences against the laws of nations; to declare war, to grant letters of marque and reprisal; to raise and support armies; to provide and maintain a navy; to coin money, and regulate the value thereof; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies in the United States; to establish post offices and post roads; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. The powers conferred on the general government are of a general and national character, and none of them authorize or permit any interference with, or control over, the local and internal affairs of the state. The general government is one of limited and enumerated powers, and it can exercise no power that is not expressly, or by implication, granted. The people being the inherent possessors of all governmental

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ly the whole charg left; to them, and to egated to the nationa condition was wells thus: 'The federal different agents and different powers and

Mr. Justice Nelso preme Court of the U lectorv. Day, 11 Wal. struction of the cons powers vested in the constitutions remain

authority, it necessarily and logically resulted that all powers not granted to the general government, or prohibited to the state governments, were retained by the states and the people, but the great, wise, and illustrious men who framed our matchless form of government were so jealous of the right of local self-government that they were unwilling to leave the question of the reserved powers to implication and construction. Hence, within two years after the adoption of the federal constitution, twelve amendments thereto were submitted by Congress to the states for ratification, which were ratified. The ninth and tenth amendments read as follows:

“gth. The enumeration, in the constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”

10. 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."

Chief Justice CHASE, in Lane County v. Oregon, 7 Wal. 76, draws with great clearness and force the true line of distinction between the powers of the federal and state governments. He says, “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 uld 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 recognized. To them near.

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ly the whole charge of interior regulation is committed or left; to them, and to the people, all powers not expressly delegated to the national government are reserved. The general condition was well 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.'

Mr. Justice Nelson, in delivering the opinion of the Supreme Court of the United States, in the recent case of The Collector v. Day, 11 Wal. 113, says: "It is a familiar rule of construction of the constitution of the Union, that the sovereign powers vested in the state governments by their respective constitutions remain unaltered and unimpaired, except so far as they were granted to the government of the United States. That the intention of the framers of the constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely: 'The powers not delegated to the United States are reserved to the states, respectively, or to the people.' The government of the United States, therefore, can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. The general government and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former, in its appropriate sphere, is supreme; but the states within the limits of their powers not granted, or, in the language of the tenth amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the states.

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"Upon looking in the constitution it will be found that but a few of the articles in that instrument could be carried into practical effect without the existence of the states. Two of the great departments of the government, the executive and the legislative, depend upon the exercise of the powers, or

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upon the people of the states. The constitution guarantees to the states a republican form of government, and protects each against invasion or domestic violence. Such being the separate and independent condition of the states in our complex system, as recognized by the constitution, and the existence of which is so indispensable that without them the general government itself would disappear from the family of nations, it would seem to follow as a reasonable, if not a necessary, consequence, that the means and instruments employed for carrying on the operations of their governments, for preserving their existence and fulfilling the high and responsible duties assigned to them in the constitution should be left free and unimpaired; should not be liable to be crippled, much less defeated, by the taxing of another government, which power acknowledges no limits but the will of the legislative body imposing the tax, and, more especially, those means and instrumentalities which are the creation of their sovereign and reserved rights, one of which is the establishment of the judicial department and the appointment of officers to administer their laws. Without this power and the exercise of it we risk nothing in saying that no one of the states under the form of government guaranteed by the constitution could long preserve its existence. A despotic government might. We have said that one of the reserved powers was that to establish a judicial department. It would have been more accurate and in accordance with the existing state of things at the time to have said the power to maintain a judicial department. All of the thirteen states were in the possession of this power, and had exercised it before the adoption of the constitution, and it is not pretended that any grant of it to the general government is found in that instrument. It is, therefore, one of the sovereign powers vested in the states by their constitutions, which remained unaltered and unimpaired, and in respect to which the state is as independent of the general government as that government is independent of the states.'

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