the educated classes, and especially the young men and young women who are preparing for the duties of citizenship by the culture received from the college, the academy, the school. Their very knowledge and discipline should fit them to give tone and character to public opinion; to lead, and not to be driven, in all political movements. Our higher institutions of learning, and our means for a widely diffused popular education, will have miserably failed in attaining the most important object for which they were designed, if they do not make young men and women better, wiser, truer, stronger American citizens. The customary course of study need not be disturbed; it performs its good office; it gives mental vigor, and imparts knowledge. But some direct and systematic instruction in the Political Law of the United States should form a necessary part of the work done not only in every college, but in every academy and common school. That this study has not been and is not thus universal, is glaringly inconsistent with the ideas upon which our government is based; it is antagonistic to those principles of popular education which have come to be regarded as axiomatic; it has been at least the partial cause of disasters that cannot be measured, of evils that well-nigh destroyed the nation itself.

§ 24. The analysis given at the commencement of this chapter suggests the general topics which fall within the department of Political Law. In applying these abstract notions to our own country, they must be modified by the peculiar character of the Constitution, by the anomalous and complicated nature of the political organization, by the double distribution of governmental functions, and by the definite limits placed upon the exercise of powers both by the nation and by the respective states.

In pursuing my design, the work will be divided into three parts, each to a certain extent independent of the others.

Part First will consider and answer the question, What is the Constitution, and by whom was it created? — or, in other words, will treat of the essential character of the organic law and of the body-politic which lies behind it.

Part Second will consider and answer the question, In what

manner and by whom is the Constitution to be authoritatively construed and interpreted? — or, in other words, will treat of the means and combinations for assuring the observance of the fundamental law.

Part Third will answer the question, What powers and duties are conferred or imposed upon the national government, and what conferred or imposed upon the several states?

PART FIRST.

WHAT IS THE CONSTITUTION, AND BY WHOM WAS IT CREATED! THE ESSENTIAL NATURE OF THE ORGANIC LAW, AND OF THE BODY-POLITIC WHICH LIES BEHIND IT.

CHAPTER I.

STATEMENT OF THEORIES:

NATIONALITY OF THE UNITED

STATES.

§ 25. IT does not require any extended argument to convince us that the question to be discussed in the first part of this work lies at the basis of all others. Upon the conceptions we form of the essential character of this organic law, and of the body-politic which lies behind it, must depend our notions of all the relations of the United States and the several commonwealths to each other, and of all the functions of the general and local governments. Is this Constitution the fundamental law of a nation? Then the government must, to some extent, possess national and comprehensive powers. Is it, on the other hand, a mere league, treaty, or articles of agreement and federation between sovereign and independent nations, who thereby delegate a portion of their inherent powers to the agents thus constituted? Then the powers must be limited by the very letter of the instrument which creates this agency, and are virtually under the management and control of the sovereigns who have delegated them. We are met, then, at the very threshold of the political structure we are to examine, by this most momentous consideration; and to it we should give our careful and candid thought and attention. The views we shall adopt will give shape and color to all our

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