ization. "No state, without its consent, shall be deprived of its equal suffrage in the Senate." God forbid that the people should ever be led to give up the safeguard of the local commonwealths, the idea of local self-government which has been to England and to us the life of liberty. God forbid that the people should ever import the imperial policy of consolidation, which has made France the sport, now of a despot, now of a mob, at Paris. I have spoken, not of what is probable, but of what is possible.

§ 116. Legality of the amendment abolishing slavery. — In the present connection it is proper to examine briefly the legality of the late amendment abolishing the status of slavery. While the measure was in the form of a proposal before Congress and the people, it was opposed on the ground that it was unconstitutional; that three fourths of the states could not make it binding upon the dissenting one fourth. Since its adoption, there has still remained a feeling in some portions of the country, there has still been expressed an opinion by certain public men and jurists, that it is a mere nullity. These facts furnish an ample reason for dwelling a moment upon the subject.

The amendment is as follows: "Article XIII. of the Amendments: Section I. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction. Section II. Congress shall have power to enforce this article by appropriate legislation."

§ 117. The most important objection to the legality of this additional article of the Constitution which has been urged by its opponents, will be found, when examined, to rest upon a denial of the national supremacy, and an assertion of state sovereignty. It is urged, with most logical accuracy of deduction from the assumed premises, that as each state is originally sovereign, its inherent attributes and capacity cannot De any further limited or restrained without its consent; and that as the Constitution is the work of the independent supreme states, the provision as to amendments must be confined to

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.

I need not repeat the argument which has already been advanced against this entire theory. If the national theory be the correct one, this amendment is plainly within the power 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

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 consent. The denial of power to amend would, therefore, extend to many other subjects besides the institution of slavery.

§ 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.

§ 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 he 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 he late war the claims of the states to supremacy had beer.

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 con

sciousness.

PART SECOND.

IN WHAT MANNER AND BY WHOM IS THE CONSTITUTION TO BE AUTHORITATIVELY CONSTRUED AND INTERPRETED; OR, THE MEANS AND COMBINATIONS FOR ASSURING THE OBSERVANCE OF THE FUNDAMENTAL LAW.

§ 121. It was shown, in the Introductory Chapter, that the study of Political Law involves not only the questions, In whose hands is placed the exercise of governmental powers? and, To what laws is this exercise subjected? but also the question, By what means and combinations is the observance of these laws assured?1 In other words, this dep.rtment of jurisprudence includes the formal organization of the government, the distribution of powers and functions, and the checks and sanctions by which officials are kept within the limits assigned to them. I now proceed to a brief examination of the last of these questions.

§ 122. The Constitution of the United States is a Law, issued by the Supreme Power in the nation, the people, as a collective political unit. This law, thus uttered by the people in their sovereign capacity, is, in some respects, addressed to and binding upon the individual members of the body politic; in most respects, it is addressed to and binding upon the different classes of officials who make up the government. Now, that an utterance of the Supreme Power may have a compulsive character, that it may truly be a law, there must be connected with it some sanction, some means of insuring obedience, of protecting the rights and enforcing the duties which it creates. Without this sanction, it would lose all the elements of a command, and become a mere request. This principle, which is confessedly true of ordinary legislation directed against the individual members of society, is no less true of the organic law directed against the govern

1 See § 10.