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annul the act of a State as well as the National government, which takes life, liberty, or property without due process of law, or which establishes inequality by statute.

The condition, too, of the slaves among their former masters demanded some interposition for their protection; and history has taught that no class with the exclusive right of government can refrain from legislation unfair to those who are disfranchised.

That a period of probation, or a gradual admission of the freedmen to the right to vote, would have been better, few can doubt; but, after Lincoln's death, it seemed to the most careful students of the subject, that the choice was peremptory between immediate enfranchisement for all or permanent disfranchisement, without hope of a future right for any. The unwisdom of the disfranchisement of the leaders of the South is most apparent. But when we consider that, after five years of civil strife, in which so much blood and treasure was wasted, the victors did not demand, as an atonement, the sacrifice of a single life not destroyed in battle, or for a violation of the laws of war; and remember, not only the decimations in Rome and the guillotine in France, but the explosion of the Sepoys by the English in India less than ten years before, and the military executions in South and Central America to-day; their magnanimity seems, indeed, without a parallel. The South failed in an attempt to accomplish a revolution for the security of slavery. Their failure was followed by a successful revolution effected by the North,202 which destroyed the institution that had been the canker in the body politic, and so cemented the Union as to make it stronger and more beneficial than before. At the start of secession, the Southern statesmen announced that they would never return without a reconstruction of the Union.203 On their return, they found that a reconstruction had been brought to pass. And their children now admit that what they obtained was better than what they sought." 204

202 See Maine, Popular Government, p. 245.

203 Supra, § 36, note 24.

204 The only histories of Reconstruction are by Blaine, in Twenty Years in Congress, vol. ii, which contains the best defence of the action of Congress

that could be made, and by Cox, in Three Decades of Federal Legislation. The latter book shows more appreciation of the extraordinary influence of Thaddeus Stevens upon the action taken. A bitter account of some of the events, written from the Con

§ 39. Seat of Sovereignty in the United States. According to the doctrines of jurisprudence which are usually accepted, there is a sovereign power in every form of government, incapable of control by law, every act of which has legal efficacy.1 The soundness of this position has in later years been impugned,2 and the writer has expressed his opinion on the subject in another place. The question, however, which is more abstract than practical, seems to belong rather to the domain of jurisprudence than to that of constitutional law, and it will not be discussed in the present work. Under its influence, before the Civil War, the disciples of the school of extreme State rights argued that because the several States were termed sovereign their powers were illimitable, and included the rights of nullification and secession. ilarly influenced since the restoration of peace, later writers have seemed to contend that there are now no limits to the powers of the United States, except the express prohibitions in the Constitution. Each of these dogmas is without support in precedent. There are certain powers which are the usual attributes of sovereignty and these are apportioned between the United States and

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federate point of view, is by Davis, Rise and Fall of the Confederate Government, vol. ii, pp. 718-763. Pherson's History of the Reconstruction is in no sense a history, but a very valuable compilation of the documents and important facts. The student should also consult the debates in Congress as well as the newspapers of the time, and the testimony taken before the Joint Committee on Reconstruction, as well as that taken before a number of subsequent committees of Congress. There are several valuable monographs; amongst them Allen's History of the Administration of Governor Chamberlain in South Carolina; and The Brooks-Baxter War in Arkansas, by John M. Darrell. Α full and impartial history of the period remains to be written.

§ 39. 1 Grotius, Jus Belli et Pacis,

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Liber I, c. 3, c. 7; Hobbes, Works, vol. ii, p. 69; Austin, Lectures on Jurisprudence, vol. i, p. 171; Holland, Jurisprudence, chap. iv, 2d ed., pp. 39–43.

2 Maine, Early History of Institutions, Lecture xiii.

3 The Subjection of the State to Law, American Law Review for 1886, p. 519.

4 See the Republic of Republics, by B. J. Sage; Stephens, Constitutional View of the War between the States; Calhoun's Works; Davis, Rise and Fall of the Confederate Government, vol. i, and other authorities cited in this chapter, supra.

5 See John C. Hurd, The Theory of our National Existence; and a pamphlet by the same author. Pomeroy, Constitutional Law; Tiedeman on Constitutional Law.

their component members. But the limits of each are prescribed by the Federal Constitution; and there are certain powers which that instrument withdraws from both. The ultimate right of sovereignty, which can remove all barriers to accomplish legally its wishes, if it exists at all in the United States, rests in the people of three-fourths of the several States acting through their legislatures or conventions with the previous consent of two-thirds. of both houses of Congress, who may amend the Federal Constitution. But even they are forbidden to deprive any State, without its consent, of its equal suffrage in the Senate.9

§ 40. Sovereign Powers of the United States in General. The powers of the United States are divided into two classes those exercised beyond their borders and those exercised within their territorial jurisdiction; and these again are subdivided into two, those within the Territories and the District of Columbia and those within the several States. In all external relations and transactions with foreign nations, the sovereignty of the United States is absolute except in so far as it is limited by the express language and implied restrictions of the Constitution. That instrument expressly grants to Congress the powers to regulate commerce with foreign nations, to regulate the value of foreign coin, to define and punish piracies and felonies committed on the high seas and offerises against the law of nations, to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water;1 to the President the power to receive ambassadors and other public ministers; 2 to the President and

6 McCulloch v. Maryland, 4 Wheaton, 316, 402-405; Cohen v. Virginia, 6 Wheaton, 264, 380-382; Tennessee v. Davis, 100 U. S., 257, 272; Pollock v. Farmers' Loan and Trust Co., 157 U. S., 429, 556.

7 Constitution, Article I, Sections 9 and 10.

8 Constitution, Article V; Calhoun, Works, vol. v, p. 36; Mr. Justice Bradley, in Hans v. Louisiana, 134 U. S., 1, 11; Chief Justice Fuller in Pollock v. Farmer's Loan and Trust

Co., 158 U. S. 601, 635; Maine, The Conception of Sovereignty and its Importance in International Law, Juridical Society Papers, 1855-1858, pp. 26, 44; Dicey, Law of the Constitution, pp. 137-140; Foster, The Subjection of the State to Law, Am. Law Review for 1886, p. 519.

9 Constitution, Article V.

§ 40. 1 Constitution, Article I, Section 8.

2 Constitution, Article II, Section 3.

Senate the power to appoint ambassadors, other public ministers and consuls; and to the President and two-thirds of the Senators present the power to make treaties.3 It expressly forbids the several States to enter into any treaty, alliance or confederation, to grant letters of marque and reprisal, and without the consent of Congress to lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing their inspection laws, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. It has been said that in their transactions with foreign nations and action without their own territorial limits the United States have all the powers usually exercised by sovereigns which the Constitution does not expressly withold. Except in so far as they are expressly inhibited by the Constitution, the United States have absolute and exclusive sovereignty over the District of Columbia 6 and the Territories. Their full jurisdiction over the Territories, although formerly denied,8 is now firmly established."

The extent of the jurisdiction of the United States within the States has been a question of more dispute and difficulty, but is now settled by repeated adjudications. The two governments, State and National, each exercise their functions side by side, with a far more extensive range of action in the former than in the latter; but when they do come into conflict the former has to yield. It is still true in substance, as said by Jefferson, that they constitute "co-ordinate departments of one single and integral whole;" the former having the power of legislation and administration in affairs which concern their own citizens alone, the latter over whatever concerns foreigners or citizens of other States. And the

3 Constitution, Article II, Section 2. 4 Constitution, Article I, Section 10. 5 See In re Neagle, 135 U. S., 1, 84, 85; Jones v. U. S., 137 U. S., 202, 212; Chae Chan Ting v. U. S., 130 U. S., 581, 605, 606; Fong Yue Ting v. U. S., 149 U. S., 698, 705, 706, 711, 712, 713, quoted infra; Ekiu v. U. S., 142 U. S., 651, 659.

6 Constitution, Article I, Section 8.

7 Constitution, Article IV, Section 3. 8 Dred Scott v. Sandford, 19 How. 393, 432-442. See infra.

Reynolds v. U. S., 98 U. S., 145; Murphy v. Ramsey, 114 U. S., 15; Cannon v. U. S., 116 U. S., 55; Davis v. Beason, 133 U. S., 333; Mormon Church v. U. S., 136 U. S., 1; s. c. 140 U. S., 665; s. c. as U. S. v. Mormon Church, 150 U. S., 145. See infra.

usual simile is that of the solar system, with a comparison of the United States to the sun and of the States to the planets, each moving in its respective orbit, a deviation from which by any, if unchecked, would bring destruction upon the whole.10

Within the sphere of the powers vested in them, the United States are supreme." Every State law or official action in conflict with an act passed in execution of a power of the United States is void.12 And there are no limits upon the action of the United States in the immediate execution of such a power 13 except the express inhibitions of the Federal Constitution and the implied condition that the United States can do nothing which prevents or materially hinders the discharge of those functions which are essential to the existence of one of their component States.14 Even a State police power which it has exercised as it deemed necessary for the protection of the health or morals of its citizens must yield when it conflicts with a power vested by the constitution in the United States.15

The United States are a government, and consequently a corporation capable of contracting to the extent of their powers of action 16 and of suing to enforce their rights 17 in the absence of

10 The earliest use of this simile known to the writer was by John Dickinson in the Federal Convention: "He compared the proposed national system to the solar system, in which the States were the planets and ought to be left to move freely in their proper orbits" (Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 168). 11 McCulloch v. Maryland, 4 Wheaton, 316; Logan v. U. S., 144 U. S., 263; In the matter of Quarles 158 U. S., 532; In the matter of Debs, 158 U. S., 564.

12 Constitution, Article VI; Tarble's Case, 13 Wall., 397, 407; Tennessee v. Davis, 100 U. S., 257, 263; Ex parte Siebold, 100 U. S., 371, 386; Gulf C. & S. Ry. Co. v. Hefley, 158 U. S., 98, 104.

18 McCulloch v. Maryland, 4 Wheaton, 316; In the matter of Debs, 158 U. S., 564.

14 Lane County v. Oregon, 7 Wall., 71; Day . The Collector, 11 Wall., 113; U. S. v. Railroad Company, 17 Wall., 322; Pollock v. Farmers' Loan and Trust Co., 157 U. S., 429; infra, § 41 and later.

15 Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S., 455, 464; New Orleans Gas Light Co. v. Louisiana Light and Heat Producing Co., 115 U. S., 650, 661; Leisy v. Hardin, 135 U. S., 100; Gulf C. & S. F. Ry. Co. v. Hefley, 158 U. S., 98, 104.

16 Constitution, Article I, Section 8, concluding clause; Chief Justice Marshall in U. S. v. Maurice, 2 Marshall, 96, 109; U. S. v. Tingey, 5 Peters, 115; U. S. v. Bradley, 10 Peters, 343.

17 In re Debs, 158 U. S., 564; U. S. v. Hughes, 11 How., 552; U. S. v. San Jacinto Tin Company, 125 U. S., 273, 279.

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