eral matters, affecting foreign affairs or territory held in common, the United States is a nation.

To deny this proposition is to assert that the United States is not a completely sovereign power, and therefore is not entitled to rank as one of the great and sovereign powers of the world; this indeed would be a mortifying position for a country with over seventy-five million inhabitants and a territorial area of over three million square miles.1

§ 13. States' Rights School and Broad Constructionists. -Notwithstanding the absolute necessity of clothing the Central Government with the fullest powers of sovereignty in this respect, advocates of the States' Rights School have persisted and to some extent, although not so much as formerly, still persist in maintaining the doctrine that no such complete condition of nationality and sovereignty either ex

The converse of the Attorney General's proposition will be found in the briefs filed by the opposing counsel. See also views of ex-President Harrison on meaning of terms "United States" and "Sovereignty," in North American Review, January, 1901, referred to in § 37, p. 63, post. Since this portion of this volume was completed the Supreme Court has decided several cases involving the status of some of the recently acquired possessions of the United States, notably Porto Rico and Hawaii. Those opinions are referred to at length under §§ 61a-61h, pp. 117, et seq., and other sections there referred to. The status of territories and the extent of congressional power thereover are discussed at length in those opinions. See De Lima vs. Bidwell, Downes vs. Bidwell, and other Insular Cases decided May 27, 1901, and reported in volume 182, United States Reports, and abstracts of which are in appendix at end of this volume.

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1 Cohens vs. Virginia, U. S. Sup. Ct. 1821, 6 Wheaton, 264, MARSHALL, Ch. J., and see extract from opinion, section 29, post.

American Insurance Co. vs. Canter, U. S. Sup. Ct. 1828, 1 Peters, 511, MARSHALL, Ch. J.

Juilliard vs. Greenman (LegalTender case), 1884, 110 U. S. 421, GRAY, J.

In re Lau Ow Bew, U. S. Sup. Ct, 1891, 141 U. S. 583, FULLER, Ch. J. Law Ow Bew vs. United States, U. S. Sup. Ct. 1892, 144 U. S. 47, FUL

LER, Ch. J., and see extract under note to sec. 379, Vol. II, pp. 98 et seq.

Fong Yue Ting vs. United States, U. S. Sup. Ct. 1893, 149 U. S. 698, GRAY, J.

Lem Moon Sing vs. United States, U. S. Sup. Ct. 1895, 158 U. S. 538, HARLAN, J., and see extract under sec. 379, Vol. II, p. 107.

See also the numerous cases cited in the opinions of the court in the above cases; also the cases collated in §§ 23, et seq., post; and the Insular Cases under § 61, pp. 117, et seq.

ists, or, under our form of government can exist, and that even as to the treaty-making power the Central Government is limited in scope, both as to the subject-matter which can be affected by treaties, and the method in which those subjects which are admittedly within its proper scope can be handled. Ever since the adoption of the Constitution there have been two parties as to its construction and the extent and nature of the powers of the Central Government; one of these parties has favored broad construction and wide powers, while the other has insisted upon narrow construction and limited powers.1

14. Eras of Constitutional History of the United States. There are two distinct periods or eras in the con

Government created by this com- "2. Resolved, That, in delegating pact was not made the exclusive a portion of their powers to be exor final judge of the extent of the ercised by the Federal Governpowers delegated to itself; since ment, the states retained, severthat would have made its discretion, ally, the exclusive and sole right and not the constitution, the meas- over their own domestic instituure of its powers; but that, as in tions and police, to the full extent to all other cases of compacts among which those powers were not thus powers having no common judge, delegated, and are alone responeach party has an equal right to sible for them; and that any interjudge for itself as well of infrac- meddling of any one or more states, tions as of the mode and measure or a combination of their citizens, of redress." with the domestic institutions and The Virginia and Kentucky res-police of the others, on any ground, olutions were reiterated in 1838 in political, moral or religious, or una series of resolutions introduced der any pretext whatever, with the by John C. Calhoun in the Senate | view to their alteration or subverand adopted, some of which are sion, is not warranted by the Conquoted at length as they are a good stitution, tending to endanger the expression of the ultra views of the domestic peace and tranquillity of States' Rights School before the the states interfered with, subverCivil War. They refer particularly sive of the objects for which the to slavery, which was natural in Constitution was formed, and, by view of the necessity of maintain- necessary consequence, tending to ing that institution. weaken and destroy the Union itself.

The resolutions were as follows: On the 12th of January, 1838, Mr. Calhoun embodied the Southern position in certain resolutions which he introduced in the Senate of the United States. The first three of these resolutions were as follows:

"1. Resolved, That, in the adoption of the Federal Constitution, the states adopting the same acted, severally, as free, independent and sovereign states; and that each for itself, by its own voluntary assent, entered the Union with the view to its increased security against all dangers, domestic, as well as foreign, and the more perfect and secure enjoyment of its advantages -natural, political, and social.

30

"3. Resolved, That this government was instituted and adopted by the several states of this Union as a common agent, in order to carry into effect the powers which they had delegated by the Constitution for their mutual security and prosperity, and that, in fulfilment of this high and sacred trust, this government is bound so to exercise its powers as not to interfere with the stability and security of the domestic institutions of the states that compose the Union; and that it is the solemn duty of the government to resist, to the extent of its constitutional power, all attempts by one portion of the Union to use it as an instrument

stitutional history of the United States; the ante-bellum period from 1789 to 1861, and the post-bellum period from 1861 to the present time. The dividing line between these two eras is the Civil War; the removal of the two great elements of slavery and the right of secession from constitutional discussion, and the non-existence of those two causes of difference has naturally resulted in a material modification of the views of many who had adopted the most extreme position in order to sustain those two principles which are now fortunately only elements of constitutional history and not of present construction.1

§ 15. Marshall, Story and Gray; Calhoun, Taney and Tucker. During both of these periods there have been many

to attack the domestic institutions | ica, from the Atlantic to the Paof another, or to weaken or destroy such institutions."

cific, from the Canadian lakes to the Mexican border, appear destined to remain for an indefinite time under the same political institutions; and there is no evidence that these will not continue to belong to the popular type. Of these institutions, the most important part is defined by the Federal Constitution. The relative importance, indeed, of the Government of the United States, and of the State Governments, did not always appear to be as clearly settled as it appears at the present moment. There was a time at which the au

These extracts are sufficient to show the basic doctrine of the States' Rights School which has also been expressed by John Ran-thority of the several States might dolph Tucker, whose opinion is quoted at length in the text of section 16. Fortunately these views have been confined to a part of the people of a part of the States, and the broader views of those who believe that the United States is a Nation will undoubtedly prevail, with the result that the United States will always remain, as it has been, a Nation possessed of national and sovereign powers. § 14.

1"The United States of Amer

be thought to be gaining at the expense of the authority of the United States; but the War of Secession reversed this tendency, and the Federation is slowly but decidedly gaining at the cost of the States. Thus, the life and fortunes of the most multitudinous and homogeneous population in the world will, on the whole and in the main, be shaped by the Constitution of the United States." Popular Government, Sir Henry Maine, p. 197.

advocates of extremely limited, and of extremely unlimited, powers in the Central Government. John C. Calhoun and Chief Justice Taney can fairly be taken as exponents of the States' Rights School of the ante-bellum period, while John Randolph Tucker occupies the same position in the post-bellum period; Chief Justice Marshall and Justice Story, before the war, and Justices Field, Miller and Gray, since the war, are the leading spirits of the broad constructionists during their respective periods of service on the bench of the Supreme Court of the United States. Many other able publicists, jurists and judges have arrayed themselves on one side or the other of these great questions during both periods of our constitutional history; those who have been named, however, have expressed the views of the schools to which they have respectively belonged so thoroughly and completely, that most of the opinions and decisions which will be referred to in the subsequent pages will be taken from their writings and opinions.

§ 16. John Randolph Tucker's views.-John Randolph Tucker of Virginia comes of a family which has produced a long line of strict constructionists and of eminent statesmen of the States' Rights School; his recently published book edited after his death by his talented son, Henry St. George Tucker, is the latest exposition of the theories of that faction; it is largely an answer, or more properly speaking, an attempted answer to the exposition of the broader principles of nationality and sovereignty contained in Mr. Justice Story's Commentaries on the Constitution.1 Mr. Tucker, in acknowledging the existence of the two opposite schools of construction of the Constitution, says:

"On the nature of the Constitution of the United States and the relations of the States to the Union, there are two leading schools of thought:

"First. That the unit of sovereignty is the State, which is

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1 On the other hand Justice Story, in his Commentaries, had directly refuted many of the statements contained and arguments made in Tucker's Blackstone, the work of

John Randolph Tucker's grandfather, St. George Tucker; the recently published book of John Randolph Tucker might be considered as a brief in reply to Judge Story, if not as a brief reply.