tion of the legislature, but has found its sources and authors in the independent judiciary. The judgments of the United States courts, expounding a statute, construing the Constitution, or adding a new rule to the vast body of judicial legislation within their especial jurisdiction, are as much laws of the United States as the formal acts which have been passed by Congress and have received the assent of the President. The character of supremacy belongs to all these; the language of the Constitution is general, and includes every form and species of legislation which can exert a binding force upon the citizen. This is a truth which most writers have either entirely overlooked, or have failed to consider with the care that its importance demands.

§ 100. Interpretation of the Tenth Article of the Amendments. The force of the constitutional provision which we are considering (Art. VI. § 2), is not at all weakened by the tenth article of the Amendments, when the latter is correctly read and understood. This amendment is in the following words: "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." That a true construction may be put upon this amendment, it should be read in connection with the one which immediately precedes it, and which was adopted at the same time, as follows: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.'

§ 101. The tenth article just quoted is often assumed to be a clear recognition of the former sovereignty of the separate states; but nothing can be more unfounded and fallacious than this claim. Those who insist upon this meaning must alter

1 See Pomeroy's Introduction to Municipal Law, Part I. chap. iii., where this subject of judicial legislation is considered at large.

See also Austin's Province of Jurisprudence, Vol. 2, Lects. XXXVII. and XXXVIII., in which the character of judicial decision as law is demonstrated, its peculiarities explained, and its merits and demerits, as compared with statute law, are set forth. The theory of Blackstone, that courts only declare what has always been law, and do not create, is conclusively shown to be not only false, but absurd.

2 Ninth Art. of the Amendments.

the language, and read it as though the reservation of powers were made by the states and not to them. The clause should be compared with the second of the Articles of Confederation, which reads: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not expressly delegated," &c. The change of prepositions in the tenth amendment would apparently be a slight one, but it would be mighty in import and results. Powers are said to be reserved; and it is plain enough to whom the reservation is made, to the states and to the people. This provision, however, does not tell us by whom the reservation is made; that fact must be gathered from the history of the nation, from the whole tenor of the Constitution, from its entire scope and design, and from its preamble. The body which conferred portions of its powers upon the government which it had created, is alone capable of reserving the residuum to itself, or to any other body. This single political society which confers and which reserves is the people of the United States, the nation itself. By reading the two amendments together, this meaning is made plain. The ninth arti-) cle speaks of rights retained by the people; the tenth, of powers reserved to the states. The former recognizes the people as the one source of all power, as they could not retain what they were not before possessed of; the latter speaks of some powers which had not been conferred by the people on its general government, as allotted to the states. The former points out the giver; the latter, the recipients.

I remark, in passing, that the term "United States," in the tenth amendment, plainly describes the government established by the Constitution, and not the political society which lies back of that organic law, and which was its author. The same term is often applied to both these subjects, although the Constitution generally uses the word "people" to designate the latter.

§ 102. II. The Status of Citizenship. The Constitution recognizes our nationality by assuming that the status of citi zenship, and the consequent duty of allegiance, exist independently of that instrument. In this, the present organic law is in

Were our

bold contrast with the Articles of Confederation.
government a mere federation of equal, sovereign states,
united for certain purposes of administration, there could be
no real nation and no citizenship. The status of the citizen
had been clearly defined, and the word had attained a definite
meaning, long before our fathers employed it in the Constitu-
tion. It implies a political society, a nation, of which the
individual is a member, to which he owes allegiance, and
which is bound to give him protection. Now, it is to be
observed that, while the Constitution nowhere in terms defines
the status of citizenship, or declares what persons shall be ad-
mitted thereto, it does assume its existence, and provide for all
the consequences that flow from the relation; the general gov-
ernment has exclusive power to admit persons of foreign birth
to that condition; while the article in relation to treason 1
recognizes the duty of allegiance, for the essence of the crime
of treason is the violation of allegiance. The word "alle-
giance" is fruitful in meaning. Etymologically it is the bind-
ing of the citizen by a chain of duty to the body-politic of
which he is a member. It therefore implies a nation and his
own membership thereof. Senator Mason, of Virginia, and
other partisans of state sovereignty, were strictly logical in
asserting that they owed allegiance only to their own com-
monwealth, and not to the United States.

§ 103. III. The Proprietorship of Public Lands. — The
Constitution recognizes our nationality in providing for the
ownership by the United States of all new, unappropriated
public lands within the borders of the states and territories.2
The King of Great Britain is said to be the ultimate owner of
the soil, and is the proprietor of all the domain not allotted to
private holders. The United States succeed to his title. Dur-
ing the Confederation, while the idea of nationality was ob-
scured, the states separately ceded to the general government
whatever title had been claimed by either of them to all un-
appropriated Western lands, and only retained the proprietor-
ship of that within their immediate territorial limits. This
title has been continued, and has been extended over all sub-
1 Art. III. Sec. III.
2 Art. IV. Sec. III. § 2.

sequent acquisitions by purchase or conquest. Nor does the ownership pass from the United States, and vest in a particular state, when the latter becomes organized as a separate commonwealth, throws off its territorial character, and is admitted as a state into the Union; but the nation retains its property, and from it must all private purchasers derive their rights. This original and paramount dominion in the newly acquired soil which may be added to the territory of the country, is a high attribute of sovereignty, and indicates that the United States is an independent body-politic, and not a mere agent to carry on certain governmental acts.

§ 104. IV. The Legislative Powers. The Constitution recognizes our nationality in the essential character of the legislative powers that are conferred upon Congress. It will be remembered that it is not the number, but the extent, of these powers which stamp them as national. The people have all powers; they may retain some dormant; they may delegate others to the general government; they may permit others to be exercised by the separate states. Now, it is evident that those which they have entrusted to their immediate agent the general government, which represents the whole. nation are of a far higher class, more imbued with the essential attributes of sovereignty, than those which they have permitted to be exercised by the state governments, which represent local and partial communities. What are some of the more important of these powers which the Congress may wield and enforce against the individuals who compose the total aggregate?

§ 105. Those which are held exclusively by the United States, or, in other words, which are denied to the separate states, are the following: The regulation of commerce; the admission to citizenship by naturalization; the coining of money; the establishment of post-offices; the granting of patent and copy rights; the declaring of war; the raising and support of armies and navies, and the government of the same. In addition, the Congress has unlimited power to lay taxes of all kinds, some to the exclusion of the states, as duties on imports; others in connection with the states; with the further

prerogative that the taxing power of the general government is superior and paramount, and must first be satisfied before the local commonwealths can put into operation their subordi nate function of taxation, Finally, the general government is to be the sole judge of what particular measures are fit, proper, and necessary in order to carry these general grants of power into practical execution. I have not here enumerated all of the legislative functions of the United States Congress, but only noticed those most important for the purposes of the present inquiry.

§ 106. The mere recital of these tells its own story. Can that political society possess any attribute of sovereignty, which is forbidden to wage offensive or defensive war, and thus to maintain its own existence; and which is unable to raise and support an army or navy; and which is deprived of the right to coin money; and which possesses no control over commerce; and which must exercise its power of taxation in subordination to another body-politic? To predicate sovereignty of commonwealths debarred from these functions, is to ignore the meaning of terms and the nature of attributes.

$107. V. The Executive Powers. The Constitution recognizes our nationality in the essential nature of the powers conferred upon the Executive. He is the commander-in-chief of the forces of the United States, and, as such, has the entire, exclusive control and direction of war, after hostilities have been declared and armies and navies raised by Congress. He, with the advice and consent of the Senate, must enter into all treaties with foreign countries, and appoint all important officers in the general service. He holds intercourse with other nations through means of ambassadors. Finally, he is charged with the duty of executing all laws of the United States. These are attributes of independent sovereignty, capable of being conferred on an official only by the political society in which that sovereignty resides.

$108. VI. The Judicial Powers. The Constitution recognizes our nationality in the essential character of the powers conferred upon its judiciary. Many of these are exclusively held by the courts of the nation, and are commensurate with