CHAPTER II.

THE STATE AND FEDERAL GOVERNMENTS.

THEIR UNITY-THE STATE EXCLUSIVE JUDGE OF PROHIBITED POWERS-THE UNION NOT A CIVIL POLITY-NOT A DEMOCRACY-PERSONS AND MAJORITIES-HOW REGARDED THE SLAVERY QUESTION-ITS ALLEGED INCOMPATIBILITY WITH FREE INSTITUTIONS-THE LAW OF ITS EXISTENCE AND ITS EXTIRPATION.

Now, let us consider that the States of the Union, in respect to all ordinary matters of government, are just what they have ever been since the first organization of civil institutions in this country. For example, the State of New York is just what she was a century ago, an independent State, having an executive, legislative, and judicial department. Scarcely an acre of its territory, or a noticeable fraction of its political rights, or an iota of its liberty, as a free State, has ever been surrendered. The control of its foreign relations, the coining of money, postal matters and a few other specific interests, of a general nature, were transferred, not to an independent power, but to a power of its own creation and government.

In making this transfer, it is hardly possible that New York intended in any sense, to make herself a subject State, not even in reference to those things over which she declared the authority of the United States supreme. The supremacy here accorded is strictly legal in its nature, partaking far more of exclusive jurisdiction over the subjects than of dominion.

The general and the State law, so far as the people of the State are concerned, are identical-they are both, to all practical intents and purposes, the laws of the State. The Government of the State draws to it and makes part of it, all laws of the Union, made in obedience to the Federal Constitution.

This expresses the true unity of the system. It does not admit the existence of two governments. It is all one system. By so

treating it, it is possible to maintain the rights and dignities of the States on the one hand, and the integrity of the confederation on the other.

It is nothing to the American people how persons abroad shall see them. Whether the General Government is regarded as the embodiment of power and the aggregation of legal authority or not, is of no consequence. We are viewing the structure of our institutions, not a picture exhibiting their lights and shadows from a distant standpoint. They are extremely complicated, and, as we have found, most difficult of enforcement. The latter is due to the practical recognition, by the States, of two distinct, and in many respects, antagonistic polities.

It may seem anomalous, and extra-speculative, to maintain, in the face of what has been written, said, and done by the people, that, instead of two systems, we have, in reality, but one. Nevertheless, if we regard the true structure of the States, and the objects they sought to accomplish in ordaining the Union, it seems impossible to come to any other conclusion. As we have departed from this vital doctrine of union, by recognizing the independent power and authority of the General Government, making it not only supreme over delegated interests, but building it up as a colossal foreign state, in many respects, so have the signs of discord and civil commotion multiplied upon us.

It is folly, and something worse, to suppose that two schemes of independent government can be maintained. We must have unity in fact as well as name. It is not in the power of human wisdom and integrity to maintain independent government in the States, and the independent government of the Union, unless it be on the basis that the latter is purely the government of the States, having no separate mission whatever.

Accountability, except as to those matters which have been delegated to the Union, must ever be to the States. They remain in the confederation as its only sustaining power. They fill, from their citizens, all its offices, executive, legislative, and judicial. It is their duty to see that its laws are faithfully executed, because it is their government for specific national purposes--what Mr. Hamilton called their political, in con tradistinction to their civil or

State Governments. It is their duty to see that its powers shall be executed just as they were delegated; because that was their agreement. Just as they were delegated! It is as much a violation of the compact to exercise the least Federal authority not delegated, as to refuse to carry into effect the delegated powers. To refuse to send Senators and Members of Congress to the Federal capital, to neglect to appoint a Federal judiciary, would be a violation of the Constitution, but no more so, than for the Senators and Members of Congress and judiciary to assume to exercise unwarranted authority. Concerning all delegated powers, the judiciary is made the exclusive judge. That is the agreement. But in respect to the prohibited powers, the States have retained the right of exclusive judgment. From the character of the compact, the parties to it, and the ends sought to be accomplished, we hold this law of construction to be equally necessary and reasonable. It is necessary, because the parties to the compact remain in the Union, as sovereign, independent States. These attributes make it clear that they ought to retain the exclusive right to judge of all matters affecting their systems of local government, which they did not expressly delegate. This right cannot be relinquished without placing it in the power of the Union to sweep away all State institutions and laws. Self-preservation demands that they shall retain it. It is the vital clement of local freedom and independence.

The best reasons of State policy also demand it. It is just as necessary that the Union should be kept within the strict letter and spirit of its organic law as that the States should preserve their freedom and independence. We need not be told that the extinguishment of either of these elements of State government would result only in their transfer to the Union, and not in their destruction. That, we know, is the theory of many persons intrusted with the discharge of Federal duties. But it is not the theory of the Union. It is dominion, which such men want, not a free system. of laws-it is individual, discretionary government, and not the ancient free institutions of this country, without which, in all their integrity, it will be found impossible, for many years, to rescue the people from anarchy and bloodshed.

This rule of construction will be found, too, on examination, to be entirely consistent with the provisions of the Constitution.

It is hardly necessary to say that that compact delegates certain powers to the United States; declares that none other shall be exercised; and that the powers not delegated nor prohibited to the States, shall be retained by them respectively or the people. After enumerating all the delegated powers, and prescribing, in many cases, in what manner, where and how, they shall be executed, a schedule of prohibitions is added. It is declared, for instance, that "the freedom of speech and of the press shall not be abridged."

This is the declaration of the States to the General Government, a declaration which constitutes no part of that government, conferring no power upon it, intended, not only to limit its authority over persons and property, in respect to free speech and a free press, but to affirm the exclusive jurisdiction over both by the States. It is manifest, then, that the Federal judiciary and all Federal officers, of whatever character, are utterly prohibited from the least control over these rights of the people: first, because they are natural, or what the Constitution denominates reserved rights; and secondly, because the governments of the States never delegated to the Union the least control over them.

A reference to the delegated powers will render this conclusion still more satisfactory.

The Federal system embraces exclusive authority over the revenues, postal accommodation, the coinage of money, weights and measures, and a few other interests of a general nature. These are Federal matters, not because they differ essentially from others reserved to the people, but because their management was turned over to the Union. They are the subjects of its jurisdiction. It would be folly to question the authority of the United States over any of the delegated powers; but a much greater folly to concede the least authority over subjects not delegated, and worse still over matters specifically reserved or prohibited.

These reservations and prohibitions mean nothing, if they do not assert the exclusive jurisdiction of the State over all the subject matters embraced in them. The States must take care of their citizens, when their liberty and rights are taken away. The policy

of the law demands, in all cases, that it shall never be placed in the hands of individuals to maintain their rights, however plain. Resort must be had to the tribunals of justice. It is the State's business to execute justice. It is, then, where a citizen has been deprived of either liberty or property, by persons without authority, or by Federal officials, without authority, far more an offence against the State than the injured person. The latter is powerless, while the former is an independent member of the confederation, and as such is bound by all the dignities and obligations of nationality to vindicate the rights of its citizens, especially against every Federal aggression. We say especially against Federal aggression, because aggression from that quarter is first to be resisted, as a double means of preserving the Union on the one hand, and the independent authority of the States on the other.

The real character of the Union, as a limited state, must not be overlooked. It was no part of the design of the States, in creating it, to establish a civil polity. Their civil institutions were already complete; and they were based on the clearest written guarantees of freedom, and sustained by a public sentiment which had never recognized, in government, any other principle. Just relieved of an oppressive war, and threatened by the antagonistic polities of Europe, they saw the necessity of coöperation in respect to certain matters of government. It was believed by quite all the leading statesmen of the day, that one foreign intercourse, commerce, and navigation, one currency, one postal accommodation, and a few other matters of a general nature, would add strength to the parts and greatly advance their material interests. The Union was ordained on precisely this basis.

It took the form of an independent government, and was clothed with the powers of such a government touching the interests to which we have referred, but in nothing else. To a political system, embracing original authority over the people, with powers of legisla tion, a judiciary, and an executive, it bears little resemblance. It has but few of the attributes of such a polity. There was no occasion to put in force any such scheme. All that was required of that kind of government, already existed in perfection, as is abundantly shown in the fact that the States which ordained the Union,