out the jurisdiction of any State the National Government was created by the original joinder of the colonies, at a time when unity of action was recognized as a prerequisite for independence, and the existence of its nationality dates from a period prior to the adoption of the Articles of Confederation. That National Government, the existence of which continued under those articles, and still continues under the Constitution, is necessarily not one of exclusively delegated powers; it undoubtedly possesses certain delegated powers, the source of which can be found in, and must necessarily be limited by, those great instruments which have, and always will, form such an important part of our organic law; it also, however, originally possessed, as it still must possess, complete nationality and sovereignty in many other respects in the same manner as they are possessed and can be exercised by other sovereign powers of the world. It necessarily follows that this proposition relates with even greater force to the treaty-making power, and to the establishment and conduct of relations between this country and every part thereof with foreign countries than it does to almost any other existing governmental powers, because in no other respect is it so generally admitted, that the government of the United States is national in its character and scope.

The Constitution recognizes the distinction between the Federal and National sources of power; this is evidenced by the Tenth Amendment, which declares that the reservation. of undelegated powers is "to the States, and to the people." The people in this respect are referred to, not only as inhabitants or citizens of the States, but also as the people of the entire country as a National unit.

§ 21. Residuum of Power. This residuum of delegated power contains in itself a complete exposition of the sovereignty of the Central Government in national affairs.

It will be again referred to in the final chapter of this volume, but it requires a brief reference at this point also. As to matters affecting States in their individual capacities, all delegated power, except so far as it was reserved in the people themselves, vests in the State in the absence of specific delegation to the Central Government; as the power of the Central Government diminishes that of the State increases,

and vice versa; but full and complete sovereignty so far as the people have parted with it exists between the two governments, and there is never any loss of the whole amount of power so delegated. When, however, no State can possibly exert control over a matter, or exercise any jurisdiction owing to the nature of the subject-matter or to constitutional limitations, the entire power delegated must necessarily remain in, and be exercised solely by, the Central Government; hence it can, as it often has done, and often must do, exercise plenary power in regard to those matters, and in so doing it has been held that its power is unrestrained, except so far as it must be exercised in consonance with the fundamental principles which are intended as general securities for public liberty, and subject only to those natural limitations which are imposed upon all sovereign powers, no matter how absolute they may be, of equity, justice and truth.1

$ 22. Powers reserved to States relate to internal affairs. It must also be remembered that the limitations upon the Central Government are those which reserve to the States the control of matters relating to their internal affairs; there are no express or implied limitations upon those matters which are within the purview of the national government. In fact while the treaty-making and some other powers are delegated to the Central Government in general terms, and without any specified limitations whatever, the Constitution expressly provides that "no State shall enter into any treaty, alliance or confederation;

or, without the consent of Congress, enter into any agreement or compact with another State or with a foreign power,"1 thus not only placing the power generally in the Central Government, but absolutely prohibiting any State from acquiring any additional territory, or performing any functions of sovereignty beyond its own boundaries, except through the medium of the Central Government; unless that government therefore is completely vested with the fullest powers in these respects, some portion of delegated sovereignty would neces§ 21.

1 See cases cited under §§ 36-40, post.

§ 22.

1 U. S. Const. Art. I, § 10.

sarily be lost, because no part of it would, for it could not, under the prohibitory clauses revert to the States individually or collectively; under such circumstances this country would have to stand before the world in the mortifying position of not having any government, State or National, able to perform the most necessary and far-reaching of all governmental functions; the one which all other, and fully sovereign, powers are constantly performing, and in the absence of which, foreign relations could not be maintained with any dignity or satisfactory results whatever, either for the Central Government or for the States themselves."

§ 23. Proposition supported by eminent jurists.—This broad proposition may sound paradoxical, especially when it is accompanied by the statement that we are a constitutionally governed country; it is founded, however, upon opinions and decisions expressed by the ablest jurists and authorities upon constitutional law and construction which this country has ever produced, and who have been able to extend their vision beyond the bounds of a mere league of confederated semi-sovereignties, or states banded together for the selfish protection of individual interests, to the more expansive view of a great nation, exercising through a Central Government national functions, not only for internal protection and development, but far beyond the original limits, for the benefit of mankind and civilization.

Those who have recently had the temerity to affirm, for example, as a legal proposition, that our government has in any way exceeded, or is exceeding, its powers either in acquiring or in governing, our new possessions, would do well to examine the opinions and decisions of the Supreme Court, as they have been declared by Chief Justice Marshall and Justices Story, Curtis, Field, Bradley, Harlan and Gray1 and other former and present members of that great tribunal, as well as the utterances of such statesmen as Caleb Cushing, Daniel Webster, Charles Sumner, William H. Seward and others noted no less for their prudence and conservatism than for their legal ability and political acumen; after weighing the expressed opinions of those eminent jurists and masters of political science, they may materially modify their own opinions; their doubts may be dispelled, and they may recognize that there has been no excess of power exerted in the recent actions of the Government, so far as treaty-making is concerned; in every instance of territorial acquisition and the subsequent government of the acquired territory, the National Government has exercised powers which are only compati

Opinions of Attorneys General, vol. VIII, 411, p. 415. § 23.

1 For references to utterances of these jurists consult index at end of volume.

2 For decisions of the court and the questions involved in the suits pending before the Supreme Court see §§ 61a-61h, post; see also § 101, chapter III, post.

ble with the inherent possession of complete sovereignty, and wholly incompatible with the delegated possession of incomplete sovereignty, and the Supreme Court has uniformly sustained the action of the Government whenever it has been based upon treaty stipulations, not only as to the treaty itself, but also as to the legislation subsequently enacted in pursuance thereof.

§ 24. National Unity expressed in preamble of Constitution. This idea of national unity is also expressed in the preamble of the Constitution, which enumerates amongst the actuating motives for its adoption, provision for the common defence, promotion of the general welfare and security of the blessings of liberty for the people of the United States, referring unquestionably to the people at large in their National capacity. It must also be remembered that one of the greatest discussions in the Federal Convention was on the question whether the Constitution should be submitted for ratification to the various State legislatures, or to the people themselves, and that the latter course was adopted after an able dissertation upon the subject by Mr. Madison, the details of which are referred to at greater length in the subsequent chapter of this volume which is devoted to the proceedings of the Constitutional Convention of 1787.1

§ 25. Ratification of Amendments by States result of delegation by People. The reason why amendments to the Constitution can now be ratified by the legislative bodies of the States, and not necessarily by the people either directly, or through conventions specially called for the purpose, is not because the States, as such, inherently possess any power or sovereignty to amend the Constitution of the Union, but because the people themselves, by a provision in the Constitution, clothed the state legislatures with the power of ratifying amendments whenever they were proposed by a two thirds vote of both houses of Congress, provided the legislatures of three fourths of the States accepted them; the people thus constitute the legislatures of the several States their agents, subject to the prescribed limitations for the purpose of ratifying such Amendments.1

§ 24.

1 See § 195 chapter VI post.

§ 25.

1" The Congress, whenever two