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THE TERM

NATION.”

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Government of the American people, but there is reason to believe that one of the first uses of the word in this sense was made by President Lincoln in his Gettysburg address, in which he spoke of the Government of the People, as that of "a new Nation conceived in liberty and dedicated to the proposition that all men are created equal."1 Certain it is that after the Gettysburg oration, the word nation was freely used by the people in the sense in which it is now understood; and this larger meaning was given to it in the debates in Congress, in reports of committees and in decisions of the Supreme Court. Not infrequently the words nation and national were spelled with an initial capital, and during the campaign of 1876 there arose a common saying, that we had become a nation with a big N. Meanwhile the terms confederacy and confederation dropped out of use except as referring to the League of 1781 or to that of the insurrectionary States of 1861. Our literature quickly responded to the change in popular speech, and was enriched by several works of wide influence, among which the most famed in its day bore the title “The Nation," under which term was to be found the civil organism and the basis of political life in the United States.2 Thus the old word which means originally a new birth was given a new meaning, but truly its old meaning was restored and was given the most important place in our political vocabulary. It signified that the American people grasped the character, scope and functions of their Government and understood them in a broader and more

1 November 19, 1863. For the earlier use of the term by Senator Wade, see pp. 612-615 of Vol. II.; and the word was frequently used by some of the later Whig leaders, notably Henry Wilson of Massachusetts and William H. Seward, during the campaigns of 1844, 1848 and 1852.

2 The Nation, Elisha Mulford, 1881,

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FEDERAL RELATIONS.

philosophical sense than before. The change was one of the most important results of the war.

Henceforth the Constitution was to be interpreted in conformity to the national character of the Government. In this test the southern Confederacy of 1861 was an unlawful assembly, without power to take, hold or convey a valid title to any kind of property. The courts which this Confederacy organized were a nullity and exercised no rightful jurisdiction. And the debts or obligations which it incurred were illegal and void. Thus, after the war, political opinion confirmed the decision of ChiefJustice Marshall, given forty years before the war, that the United States formed a single Nation. The question of the right of secession was at last settled.

We have seen how, soon after the inauguration of the National Government, a struggle began involving its federal relations, and that all through the years preceding the war, these were the subject of endless and acrimonious controversy.5 State sovereignty and national sovereignty seemed to be the poles of our political existence; and to the practical questions involved there seemed no answer. The Civil War made clearer than before the relations of the National Government to the States and enabled the people better to understand the meaning of such terms as State, Commonwealth and Union. For the first time the term State as used in the Constitution was authoritatively defined as a political community of free persons occupying a territory of defined boundaries organized under a government sanctioned and limited by a written Consti

1 Sprott vs. United States, 8 Court of Claims, 499; 20 Wallace, 469.

2 Hickman vs. Jones, 9 Wallace, 197.
3 Constitution, Article XIV, Section 4.
4 Cohens vs. Virginia, 6 Wheaton, 264 (1821).
5 See Chaps. III and IV. See In re Neagle, 135 U. S. 84.

STATE SOVEREIGNTY.

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tution, and established by the consent of the governed." Until 1865, the Union of the States had been generally considered as more or less a purely artificial and arbitrary relation established among them. This idea was now abandoned and the Union was understood to express an organic relation growing out of the common origin, the mutual sympathies, the kindred principles and the similar interests of the American people; and from the nature of this origin the Union was now considered to be indissoluble. The preservation of the States and the maintenance of their governments were now recognized to be as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. “The Constitution in all its provisions,” said Chief-Justice Chase, in 1868, "looks to an indissoluble Union composed of indestructible States.”

The old thorn of State sovereignty was withdrawn and the functions of the National Government and of the State governments were better understood. For the first time the broad significance of Marshall's opinion uttered earlier in our history, was comprehended by the people, that the National and State Governments are each sovereign with respect to the objects committed to it, but not sovereign with respect to the objects committed to the other. 3 The darkness which had so long enshrouded the idea of State sovereignty cleared away disclosing the true sovereignty of the State, which resides not in the persons who fill the different departments of its government, but in the people from whom the government emanates and who may change it at their will. Few lessons of the Civil War were

1 Texas vs. White, 7 Wallace, 700 (1868).
2 Ib.; Chancely vs. Barley, 37 Georgia, 532.

McCullough vs. Maryland, 4 Wheaton, 316 (1819); United States vs. Cruikshank, 92 United States, 542.

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more valuable than its demonstration that sovereignty abides with the constituency and not with the agent; that it exists with the people of a State and not in a State as a political corporation. To the term State this organic and human idea of sovereignty gave a new meaning. It made clear that a State in becoming a member of the Union enters into an indissoluble relation and becomes an organic part of the Nation. Consequently no States can secede from the Union,” and ordinances of secession are absolutely null. Because of this relation secession or rebellion cannot alter the constitutional duties and obligations of a State or in any way change the allegiance which its people owe to the National Government; nor can a State release its citizens from that allegiance. “Since the State itself is a fractional part of a magnificent whole and in its collective capacity is only the aggregation of its individual citizens all of whom are alike incapable of effecting their own release, whether taken individually or collectively." Because of the intimate and organic relation between the National Government and the States and because of the supremacy of the Nation, Congress has plenary and paramount jurisdiction over all matters with which it is entrusted by the Constitution, and in the enforcement of its acts it may utilize State laws and State officials.5

To avoid jealousies and conflicts of jurisdiction the

4

1 Spooner vs. McConnell, 3 McLean, 337.

2 White vs. Hart, 13 Wallace, 646; Sequestration Acts, 30 Texas, 688.

3 Hawkins vs. Filkins, 24 Arkansas, 286; Harlan vs. State, 41 Mississippi, 556.

4 Hood vs. Maxwell, 1 West Virginia, 219.

5 Ex parte Siebold, 100 United States, 371 (1879); Serè vs. Pitot, 6 Crouch, 336; Murphy vs. Ramsey, 114 U. S., 41; U. S. vs. Gratiot et al., 14 Peters, 524, 537.

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operations of the State and National Governments are conducted separately as far as possible, but at the basis of jurisdiction lies the principle that the supreme allegiance of every citizen is due to the National Government. This principle was not recognized in the State constitutions until after the war. While as to the question of power there could be no doubt of the truth of the principle, there might be a question of expediency, and this could be settled from time to time as Congress in its wisdom might determine. The war set the concurrent jurisdictions of the State and National Governments in tolerably clear perspective. Without concurrent sovereignty “the National Government would be nothing but an advisory government, and its executive power absolutely nullified. Thus the war only emphasized the old doctrine clearly laid down by Marshall and the Fathers generally, that though the States are sovereign as to all matters which have not been granted to the jurisdiction of the nation, the Constitution and all laws made in accordance with it, are the supreme law of the land ;” a truth which it has been well said is "the fundamental principle on which the authority of the Constitution is based.” The Thirteenth, Fourteenth and Fifteenth Amendments reorganized government in America, and chiefly in three ways: first, by changing the basis of representation; secondly, by defining United States citizenship, and thirdly by affecting the elective franchise. The utmost effect of the Thirteenth amendment was to declare the colored race as free as the white, but it gave that race nothing more than its freedom.3 It forever deprived the State governments and the National Government of the power to reduce any person to the condition

1 Id. 2 Id.; also Tarble's Case, 12 Wallace, 397 (1871). 3 Bowlin vs. Commonwealth, 2 Bush. 5.

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