§ 34. General consensus of opinion in support of Nationality of United States.-A long line of other expressions of opinion from Alexander Hamilton to date could be quoted, but the precedents referred to, together with the decisions and opinions collated in the subsequent chapters, and referred to in the footnotes, should certainly be accepted as fully answering every question which has ever been raised as to the completeness of the sovereignty and nationality of the United States. It is almost inexplicable why any person or party should desire to limit those powers of the Federal Government, which are exercised exclusively in regard to matters not only wholly within its domain, but which are also wholly beyond the power or control of any State; although no party, person, state or faction would be benefited by imposing such limitations, yet from the earliest period of our national history there has always been a party which for unexplained and unaccountable reasons has taken for its watchword the curtailment of national power, not only as to those matters which relate to the States, and in which the power of the State increases relatively as the power of the Central Government diminishes, but also as to matters exclusively within the domain of the National Government and which require for their proper administration the fullest measure of nationality, sovereignty and power.

$35. Gradual development of theory of Nationality.The theory of complete nationality and sovereignty of the United States has been gradually developed; its evolution commences with the early decisions of Chief Justice Marshall, notably in the Florida or Canter case1 which will be alluded to in another chapter, in which he said that the right to acquire territory was derived from the war or treatymaking power under constitutional delegation, or as an attribute of sovereignty existing in the government; he declared, however, that it was unnecessary at that time, to decide under which head to classify it; its complete development is shown in the decision of Mr. Justice Gray in the Navassa Island case, in which he unhesitatingly and broadly $35. Peters, 511, MARSHALL, Ch. J., post.

1 American Insurance Co. vs. Canter, U. S. Sup. Ct. 1828, 1 2 Jones vs. United States, U. S.

asserted that the right of acquisition of territory was beyond doubt an attribute of the United States Government, not under constitutionally delegated power, but an attribute vested in it under the law of nations, in the same manner and to the same extent as the power is possessed by the governments of other sovereign nations.

§ 36. Limitations by fundamental principles.1-Side by side with the theory of complete nationality there has also developed, as was necessary and proper, the theory that these

Sup. Ct. 1890, 137 U. S. 202, | Ct. 1803, 1 Cranch, 137, MARGRAY, J., and see § 32 and notes SHALL, Ch. J.; thereunder, ante. § 36.

1 The cases referring to the limitation of governmental powers by the fundamental principles on which this government is based will be found in the collation of cases referred to in the arguments before, and opinions of the Supreme Court in the INSULAR CASES APPENDIX at end of this volume, including:

Bank of Columbia vs. Okely, U. S. Sup. Ct. 1819, 4 Wheaton, 235, JOHNSON, J.;

Chicago, etc., Ry. Co. vs. Tompkins, U. S. Sup. Ct. 1900, 176 U. S. 167, BREWER, J.;

Cummings vs. Missouri, U. S. Sup. Ct.1866, 4 Wall. 277, FIELD, J.; Dartmouth College vs. Woodward, U. S. Sup. Ct. 1819,4 Wheaton, 518, MARSHALL, Ch. J.;

Kemmler, In re, U. S. Sup. Ct. 1890, 136 U. S. 436, FULLER, Ch. J.; Legal Tender Cases, (1) U. S. Sup. Ct. 1869, 8 Wall. 603, CHASE, Ch. J.; (2) 1870, 12 Wall. 457, STRONG, J; (3) 1884, 110 U. S. 421, GRAY, J.;

Loan Association vs. Topeka, U. S. Sup. Ct. 1874, 20 Wall. 655, MILLER, J.;

Maxwell vs. Dow, U. S. Sup. Ct. 1900, 176 U. S. 581, PECKHAM, J.; Mormon Church Case, U. S. Sup. Ct. 1890, 136 U. S. 1, BRADLEY, J.;

Murphy vs. Ramsey, U. S. Sup. Ct. 1885, 114 U. S. 15, MATTHEWS, J.;

Sharpless vs. The Mayor, &c., 21 Penn. St. Rep. 147, Sup. Ct. Pa., 1853, BLACK, J.;

Slaughterhouse Cases, U. S. Sup. Ct. 1872, 16 Wall. 36, MILLER, J.;

Weimar vs. Bunbury, Sup. Ct. Mich. 1874, 30 Mich. 201, COOLEY, J.;

Yick Wo vs. Hopkins, U. S. Sup. Ct. 1886, 118 U. S. 356, MATTHEWS, J.; and see p. 369, where the court says, in holding one of the anti-Chinese ordinances of San Francisco as void under the Fourteenth Amendment, "But the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws; so that in the famous language of

Lord Bishop of Natal, Privy the Massachusetts Bill of Rights, Council 1864, 3 Moore Priv. Coun. the government of the commonN. S. 115, WESTBURY, Lord Chan.; wealth may be a government of Marbury vs. Madison, U. S. Sup. | laws and not of men.'"

natural and inherent attributes of sovereignty possessed by the Government of the United States in its National character, are limited in their exercise, not by constitutional provisions, but by those fundamental principles upon which the Government of the United States, and of its people, is based.

This joint development of the two theories is not only perfectly consistent, but one necessarily grows and expands with the other, and in such development each furnishes to the other mutual support and strength.

$37. Views of Ex-President Harrison.*-True it is that Ex-President Harrison, in his recent utterances at Ann Arbor and in the North American Review,' declares that the theory of limitations by fundamental principles is not in accord with American constitutional history; learned as he is, however, in constitutional and international law, for unquestionably Mr. Harrison is one of our leading authorities upon those great branches of jurisprudence, as was evidenced by his remarkable, and in many respects successful, argument before the Venezuelan arbitration tribunal, he evidently overlooks the fact that the doctrine of limitation by fundamental principles has been clearly enunciated and defined by the Supreme Court; in fact that court has made it a part of the doctrine of acquisition of, and sovereignty over, the territories, which Mr. Harrison himself admits has not only been thoroughly, but properly, established as part of the constitutional law of this country. He declares that our forefathers were not content with general and unwritten limitations, but forced into the Constitution written limitations as to the exercise of sovereignty by the ruling powers.2 In *These sections were written prior to the death of Mr. Harrison.

§ 37.

1"The Status of Annexed Territory and of its Free Civilized Inhabitants" by Benjamin Harrison, formerly President of the United States, North American Review, January, 1901, p. 110.

justice and benevolence of the Congress. The man whose protection from wrong rests wholly upon the benevolence of another man or of a Congress, is a slave—a man without rights. Our fathers took security of the governing depart2"For themselves, our fathers, ments they organized; and that, were not content with an assur- notwithstanding the fact that the ance of these great rights that choice of all public officers rested rested wholly upon the sense of with the people. When a man

this, however, so far as he refers to government of territories, he is clearly wrong; the decision of the Supreme Court shows that fundamental, rather than constitutional, limitations are frequently the only check upon congressional action.

4

Undoubtedly, as the Supreme Court asserted in Murphy vs. Ramsay, complete and unlimited power is repugnant to our institutions; but it also declared in the Mormon Church case, that those limitations in many instances are found, not in the Constitution, but in the fundamental principles upon which our government is established; these two judicial declarations have been repeatedly followed in later decisions of the Supreme, and other courts, of the United States, reference to some of which have been collated in the next chapter.

§ 38. Unsoundness of Mr. Harrison's views.—Mr. Harrison takes a very gloomy view of the results of the doctrine of fundamental principles; in fact, he refers to it somewhat sarcastically as one of the limitations, not by principles of government, but by benevolence; he also seems to feel that the doctrine if accepted, necessarily implies that the only limitations which can be placed upon congressional action are such as may appeal to Congress in its existing mood at the time of the legislation.1

lative or executive powers is an un-American government. And, for one, I do not like to believe that the framers of the National Constitution and of our first State Constitutions were careful only for their own liberties."

But if this doctrine of limitation is to be applied to congressional action in regard to those matters in which the strictly limits the powers of an A government of unlimited legisagent of his own choice, and exacts a bond from him, to secure his faithfulness, he does not occupy strong ground when he insists that another person, who had no part in this selection, shall give the agent full powers without a bond. "If there is anything that is characteristic in American Constitutions, state and national, it is the plan of limiting the powers of all public officers and agencies. You shall do this; you may do this; you shall not do this-is the form that the schedule of powers always takes. This grew out of our experience as English colonies.

3 Murphy vs. Ramsay, U. S. Sup. Ct. 1885, 114 U. S. 15, MATTHEWS, J. 4 Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, BRADLEY, J., And see extract from opinion in § 60, chapter II, post. § 38.

This also applies to the article of ex-Senator Edmunds, No. Am. Rev. Aug., 1901.

Federal Government is supreme and national, there is no more danger of proper bounds being exceeded than has ever existed in the past; on this point we have the authority of Chief Justice Marshall and Mr. Justice Story that the doctrine of limitations ab inconvenienti, or the limitation of a general power for fear that the right to exercise it may lead to abuse, will not be considered. The principles of broad construction of the Constitution as to the delegated powers conveyed in general terms must apply with equal, if not stronger force, to those powers which Congress possesses in its capacity as the single mouth-piece of, and the only medium through which, the people of the United States can speak and act as to those matters which they possess and control as a national unit.

$39. Fundamental principles and the first ten amendments. The theory of fundamental principles had its inception as early as the framing of the Constitution; to many the adoption of the first ten amendments, commonly known as the Bill of Rights, was wholly unnecessary; there were members of the Constitutional Convention who considered that the enumeration of certain fundamental rights would be dangerous as it might result in the exclusion, and to the derogation, of other rights equally fundamental, but which might possibly be omitted in the enumeration. The first ten amendments, however, were added in order to satisfy the wishes of those who felt that the personal rights of freedom and liberty therein enumerated should be specifically preserved to the people.

It is doubtful, however, if any one in this country considers that his personal rights have any greater protection by reason of the adoption of those amendments, than though they had remained as a part of the fundamental principles, upon which the whole government was based, and unexpressed except as they are embodied in the law of the land and as they have always been recognized by the people and by the courts.

2" A power, given in general | if abused may lead to mischievous terms, is not to be restricted to consequences." 1 Story's Comm. particular cases merely because it on the Coust. § 425, 5th ed. p. 324. may be susceptible of abuse, and