Mr. Dana has well and faithfully performed a duty, requiring for its proper [{283}] and efficient discharge talents of the highest order. He has produced a book which will be read with interest, not only by the professional man, but by the general reader; for he treats on subjects that the people of the United States are, at the present time, and have been for the last five years, more nearly concerned with than ever before in the history of their government. And as the work is edited with signal ability, it is the more to be regretted that, in a Treatise on International Law, Mr. Dana has deemed it proper to incorporate his own political opinions on a question not of International, but of American Constitutional Law.
On pages 82 and 85, in a note on the United States as a supreme government, the editors says:
The United States "is a new state or government, acting directly upon each individual, by its own officers and departments, in the execution of its own laws. Within its sphere it acts as if there were no separate states in existence. It is also the final judge in a dispute between itself and a state as to the limits of its sphere of action."
"The civil war saw the final and complete establishment of that construction of the Constitution which makes the United States a State in the scientific sense of the term, having direct authority over each citizen, to be exercised by its own officers independently of the states; and a right to the direct allegiance of each citizen, from which no state action can absolve him; with the right to determine the limits of its own jurisdiction; with no appeal from its decision except through constitutional methods of altering the laws, or the administration, by the ballot, or through public revolution."
The editor entirely ignores the theory that the federal government is one of delegated powers, as well as the 10th article of the amendments to the Constitution, by which it is declared that "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." If the federal government has this exclusive right to determine the limits of its own jurisdiction, then has this provision of the bill of rights become nullity. Besides, the argument is an illogical one; if it be once admitted the powers of the federal government are delegated powers, it is difficult to maintain the theory that either an individual, or a government acting by virtue of delegated powers, is competent to decide, without appeal, on the extent of the powers delegated. There is always this great question to be solved, Have the people delegated such a power? If not, how can the determination of the federal government, that the people have done so, be construed to confer it?
If Congress should, by statute, enact that the presidential term of office should continue during the life of the incumbent, and the executive should ratify the act, and the judiciary decide that it was a constitutional exercise of the powers delegated, inasmuch as the federal government has the exclusive right to determine the limits of its own jurisdiction, would any sane man believe that this could give efficacy to such a gross usurpation?
But it is useless to follow out the argument; the mere statement of the principal is its own reputation.
Nor has the Civil War just ended established any such principle. Slavery has been abolished as a result of the war, but this has been done under the forms of the Constitution. The heresy of secession has also been overthrown forever; this, however, has been accomplished, not by virtue of any power in the federal government to determine the extent of its own jurisdiction, but because the majority of the people of the North have decided in favor of such a construction of the Constitution, upon a point left undetermined at its formation, upon which two great parties have ever since held opposite views, and which could only be settled by the ultima ratio regum; there being no other tribunal to which they could submit their differences.
The civil war was not waged for the purpose of enlarging the powers of the federal government, nor for the purpose of overthrowing or interfering with the rights or established institutions of the states; as was emphatically declared by both branches of Congress in 1861; and its effect has been simply to maintain the authority of the constitution, with all the powers which it confers, and all the restrictions which it imposes, unabridged [{284}] and unaltered. No such authority having been previously vested in the government, it cannot be assumed as one of the results of the civil war.
Putting aside, however, this only blemish upon a great work, we desired to call particular attention to the masterly manner in which Mr. Dana has treated the great topics of the day.