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The Green Bag

commonwealths, the original parties to the litigation. Intervening on behalf of the government, he contended for the paramount right of the United States to control the whole system of reclaiming arid lands by virtue of supposed sov ereign and inherent power. He con ceded that his proposition was an appar ent challenge of great decisions of the Court, but argued that: "There is a gap and vacancy of sovereignty somewhere, if the sovereign and inherent power of one state is restricted to its own terri tory, and there is no sovereign and in herent power in the nation to regulate where the powers of two or more states overlap, and so clash, and injure each other and the aggregate interests." The Court rejected by a unanimous decision the contention of the AttorneyGeneral, which was so radical as to imperil the autonomous condition of the several states. Forty years earlier Chief Justice Chase had presided in the leading case of Texas v. White6, an original proceeding in the federal Supreme Court insti tuted just after the Civil War, to pro cure an injunction preventing the frui tion of a scheme to loot the state's treasury of bonds said to have been seized by a combination of persons in armed hostility to the United States. If Texas by her participation in seces sion had ceased to be a state of the Union, the Court would have no juris diction of the controversy. In deliver ing the opinion sustaining the right of the prostrate state to maintain the suit, the Chief Justice, when the animosities engendered by the war were still fiercely burning, wrote these noble and momen tous words: "There is no loss of separate and independent autonomy to the states, through their union under the Constitu tion, but it may not be unreasonably •7 Wall. 700, April, 1869.

said that the preservation of the states, and the maintenance of their govern ments, are as much within the design and care of the Constitution as the preservation of the Union and the main tenance of the national government. The Constitution in all its provisions looks to an indestructible Union, com posed of indestructible states." And Justice Brewer's memorable opinion, delivered in Kansas v. Colorado on May 13, 1907, held that while the Constitution is not to be construed technically and narrowly "it still is true that no independent and unmentioned power passes to the national govern ment or can rightfully be exercised by the Congress." The Constitution enumer ates the powers granted by the people to their national government. All powers which properly appertain to sov ereignty and have not been so delegated to the federal government belong to the states and the people. So Justice Moody's judicial opinions in the Supreme Court present a remark able contrast to his argument as Attor ney-General in Kansas v.Colorado. Thus in Tilt v. Kelsey,7 speaking for the Court, he declared the sovereign author ity of the individual states in respect to the settlement of the succession of prop erty on death, and their right to give to their judicial proceedings conclusive effect as against the world, subject, of course, to constitutional limitations. And in Maiorano v. B. & 0. Railroad? the Justice holds that the construction by the Supreme Court of Pennsylvania of a statute of that state creating a right of action for death in favor of the sur viving relatives of a deceased as not extending to those who are non-resident aliens must be accepted by the federal Supreme Court on writ of error. This '207 U. S. 43, October, 1907. 9213 U. S. 268, April, 1909.