restriction of the powers of the national government. In Sturges v. Crowninshield, (b) the Chief Justice of the United States observed, that the powers of the states remained, after the adoption of the Constitution, what they were before, except so far as they had been abridged by that instrument. The mere grant of a power by Congress did not imply a prohibition on the states to exercise the same power. Thus, Congress are authorized to establish uniform laws on the subject of bankruptcy; but the states may pass bankrupt laws, provided there be no acts of Congress in force establishing a uniform law on that subject. (c) The states may legislate in the absence of congressional regulations. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states. But the concurrent power of legislation in the states did not extend to every case in which the exercise of it by the states had not been expressly prohibited. The cor

rect principle was, that whenever the terms in which the * 389 power was granted to Congress, or the nature of the * power required that it should be exercised exclusively by Congress, the subject was as completely taken from the state legislatures, as if they had been expressly forbidden to act on it. In Houston v. Moore, (a) the same principles were laid down by Judge Washington, in delivering the opinion of the court. He observed, that the power of the state governments to legislate on the subject of the state militia, having existed prior to the formation of the Constitution, and not being prohibited by that instrument, it remained with the states, subordinate, nevertheless, to the paramount power of the general government, operating upon the same subject. If Congress, for instance, did not exercise the power of providing for organizing, arming, and disciplining the militia, it was competent for the states to do it; but as Congress had exercised its constitutional powers upon the subject of the militia as fully as was thought proper, the power (b) 4 Wheaton, 193.

(c) In Golden v. Prince, 3 Wash. 313, Judge Washington had previously held, in the Circuit Court of the United States for Pennsylvania, that Congress had the exclusive power to pass bankrupt laws; but this opinion was subsequently corrected, and qualified according to the doctrine in the text.

(a) 5 Wheaton, 1.

of legislation over that subject by the states was excluded, except so far as it had been permitted by Congress. The doctrine of the court was, that when Congress exercised their powers upon any given subject, the states could not enter upon the same ground, and provide for the same objects. The will of Congress may be discovered as well by what they have not declared, as by what they have expressed. Two distinct wills cannot at the same time be exercised, in relation to the same subject, effectually, and at the same time be compatible with each other. If they correspond in every respect, then the latter is idle and inoperative. If they differ, they must, in the nature of things, oppose each other so far as they do differ. It was, therefore not a true and constitutional doctrine, that in cases where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject on which Congress have acted, provided the two laws are not in their operation contradictory and repugnant to each other.

*

* Judge Story, in the opinion which he gave in this case, 390 spoke to the same effect, and defined with precision the boundary line between the concurrent and residuary powers of the states, and the exclusive powers of the Union. A mere grant of power in affirmative terms to Congress did not per se transfer an exclusive sovereignty on such subjects. The powers granted to Congress were never exclusive of similar powers existing in the states, unless where the Constitution has expressly in terms given an exclusive power to Congress, or the exercise of a like power was prohibited to the states, or there was a direct repugnancy or incompatibility in the exercise of it by the states. This is the same description of the nature of the powers as that given by the Federalist. An example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased for forts, arsenals, &c. ; and of the second class, in the prohibition of a state to coin money, or emit bills of credit; and of the third class, in the power to establish a uniform rule of naturalization, and in the delegation of admiralty and maritime jurisdiction. In all other cases, the states retain concurrent authority with Congress, except where the laws of the states and of the Union are in direct and manifest collision on the same subject, and then those of the Union, being the supreme law of the land, are of paramount authority, and the state laws, so far,

and so far only as such incompatibility exists, must necessarily yield.

*

In the application of these general principles to the case before the court, it was observed, that the power given to Congress to provide for organizing, arming, and disciplining the militia was not exclusive. It was merely an affirmative power, and, being not incompatible with the existence of a like power in the states, it might well leave a concurrent power in the latter. But when once Congress has acted on the subject, and carried this power into effect, its laws for the organization, arming, and disciplining the militia were supreme, and all interfering regulations of the states suspended. A state may organize arm, and disci*391 pline its own militia, in the absence of, or subordinate to, the regulations of Congress. This power originally existed in the states, and the grant of it to Congress was not necessarily exclusive, unless a concurrent power in the states would be repugnant to the grant, and there was no such repugnancy in the nature of the power. But the question was, whether a state legislature had any concurrent power remaining after Congress had provided, in its discretion, for the case. The conclusion was, that when once the legislature of the Union has exercised its powers on a given subject, the state power over that same subject, which had before been concurrent, was, by that exercise, prohibited; and this was the opinion of the court.

These expositions of the paramount powers of the general government are to be received as correct and conclusive, for they proceed from the highest authority, and are exceedingly clear and logical in their deductions. The same doctrines had been previously declared in the Court of Errors of New York, in the steamboat case of Livingston v. Van Ingen. (a) "Our safe rule of construction and action," as it was there observed, (b) "was this, that if any given power was originally vested in this state, if it had not been exclusively ceded to Congress, or if the exercise of it had not been prohibited to the states, we might then go on in the exercise of the power until it came practically in collision with the exercise of some congressional power. When that happened to be the case, the state authority would so far be controlled, but it would still be good in those respects in which it did not contravene the provision of the paramount law." A (b) 9 Johns. 576.

(a) 9 Johns. 507.

similar exposition of the concurrent jurisdiction of the states was given by the Supreme Court of Pennsylvania, in Moore v. Houston; (c) and by the Chief Justice of Massachusetts, in Blanchard v. Russell. (d)1 y1

1 Gilman v. Philadelphia, 3 Wall. 713.

When the Constitution of the United States was under the

consideration of the state conventions, there was much * 392 * concern expressed on the subject of the general power of taxation over all objects of taxation, vested in the national government; and it was supposed that it would be in the power of Congress, in its discretion, to destroy in effect the concurrent power of taxation remaining in the states, and to deprive them of the means of supplying their own wants. All the resources of taxation might, by degrees, become the subjects of federal monopoly. The states must support themselves, by direct taxes, duties, and excises, and Congress may lay the same burden, at the same time, on the same subject. Suppose the national tax should be as great as the article, whether it be land, or distilled spirits, or pleasure-carriages, for instance, will conveniently and prosperously bear, and the state should be obliged to lay a further tax for its own necessities; the doctrine, as I understand it, is, that the claim of the United States would be preferred, and must be first satisfied, because the laws of the United States, made in pursuance of the Constitution, are the supreme law of the land. The author of the Federalist (a) admits that a state might lay a tax on a particular article, equal to what it would well bear, but the United States would still have a right to lay a further tax on the same article; and that all collisions, in a struggle between the two governments for revenue, must and would be avoided by a sense of mutual forbearance. He nowhere, however, meets and removes the difficulty, in the case of a want of this mutual forbearance, where there is a con(a) No. 32. See also Nos. 31, 33, 34.

condition of servitude, in the exercise of the elective franchise; and Congress has no power to legislate for any purpose beyond this. United States v. Reese, 92 U. S. 214. As to "due process of law," see Kennard v. Louisiana, 92 U. S. 480; McMillen v. Anderson, 95 U. S. 37; Kelley v. Pittsburgh, 104 U. S. 78.

The history of these amendments, and their purpose as peculiarly applicable to the colored race, is discussed in the foregoing cases. They do, however, it would seem, apply to other races as well; and it has been held that the effect of them is

to forbid all class legislation, - such legislation being a denial of the " equal protection of the laws." Ah Kow v. Nunan, 5 Saw. 552; s. c. 18 Am. L. Reg. N. s. 676, and note; Parrott's Chinese Case, 6 Saw. 349; In re Ah Chong, ib. 451; Slaughter-House Cases, 16 Wall. 36, 72. Comp. State v. Ah Chong, 16 Nev. 50.

For further discussion of the respective, rights and powers of the United States and of the states, see United States v. Cruikshank, 92 U. S. 542; Tennessee v. Davis, 100 U. S. 257.