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as to their operation as limitations upon the states, and their influence upon individual rights; (3) to state some of the practical results reached, and rules of law established by the decisions in the construction of the provisions of the constitution, as originally adopted, imposing limitations upon the state; and (4) by this means to lay the foundation for developing, in subsequent parts of this work, the original and appellate jurisdiction of the federal judiciary in cases involving a federal question. On account of the great number and variety of novel and practical questions arising in legislation out of the late amendments, and their overshadowing importance, and for convenience of arrangement, the limitations contained in the late amendments are here considered in advance of a consideration of the limitations found in the constitution as originally adopted.

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§ 179. Principles of the government as settled prior to the adoption of the late amendments.-Prior to the adoption of the thirteenth, fourteenth and fifteenth amendments to the federal constituton, the great and fundamental principles of the American system of government had been explained, defined and settled, by the decisions of the supreme court of the United States, which tribunal is, by the organic law, vested with the absolute right of decision, in the last resort, of all federal questions. Before entering upon an examination of the limitations imposed upon the states by the amendments above named, it is deemed convenient, if not expedient, to state some of the principles of the government which had been settled by the adjudications prior to their adoption, as a means of facilitating their examination, and illustrating their effect upon the structure of the government. Such a method of investigation and examination will obviate the necessity of "the long progression of the thoughts to remote and first principles in every case. The following are some of the principles so settled by the previously decided cases:

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1. The federal constitution created and established a dual government or complex polity, in which the attributes and powers of sovereignty were divided and partitioned between. the federal government and the state governments. 2. The

1 Martin v. Hunter's Lessees, 1 Wheat. 304, 382 (4:97); Cohens v. Virginia, 6 Wheat. 264, 448

(5:252); Ableman v. Booth, 21 How. 506, 526 (16:169).

2 Locke, Concerning The Understanding, 502.

attributes and powers of national sovereignty were by the constitution surrendered to, and vested in the federal government: the federal government is a government of delegated, enumerated and limited powers; but it is a national government, and, for the purposes of executing the powers confided. to it by the constitution, it may legitimately control all individuals and governments within the American territory. 3. The attributes and powers of municipal sovereignty, including the police power, were, by the constitution, reserved to the states; this municipal sovereignty embraces all the powers of government not by the constitution surrendered to the federal government nor prohibited by it to the states. 4. The federal constitution, and the laws of the United States made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, are the supreme law of the land; but an act of congress which is repugnant to the constitution is absolutely null and void, and constitutes no part of the law of the land. 5. The constitution and laws of a state, when repugnant to the constitution and valid laws and treaties of the United States, are absolutely void, and may be so declared by the supreme judicial power of the federal government. 6. The federal and state governments, each, is sovereign and supreme within the sphere of gov ernmental action assigned to it by the constitution; but when a conflict arises between the authority of the federal government and the authority of a state government, the latter must yield to the supremacy of the former, until the validity of the conflicting claims can be finally determined by the judicial power of the national government. 7. Under the federal constitution, as expounded by the supreme court, the powers of government have been classified, as follows: (1) Powers which belong exclusively to the states; (2) Powers which belong exclusively to the national government; (3) Powers which may be exercised concurrently and independently by both; and (4) Powers which may be exercised by the states, but only until congress shall see fit to act in the exercise of them, when the authority of the state retires and lies in abeyance.3 8. The

3 Martin v. Hunter's Lessee, 1 Wheat. 304, 382 (4:79); Cohens v. Virginia, 6 Wheat. 264, 448 (5:252); Gibbons v. Ogden, 9

Wheat. 1, 240 (6:23); Brown v.
Maryland, 12 Wheat. 419 (6:678);
License Cases, 5 How. 504
(12:256); New York v. Miln, 11

first ten amendments to the federal constitution are limitations on the federal government, and impose no restraints, whatever, upon the states.*

§ 180. Same-Divided sovereignty-The doctrine of Marshall, Taney and Waite.-In a legal treatise, confessedly based in all principal matters, upon the decisions of the supreme court of the United States, we are not, in anywise, concerned with the discussions of statesmen and publicists, as to the seat of sovereignty in the American system of government, the sole purpose being to state the doctrine of the supreme court upon that subject; and it may be safely affirmed, that the court has, from the first, held, without variableness or shadow of turning, to the doctrine of a divided sovereignty.

In a great case involving a direct conflict of authority, between the United States and the State of Maryland, and also involving the vital principles of the government, the powers of the state and federal government, and their relations to each other, under the constitution, Chief Justice Marshall said: "The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the union and those of the states. They are each sovereign, with respect to the objects committed to it, and neither is sovereign with respect to the objects committed to the other."

In a case involving a conflict of authority between the United States and the state of Wisconsin, and in which the state supreme court had discharged upon writ of habeas corpus a prisoner held in custody under a conviction and sentence of a United States district court held in that state, Chief Justice Taney, after stating the case, said: "The judges of the supreme

Pet. 102 (9:648); M'Culloch v Maryland, 4 Wheat. 316, 437 (4: 579); Ableman v. Booth, 21 How. 506, 526 (16:169); Dred Scott v. Sanford, 19 How. 393, 633 (15: 691); Dobbins v. Comrs., 16 Pet. 435 (10:1022); Cooley v. Port Wardens, 12 How. 299 (13:996); Wilson v. Black Bird Creek Marsh Co., 1 Pet. 245 (7:413); Gilman v.

Sheboygan, 2 Black. 510, 518 (17:305); American Ins. Co. v. 356 Bales Cotton, 1 Pet. 511, 542 (7:242).

4 Barron v. Baltimore, 7 Pet. 243 (8:672); Fox v. Ohio, 5 How. 410 (12:213).

5 M'Culloch V. Maryland, 4 Wheat. 316, 437 (4:579).

court of Wisconsin do not distinctly state from what source they suppose they have derived this judicial power. There can be no such a thing as judicial authority, unless it is conferred by a government or sovereignty; and if the judges and courts of Wisconsin possess the jurisdiction they claim, they must derive it either from the United States or the state. It certainly has not been conferred on them by the United States; and it is equally clear it was not in the power of the state to confer it, even if it had attempted to do so; for no state can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent government. And although the state of Wisconsin is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the constitution of the United States. And the powers of the general government, and of the state, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a state judge or a state court, as if the line of division was traced by landmarks visible to the eye. And the state of Wisconsin had no more power to authorize these proceedings of its judges and courts, than it would have had if the prisoner had been confined in Michigan, or in any other state of the union, for an offense against the laws of the state in which he was imprisoned.

The constitution was not formed merely to guard the states against danger from foreign nations, but mainly to secure union and harmony at home; for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose, it was felt by the statesmen who framed the constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the states then possessed should be ceded to the general government; and that, in the sphere of action assigned to it, it should be supreme and strong enough to execute its own laws by its own tribunals, without interruption from a state or from state authorities."6 In a case decided by the supreme court at the

• Ableman v. Booth, 21 How. 506, 526 (16:169). In the Dred Scott

case, the same learned judge, speaking of the federal govern

December term, 1871, involving a conflict of authority between the federal government and the state of Wisconsin, Field, Justice, quoted with approval the above opinion of Chief Justice Taney, and announced, without qualification the same doctrine; and throughout the decisions of that court the principle is referred to as an axiom of the government.8

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§ 181. Same-Municipal sovereignty of the states defined.— The distinction between national sovereignty and municipal sovereignty is not an arbitrary one, but it naturally arises out of the nature of government, and has often been recognized by the United States supreme court as a distinction which marks the boundary line between federal and state power. In one case, the court, discussing the power of the United States in the territories, said:

"By the constitution, as is now well settled, the United States, having rightly acquired the territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, federal and state, over all the territories, so long as they remain in a territorial condition."' 10

While the municipal sovereignty is, from its nature, incapable of exact definition or limitation, and "it is much easier to perceive and realize the sources of it, than to mark its boundaries, or prescribe limits to its exercise," yet the supreme court has made efforts to define it; in a case involving the validity of an act of the state of New York regulating the landing of passengers from any foreign country, it is defined as follows:

"We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a state has the

ment, said: "For although it is sovereign and supreme in its appointed sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation."

7 United States v. Tarble, 13 Wall. 397, 413 (20:597).

8 United States v. Cruikshank, 92 U. S. 542 (23:588).

Pollard v. Hogan, 3 How. 212, 235 (11:565); American Ins. Co. v. 356 Bales Cotton, 1 Pet. 511, 542

(7:243); Benner v. Porter, 9 How.
235, 242 (13:119); Cross v. Harri-
son, 16 How. 164, 193 (14:889);
Bank v. Yankton Co., 101 U. S.
129, 133 (25:1046); Murphy v.
Ramsey, 114 U. S. 15, 44 (29:47);
Mormon Church v. United States,
136 U. S. 1, 43 (34:478); McAllis-
ter V.
United States, 174, 181
(35:691); Shively v. Bowlby, 152
U. S. 1, 58 (38:331).

10 Shively v. Bowlby, 152 U. S. 1, 58 (38:331).

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