tion, is the complex character which results from the existence of State governments under a federal government. Had we but a single representative government, framed upon the general principles before indicated, how simple would be the study of constitutional law, compared with what it now is! To adjust the relations which the States should sustain to the federal government, in such a manner as to prevent future collision, and preserve general harmony, was undoubtedly the most difficult problem that ever presented itself to the framers of government. And accordingly, before we proceed to consider in detail the provisions of the federal and State constitutions, it is important that we should obtain distinct notions of the relations in which the States are actually placed by our federal organization.

And first, the federal government is not merely a league of the State governments; but emanates from, and expresses the sovereign will of all the people of the United States, in their original and aggregate capacity. (a) And herein consists the great and radi

(a) To be satisfied that this was the understanding of the convention, it is only necessary to read the debate of the first two days; during which it was resolved, that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary; that the legislature ought to consist of two branches, and that the members of the first branch ought to be elected by the people of the several States. These resolutions clearly point to the creation of a new system, and not to an amendment of the old: and were so regarded by the members. Mad. Pap. 746761. The same views were again expressed in the debate upon the motion, that the first branch should be elected by the State legislatures, which failed by a vote of 3 to 8-id. 800-808. But the following facts remove all doubt upon this point. On the 13th of June, the committee of the whole reported nineteen resolutions to the house, asserting the fundamental principles of the new system -id. 858. Instead of these, Mr. Patterson, of New Jersey, proposed to substitute a series of resolutions, simply amending the articles of confederation-id. 862. The two plans were debated until the 19th of June, when Mr. Patterson's plan was rejected by a vote of 7 to 3; and all the subsequent debates proceeded upon the hypothesis, that an entirely new system of government was to be provided-id. 904-928. Probably the ablest exposition yet given of the nature of the federal government, is to be found in the debate in the U. S. Senate, on Foote's resolution, in January, 1830; and see 1 Story, Const. § 306–372. But the general nature and construction of federal powers will be best understood by reading the following quotations from opinions delivered in the Supreme Court of the United States. In Martin v. Hunter, 1 Wheaton, 324-27, Judge Story says: "The constitution of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States.' There can be no doubt that it was com petent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own constitutions; and the people of every State had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State Governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States."- "The government of the United States can claim no powers which are not granted to it by the constitution; and the powers actually granted, must be such as are expressly given or given by

cal difference between the present government, and that league or confederacy to which it succeeded. On this point there would be no room for doubt, had the federal government been organized prior to, or simultaneously with, the State governments; as, without any inherent difficulty, might have been the case. But as the State necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.”—“The constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which, at present, might seem salutary, might in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom, and the public interests, should require."

În Houston v. Moore, 5 Wheat. 48, 49, Judge Story says: "The constitution, containing a grant of powers in many instances similar to those already existing in the State governments, and some of those being of vital importance also to State authority and State legislation, it is not to be admitted that a mere grant of such powers in affirmative terms to Congress, does, per se, transfer an exclusive sovereignty to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the States, unless when the constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a State to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish a uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction. In all other cases, not falling within the cases already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, 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 Cohen v. Virginia, 6 Wheat. 413, 414, Chief-Justice Marshall says: "That the United States form, for many, and most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests, in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire-for some purposes sovereign, for some purposes subordinate."

governments were previously in existence, it may be well to exhibit the proofs that they were not the creators of the federal government, and that the people of the whole Union were. And first, the constitution itself, which is the highest authority that can be appealed to, expressly declares its origin in these words of the preamble: "We, the people of the United States, do ordain and establish this constitution." Had it been the work of the States, this declaration would have been a falsehood, and would not have been allowed to stand. Secondly, the constitution was ratified by the people, through their delegates in conventions, as we have already seen, and not by the State legislatures; and the ratifications all purport to be in the name of the people. Thirdly, the federal government operates directly upon the people as individuals, and not, like the old confederation, upon the States collectively. So far, then, as respects the mere derivation of federal powers, they are of precisely the same character, as if the State governments had never existed, or had been annihilated by a complete consolidation of all powers in one general government. And every citizen of the Union is as much a constituent of the federal government as of his own State government. But, although the federal government thus derives its efficiency from the whole people, as the primary source of power, it nevertheless employs the agency and influence of the State governments in several of its operations. This, however, does not conflict with the proposition before laid down, because the very power of the State governments to exert this agency and influence is conferred on them by the federal constitution, and is not an original State power. This will be evident from a bare statement of some of the particulars in which this agency is employed. And, first, by the way of concession to the small States, the general principle of proportionate representation is departed from, so as to give all the States an equal representation in the senate; and, for the sake of convenience, the State legislatures, and not the people, elect the senators. (a) Secondly, for similar reasons, each State, however small, is allowed at least one representative: and for the rest, instead of apportioning the representatives among the aggregate population of the whole Union, they are apportioned" among the several States," omitting any fractions below the adopted ratio. Thirdly, by way of concession to the slaveholding States, they are allowed a greater representation than their free population would entitle them to, by adding three-fifths of the slaves. Fourthly, for the sake of convenience, the States determine the qualifications of electors of representatives; and the time, place, and manner of elections. Fifthly, for the same reasons of concession and convenience, the States

(a) The mode of electing senators was much disputed in the convention. A proposition, that they should be elected by the other house, was negatived by a vote of 3 to 7. A proposition that the executive should appoint them, did not pass to a vote. A proposition that the people should elect them, was negatived by a vote of 1 to 10. The election of them by the State legislatures was first agreed to unanimously, and afterwards by a vote of 9 to 2. Mad. Pap. 759, 814, 820, 821, 959.

elect the electors of president and vice-president, the number of whom is equal to the number of senators and representatives belonging to each State. And if the election goes before the house of representatives, the States have an equal vote. Now it is evident, that in all these respects, a different arrangement might have been made, so as to dispense with State influence or agency. Its actual existence, therefore, proves nothing as to the origin of federal powers.

§ 25. It is designed for national objects only. The federal government is designed to unite the people of the United States into one nation for national purposes only; leaving all other matters to the control of the State governments. This is evident, not only from the history of its organization already narrated, but also from the enumeration of objects in the preamble itself. These are, first, "to form a more perfect union;" secondly," to establish justice; thirdly, "to insure domestic tranquillity;" fourthly, "to provide for the common defence;" fifthly, "to promote the general welfare;" and sixthly, "to secure the blessings of liberty." These are all national objects, equally affecting all the members of the Union; and in no sense local or municipal, as distinguished from national. And the truth of the proposition will be still more manifest, when we come to consider the powers enumerated in the constitution, as the only powers which the federal government can exercise. We shall then find the number of powers to be small, and adequate only to effect objects in the strictest sense national. In fact, there was the strongest reason for extending the federal government thus far, but no reason for extending it further. The State governments were already in existence, and fully competent to manage their internal concerns; and it would have been folly to burden the federal government with such details. Indeed, had there been no State governments before, there would have been the same reason for creating them, in aid of the federal government, as there is for dividing States into counties, or counties into townships; namely, the extreme inconvenience, if not absolute impossibility, of extending the federal arm to all the minute concerns of each particular district. Accordingly, without adverting to the strong jealousy which prevailed at the time, respecting State rights, and which continues to this day, we find sufficient reason, on the score of expediency alone, for reserving to the States the entire control of their internal affairs.

$ 26. It is supreme with respect to those objects. (a) But the federal government, though limited in the number of its objects, to those which are national, is nevertheless supreme in regard to those objects; and in cases of conflict the State governments must yield, being thus far subordinate. This would have resulted neces

(a) In the first draft of the constitution, the declaration of supremacy was confined to acts of Congress and treaties. The supremacy of the constitution was afterwards inserted by a unanimous vote. Mad. Pap. 1234, 1408; 2 Story, Const. § 1830-1836.

sarily from the nature of the two governments; but to avoid all shadow of doubt on so momentous a subject, this supremacy is declared by the constitution itself in these explicit terms: "This constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." It would be difficult to devise language stronger than this. The latter part may almost be considered supererogation; for the subordination of the State governments would have followed as a necessary consequence from the supremacy of the federal government. And in the same spirit the next clause requires all State as well as federal officers, to bind themselves, by oath, to support the federal constitution. "The senators and representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this constitution." (a) The relation, therefore, of supremacy and subordination is completely established by the constitution itself; and the result is the four following gradations of authority: First, and paramount over all, is the federal constitution; secondly, treaties and acts of Congress; thirdly, State constitutions; and fourthly, acts of State legislatures. With respect to these four degrees of subordination the invariable rule is, that in case of conflict, the lower must yield to the higher; each degree being subordinate to those which go before, and superior to those which come after. Thus, in order to be valid, treatics and acts of Congress must conform to the federal constitution; State constitutions must conform to the federal constitution, treaties, and acts of Congress; and the acts of State legislatures must conform to all these, and to their particular State constitution. This idea of subordination among laws, springs from the very nature of written constitutions, limiting delegated power; and our federal organization only renders it somewhat more complicated. It is, therefore, unknown, where written constitutions are unknown. In England, for example, there is no such thing. Her parliament is omnipotent; and the validity of its acts cannot be called in question.

§ 27. The Judiciary is the final Arbiter. (b) In order to pre

(a) Mad. Pap. 845, 1175. The debate in the convention turned upon the question, whether this oath should be required of State officers, which was carried by a vote of 7 to 4.

(b) See 1 Story, Const. § 373-396. The Supreme Court of the United States refused to leave to the State of Mississippi to file a bill in equity, praying for an injunction to restrain the president from carrying into effect an act of Congress alleged to be unconstitutional, on the ground that they have no jurisdiction to control the jurisdiction of the other departments of the government. The court say, "The Congress is the legislative department of the government, and the president the executive. Neither can be restrained in its action by the judicial department, though the