LECTURE VII.

The Nature of the United States Government (concluded).— Its Powers enumerated in the Constitution. - Residuary Powers delegated to the State Governments, unless expressly withheld. The People the Source of all Authority. - The United States Government supreme in the Exercise of its Constitutional Powers. - Its Implied Powers. Authority to use Proper and Convenient Means a Necessary Incident to the Grant of every Power. - Extent of the Legislative Powers of Congress. - Meaning of the Words "Necessary and Proper." - Incorporation of Banks. Taxation. Registration of Vessels. Paper Currency.

FROM what has been already stated, it follows that if the sovereignty of the United States is limited, the States also are subject to limitations. But there is this material difference, that while the governments of the several States have all the powers that are not withheld in terms, or conferred upon the government of the United States, the United States have no powers that are not enumerated in the grant. This distinction has sometimes been regarded as arising from the nature and origin of the respective grants. The States, it is said, constituted the Union, and retained all the powers which they did not part with. This assumption is not sustained by the language of the Constitution, or by history duly analyzed. The whole is simply this, certain enumerated powers were conferred by the Constitution on the General Government, and became the common property of the people of the United States. What was not thus given remained in the people of the several States, and was by them vested generally in the State governments,-subject, nevertheless, to numerous restrictions, and reserving certain powers to themselves. To know whether a particular power belongs to a

15 Elliott's Debates, Madison (Phila., 1876), 212.

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State government, we look to the exceptions; to know whether it belongs to the United States, we look to the enumeration in the grant. If not enumerated, it is not possessed by the United States; if not excepted, it is possessed by the State. The State governments have every thing that is not conferred on the nation, or specifically withheld; the United States nothing that is not specifically given.

In applying these principles, it is necessary to remember that what is given to the United States is necessarily, or if Congress choose to legislate, taken from the States, or a virtual restraint on them. As between two grants, one particular and proceeding by enumeration, the other general, if there is not room for both, the former will necessarily have the preference. A bequest of all the rest and residue of the testator's property is worth very little if the bulk of the estate is bequeathed specifically by the will. So a grant of all a man's land will not confer a title if there is a deed on record conveying the premises by metes and bounds.

Now, such is the relation between the General Government and the States. Both derive their authority from the people, the one specifically, the other by general words; but the title of the United States is paramount. This is not a mere priority of time, although the Constitution of the United States is anterior to the State Constitutions as now existing; it was by the express terms of the grant to take precedence of the States. By Article VI. section 2, the Constitution and the laws of the United States made in pursuance thereof, and the treaties made under the authority of the United States, were declared to be the supreme law of the land; and the judges. in every State were to be bound thereby, anything in the Constitutions and laws of the several States to the contrary notwithstanding.

Plainer words could not be used to express the plain intent that the United States should be supreme, within the limits of the Constitution. In the language of conveyancing, the States take under and subject to the grant to the United States. Everything that is exclusively given to the United States is therefore withheld from the States; and when the same

power is conferred on both, it must be exercised by the States in subordination to the General Government. The Constitution of the United States is limited only by itself; the State Constitutions have their limitation in the Constitution of the United States. However broad the powers of the States may be, they are notwithstanding circumscribed by the paramount authority of Congress.

From this results an important consequence. When the existence of a power is in question, the presumption is in favor of the States; when the question is whether the power is limited or absolute, the presumption is in favor of the General Government. For while the Government of the United States has no power which the Constitution does not give, it is subject to no restriction which the Constitution does not impose. The powers of the United States are absolute when not restrained by the terms of the gift; the powers of the States are controlled by the gift to the United States.

If we now turn to the Constitution, it will be evident that the powers conferred by that instrument are given absolutely, with some well-defined and limited exceptions. If it confers nothing which it does not express, the whole and every part of that which it expresses is conferred. In the language of Mr. Webster, the Constitution is an enumeration, not a definition or description. Congress shall have power to lay and collect taxes, duties, imposts, and excises; to regulate commerce with foreign nations and among the several States; to coin money, regulate the value thereof and of foreign coin; to declare war; to raise and support armies; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested in the Government of the United States. The executive power shall be vested in a President of the United States, who shall take care that the laws be faithfully executed. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.

Uncontrolled dominion could not be more clearly given, or

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in fitter terms; and in construing the instrument we must, on every principle of interpretation, follow and be guided by the words. There are certain express restrictions," that no ex post facto law or bill of attainder shall be passed;" that "the privilege of the writ of habeas corpus shall not be suspended;" that "no preference shall be given by any regulation of commerce to the ports of one State over those of another;" nor shall "any tax or duty be laid on articles of export from any State." But with these and other exceptions of a like kind, the powers given by the Constitution of the United States have no limits except those set by their own nature and the legislative discretion of Congress.

To illustrate this by an example: when the question is, Can a State rescind a conveyance from A to B, and revest the estate in A, we may examine the Bill of Rights or other prohibitory clauses of the State Constitution. If these forbid the act, we need look no farther. If they do not, on turning to the Constitution of the United States it will appear that the States are forbidden to impair the obligation of contracts, while the decisions of the courts of the United States establish that a grant is a contract within the meaning of this provision. The question must therefore be answered negatively as it regards the State.

Take another instance. Can a State enact a bankrupt law? The Constitution of the United States does not say that the States shall not make such laws. It does say that such a law may be made by the United States. Wherever the terms in which authority is conferred on the General Government, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the States as though it were expressly placed beyond their reach. Where a power is bestowed on Congress, and there is nothing contradictory or repugnant in the exercise of the same power by the States, both governments may exercise it in relation to different parts of the subject, and the laws passed by both will be binding and constitutional. If Congress have a power and exercise it in such wise that the exercise of the same power by the States would be incom

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patible, then the State law must give way to the act of Congress, not because the State law is unconstitutional, but because it is superseded by the paramount authority of the national legislature. It follows that a State bankrupt or insolvent law may be valid notwithstanding the power of Congress to establish uniform laws on the subject of bankruptcy throughout the Union, if Congress have not exercised their authority, and the State law does not impair the obligation of contracts, but that the enactment of a national bankrupt act will repeal the local insolvent laws absolutely, or so far as they conflict with the rule prescribed by the General Government.

Here the authority is express; but the result will be the same where it is incident or implied.1 The United States are not expressly authorized to establish corporations, and this power is confessedly possessed by the several States, which are also, prima facie, entitled to tax every natural or artificial person within their respective jurisdictions; and yet if Congress charter a bank or other body corporate to aid in the collection of the revenue, the regulation of the currency, or the execution of any other power conferred by the Constitution, the authority of the States will undergo a corresponding diminution, and they cannot tax the agency which Congress have created. This was established in the leading case of McCulloch v. The State of Maryland,2 to which I shall again refer in the course of this lecture.

These instances establish, first, that the States cannot adopt any measure which is expressly or impliedly prohibited by the national Constitution; and next, that although the grant of a power to Congress does not necessarily divest the jurisdiction of the States, it still operates as an implied prohibition of any exercise of their authority that will directly or indirectly conflict with the laws made by Congress. I may here advert to a principle which has been already stated, and which should not be lost sight of in interpreting the Constitution. Although 1 Shaw v. McCandless, 36 Miss. 296; Richardson v. Montgomery, 49 Pa. 203.

2 4 Wheaton, 316.