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subject of grave consideration what would be the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent states; and, in the mean time, upon the doctrine taught by the acts of Congress, and even by the judicial decisions of the Supreme Court, the colonists would be in a state of the most complete subordination, and as dependent upon the will of Congress, as the people of this country would have been upon the king and parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not congenial with the free and independent spirit of our native institutions; and the establishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression.




THE question how far the state governments have concurrent powers, either legislative or judicial, over cases within the jurisdiction of the government of the United States, has been much discussed. It will be my endeavour, in the course of the present lecture, to ascertain the just doctrine and settled distinctions applicable to this great and most important constitutional subject.

(1.) As to the concurrent powers of legislation in the


legislation of

In was observed in the Federalist," that the state govern- Concurrent ments would clearly retain all those rights of sovereignty the several which they had before the adoption of the constitution of states. the United States, and which were not by that constitution exclusively delegated to the union. The alienation of state power or sovereignty would only exist in three cases: Where the constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the union, and in another prohibited the states from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant.

In the judicial construction given from time to time to the constitution, there is no very essential variation from the contemporary exposition which was here laid down by the

a No. 32.

high authority of the Federalist. Judge Chase, in the case of C alder v. Bull, declared, that the state legislatures retained all the powers of legislation which were not expressly taken away by the constitution of the United States; and he held, that no constructive powers could be exercised by the federal government. Subsequent judges have not expressed themselves quite so strongly in favour of state rights, and in restriction of the powers of the national government. In Sturges v. Crowninshield, 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 act of Congress in force establishing a uniform law on that subject. 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 by the states had not been expressly prohibited. The correct principle was, that whenever the terms in which the power was granted to Congress, or the nature of the power, required that it should be

a 3 Dallas, 386.

b 4 Wheaton, 193.

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

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, 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 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 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.

a 5 Wheaton, 1.

Judge Story, in the opinion which he gave in this case, 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 have 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

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