or was not reserved by the states as sovereign political communities, can, I apprehend, be authoritatively decided and settled only by a constitutional majority of the sovereign courts or conventions of the people; not by any act of any instituted government, nor by any decision of any instituted court, but only in the manner in which the constitution itself was originally ordained and established. For, the acts of government, state or federal, are nothing but the acts of agents, and therefore cannot be competent to the settlement of a question of the paramount sovereignty of the people: a truth which makes amendments to our constitutions, so far as they affect that sovereignty, null and void, or at least of but little value, when such amendments are made by the state legislatures, and not submitted to the people. It should be recollected, that 'The sovereignty of Government,' as the great Webster once said, 'is an idea belonging to the other side of the Atlantic. No such thing is known in North America. With us, all power is with the people. They alone are sovereign; and they erect what Governments they please. None of these Governments is sovereign."

So far, however, as relates to the right of the people of a single state, to resume the power it joined in granting to the federal governments; it is certainly clear from what we have seen, that no such right can exist. If it could indeed be supposed to exist, it would be nothing but the right of one state to give all the others a just cause of war! The so called right of secession is such, that it cannot be stated except as a self-contradiction. It is nothing at its foundation but the right of a man to violate the rights of his neighbors, usurp their common liberties, and destroy their common peace.

It has now been fully shown that our UNION is a UNION 2141. PrinOF STATES, as its name imports, and not a union of individ- ciples of the uals; that a UNION OF STATES is possible only as based Union.

1 See 2 150, post.

'Webster's Speech (in the U. S. Senate) on the Calhoun Resolutions,

1883. See Niles' Reg. Vol. XLIII, App. p. 170.

8142. Construction of

ers.

upon an organic law, established by them in their several sovereign capacities, and fixing the boundary line between the internal sovereignty of each and the external sovereignty of all; that this boundary line was present to the minds of the convention that framed the federal constitution; that they adopted the principle, that 'whatever object of government is confined in its operation and effects within the bounds of a particular state, should be considered as belonging to the government of that state, and whatever object of government extends, in its operation and effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States;' that to lessen or remove the difficulty, arising from discretionary construction on this subject, an enumeration. of the particular instances, in which the application of the principle ought to take place, was attempted with much industry and care;" and that, as to the federal government, its jurisdiction extends to certain enumerated objects only; its general powers are limited; and the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."

It is therefore clear, that it is only in relation to the powers specifically enumerated in the federal constitution, federal pow- as being conferred on the government thereby created, that any question can ever arise concerning the intended and legitimate operation of that government, or the appropriate sphere of its action; and that here, in determining the scope of its powers, the fundamental rule of interpretation and construction, is furnished by the principle that governed the convention of the states in framing the written expressions by which in terms those powers were conferred: the principle that limits the scope of those powers to whatever object of government extends, in its operation and effects, beyond the bounds of a particular

state.'

To illustrate this, let us instance the power which is

given to congress 'To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." It is very well known that the power to regulate commerce, was considered as one essentially necessary to the federal government. Now, does this power, by the terms in which it is given, extend to the regulation of the internal commerce of a state? The terms are, among the several states;' not, as between the several states. Perhaps there might be a doubt, if no rule of interpretation and construction were given. But we have such a rule in the principle above stated. The internal commerce of a state, is not an object of government which extends, in its legitimate or necessary operation and effects, beyond the bounds of that state. It has therefore been decided by the Supreme Court of the United States, that the grant to congress of the power in question, does not extend to or embrace the purely internal commerce of a state; and that that commerce is necessarily left to the regulation under state authority."

In the words of Chief Justice Marshall, again, 'The genius and character of the whole government seem to be, that its action is to be applied to all the EXTERNAL concerns of the nation, and to those internal concerns [of the nation] WHICH AFFECT THE STATES GENERALLY, but not to those which are completely within a state, when they do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government.'s

1 Const. U. S. Art. 1, 2 8.

221 How. U. S. Rep. 246, 247. See Am. Law Reg. for July, 1868, pp. 520, 521. The principle of leaving each state free to the management of its own internal affairs, and confining the operation of federal powers to their external relations, that is, to things in which all alike are equally interested, is fully established by the Supreme Court of the United States, as furnishing a criterion for the construction of those powers, by the following cases:-Gibbons v. Ogden, 9 Wheat. 1, 193, 194, 203; Wilson v. Blackbird Creek Co., 2 Pet. 245; Cooley v. Port Wardens, 12 How. U. S. Rep. 299; Gilman v. Philadelphia, 3 Wallace's Rep. 713; New York v. Miln, 11 Pet. 102, 138; Smith v. State of Maryland, 18 How. U. S. Rep. 71.

3 Gibbon v. Ogden, 9 Wheat. 194.

federal laws.

? 143. SuIt is certainly clear, that the government of the United premacy of States can exercise no powers but such as are actually granted to it by the federal constitution; and that the powers actually granted, can be such only as are expressly given, or given by necessary implication. On the other hand, it is also clear, that within the sphere marked out for that government, it is clothed with supreme jurisdiction.2 The language of the sovereigns here is "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, anything in the constitution or laws of any State to the contrary notwithstanding. 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.'

73

But,

This supremacy clause was much debated pending the
adoption of the constitution, and the objections thereto
called forth, in a number of 'The Federalist,' the following
exposition and defence thereof, from the distinguished
leader of the national party, Alexander Hamilton.
it is said, the laws of the union are to be the supreme law
of the land. What inference can be drawn from this, or
what would they amount to if they were not to be su-
preme? It is evident they would amount to nothing. A
LAW, by the very meaning of the term, includes suprem-
acy. It is a rule which those to whom it is prescribed are
bound to observe. This results from every political asso-
ciation. If individuals enter into a state of society, the
1 Martin v. Hunter' Lessee, 1 Wheat. 326, per Justice Story.

2 See 4 Wheat. 405-6, per Marshall, C. J.
3 Const. U. S. Art. vI.

This doctrine was admitted and applied in relation to the federal laws made pursuant to the Articles of Confederation. In Ware v. Hylton, 3. Dall. Rep. 199, 285, Judge Chase says:-'It seems to me that treaties made by Congress, according to the Confederation, were superior to the laws of the States, because the Confederation made them

laws of that society must be the supreme regulator of their
conduct. If a number of political societies enter into a
larger political society, the laws which the latter may
enact, pursuant to the powers entrusted to it by the con-
stitution, must necessarily be supreme over those societies,
and the individuals of whom they are composed.'. .
But it will not follow from this doctrine, that acts of the
larger society, which are not pursuant to its constitutional
power, but which are invasions of the residuary authori-
ties of the smaller societies, will become the supreme law
of the land. These will be merely acts of usurpation, and
will deserve to be treated as such. Hence we perceive,
that the clause which declares the supremacy of the laws
of the union, only declares a truth, which flows immediately
and necessarily from the institution of a federal govern-
ment. It will not, I presume, have escaped observation,
that it expressly confines this supremacy to laws made pur-
suant to the constitution; which I mention merely as an
instance of caution in the convention, since that limitation
would have been to be understood, though it had not been
expressed."

Mr. Madison, however, seems not to have regarded this supremacy clause as merely declaratory of 'a truth, which flows immediately and necessarily from the institution of a federal government.' He thought that, 'without it, the constitution would have been evidently and radically defective. To be fully sensible of this,' he said 'we need only suppose for a moment, that the supremacy of the state constitutions had been left complete, by a saving obligatory in all the States. They were so declared by Congress, on the 13th of April, 1787; were so declared by the Legislatures and Executives of most of the States, and were so decided by the Judiciary of the General Government, and by the Judiciaries of some of the State Governments.' See also 'The Federalist,' No. 38, p. 172.

1 This passage should be noticed, as showing that Hamilton did not belong to those 'political dreamers,' who, in the words of Chief Justice Marshall, were wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass.' See above, & 131.

The Federalist, No. 33, p. 145.

8 144.