and void, which attempted to enlarge its original jurisdiction. In the course of his opinion he said:

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been. erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that these limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution. is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely vojd, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality

effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution-would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or obey? 1

Two further cases may be considered in this connection, McCulloch v. Maryland (4 Wheaton, 316), decided in 1819, and Collector v. Day (11 Wallace, 113), decided in 1870.

For present purposes, the facts in McCulloch v. Maryland may be stated as an attempt on the part of the State of Maryland, by act of its legislature, to impose a tax upon a branch of the bank of the United States establishment in that State. We are not concerned with the power of the United States to establish a bank, for, although the power to create a corporation was not given in express terms to the Congress by the Constitution, and while the Congress might not have been authorized to establish a corporation as such, without relation to powers expressly or impliedly granted, nevertheless the court found that a corporation could be created, such as a bank, as a financial or fiscal agent of the United States, under the authorization to Congress to make all laws which shall be necessary and proper for carrying into execution the powers vested in the Congress.

Admitting the power to create the bank as an agency of the government of the Union, the court held that a State of the Union could not tax an agency of the General Government, and that a law of Maryland attempting to do so was unconstitutional, and therefore null and void, inasmuch as the United States was sovereign and could therefore lawfully exercise sovereign powers within the limits of the Constitution. It was the opinion of the

court that.

11 Cranch, 175-9.

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 sovereign with respect to the objects committed to the other.1

These were not idle words on the part of Mr. Chief Justice Marshall. He meant what he said, and, recognizing that "In America, the powers of sovereignty are divided between the government of the Union, and those of the States," the Supreme Court held the reverse to be true in the case of Collector v. Day (11 Wallace, 113), that the United States could not, under the Constitution, tax an agent of the States, in this particular instance a judicial officer of Massachusetts, and that an Act of Congress attempting to do so was unconstitutional, and therefore null and void. In delivering the opinion of the court, Mr. Justice Nelson referred throughout to McCulloch v. Maryland, saying:

It is conceded in the case of McCulloch v. Maryland, that the power of taxation by the States was not abridged by the grant of a similar power to the government of the Union; that it was retained by the States, and that the power is to be concurrently exercised by the two governments; and also that there is no express constitutional prohibition upon the States against taxing the means or instrumentalities of the general government. But, it was held, and, we agree properly held, to be prohibited by necessary implication; otherwise, the States might impose taxation to an extent that would impair, if not wholly defeat, the operations of the Federal authorities when acting in their appropriate sphere.2

That the United States could not tax an agency of the State would seem to be as clear as that the State could not tax an agency of the United States, and Mr. Justice Nelson, speaking for the court, so held for the following

reasons:

Court's

Government

It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State governments by their respec- Relation tive constitutions, remained unaltered and unimpaired, except so far as they to the were granted to the government of the United States. That the intention and to the of the framers of the Constitution in this respect might not be misunder- States stood, this rule of interpretation is expressly declared in the tenth article. of the amendments, namely: "The powers not delegated to the United States are reserved to the States respectively, or, to the people." The government of the United States, therefore, 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 necessary implication.

The general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres.

1 4 Wheaton, 410.

'11 Wallace, 123-4.

The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendreserved," are as independent of the general government as that government within its sphere is independent of the States.1

It is indeed, as Mr. Chief Justice Marshall said, "the province and duty of the judicial department to say what the law is" and that it is "of the very essence of judicial duty" to decide the conflict between competing rules of law. But the judicial power of the United States was not meant to be and is not the agency of the General Government, to maintain its supremacy at the expense of the States. It maintains the powers which the States, in their common interest, freely granted to the agency of their creation, which we call the United States, and protects it from assault by one of the States in its own interest. On the other hand, it maintains the rights of the States not granted by them to the Government of the Union, but, in the language of the 10th Amendment, "reserved to the States respectively, or to the people" against assault of that Government in the unconstitutional exercise of power. As Chief Justice Chase said in the great and leading case of Texas v. White (7 Wallace, 700, 725), decided in 1868, at a time when the existence of the States depended upon the correct interpretation of the judicial power of the United States:

"the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States." [County of Lane v. The State of Oregon, 7 Wall. 76.] Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constition, in all its provisions, looks to an indestructible Union, composed of indestructible States.

A difficulty standing in the creation of an international court of justice has been, and appears still to be, the difficulty of distinguishing judicial from political power. There appears to be a willingness to create an international judiciary, reserving, however, the right of each State in controversy, to determine whether the question involved is or is not political.

The experience of the United States shows that this question can properly be determined by a court, because in a long line of decisions the Supreme Court of the United States has not only been able to draw the line with precision, but also to the satisfaction of the litigating parties.

The nature of judicial power should, therefore, be clear to those who really care to unveil its mysteries.

'11 Wallace, 124.

XVIII

POWERS OF THE SUPREME COURT

I directed this cause to stand over for judgment, not so much from any doubt of what was the justice of the case, as by reason of the nature of it, the great consequence and importance, and the great labour and ability of the argument on both sides; it being for the determination of the right and boundaries of two great provincial governments and three counties; of a nature worthy the judicature of a Roman senate rather than of a single judge: and my consolation is, that if I should err in my judgment, there is a judicature equal in dignity to a Roman senate that will correct it.

The relief prayed must be admitted to be the common and ordinary equity dispensed by this court; the specific performance of agreements being one of the great heads of this court, and the most useful one, and better than damages at law, so far as relates to the thing in specie; and more useful in a case of this nature than in most others; because no damages in an action of covenant could be at all adequate to what is intended by the parties, and to the utility to arise from this agreement, viz. the settling and fixing these boundaries in peace, to prevent the disorder and mischief, which in remote countries, distant from the seat of government, are most likely to happen, and most mischievous. Therefore the remedy prayed by a specific performance is more necessary here than in other cases: provided it is proper in other respects: and the relief sought must prevail, unless sufficient objections are shewn by defendant; who has made many and various for that purpose. This court therefore has no original jurisdiction on the direct question of the original right of the boundaries; and this bill does not stand in need of that. It is founded on articles executed in England under seal for mutual consideration; which gives jurisdiction to the King's courts both of law and equity, whatever be the subject matter. The conscience of the party was bound by this agreement; and being within the jurisdiction of this court (4 Inst. 213; 1 Ves. sen. 204, 255), which acts in personam, the court may properly decree it as an agreement, if a foundation for it. To go a step farther: as this court collaterally and in consequence of the agreement judges concerning matters not originally in its jurisdiction, it would decree a performance of articles of agreement to perform a sentence in the Ecclesiastical court, just as a court of law would maintain an action for damages in breach of covenant. (Lord Chancellor Hardwicke in Penn v. Lord Baltimore, 1 Vesey, Sr., 444, 446-448, decided in 1750, English Reports, Full Reprint, Vol. XXVII, Chancery VII, 1903, pp. 1133-1135.)

We are all satisfied, that the bill must be dismissed. It is a case of mutual treaty between persons acting in that instance as states independent of each other; and the circumstance, that the East India Company are mere subjects with relation to this country, has nothing to do with that. That treaty was entered into with them, not as subjects, but as a neighbouring independent state, and is the same, as if it was a treaty between two sovereigns; and consequently is not a subject of private, municipal, jurisdiction. (Barclay v. Russell, 3 Ves. 424. Dolder v. Lord Huntingfield, 9 Ves. 283.)

The Court considers the case totally independent of the judgment, the Lord Chancellor pronounced: for the case, upon which the Court proceeds, is introduced by the answer, which has added a great number of particulars to the case by introducing the other treaty, which explains the first; and shews, it was not mercantile in its nature, but political; and therefore this decision stands wholly clear of the judgment upon the plea (Lord Commissioner Eyre in Nabob of the Carnatic v. East India Company, 2 Vesey, Jr., 56, 60, decided in 1793, English Reports, Full Reprint, Vol. XXX, Chancery X, 1903, p. 523.)

If the bill contains no averment of a right of soil in New-York, I think it must be defective, and lays no foundation for an injunction. To have the benefit of the agreement between the states, the defendants below (who are the settlers of New-York) must apply to a court of equity as well as the state herself; but, in no case, can a specific performance be decreed, unless there is a substantial right of soil, not a mere political jurisdiction, to be protected and enforced. (Chief Justice Ellsworth in State of New York v. State of Connecticut, 4 Dallas, 3, 4, note, decided in 1799.)