LECTURE IV.

THE LEGISLATIVE DEPARTMENT OF THE FEDERAL GOVERNMENT.-IT IS SUPREME AND EXCLUSIVE OF STATE LEGISLATION. THIS POSITION CONSIDERED AS APPLIED TO TAXES, COMMERCE, NATURALIZATION, BANKRUPTCIES, COUNTERFEITING THE PUBLIC SECURITIES.

IN a classification of the powers of government, the legislative or law-making power has precedence. The power of construction, of ascertaining the meaning of a law, the power of execution, of carrying a law into effect, are powers equally independent and essential; but these do not create or impose upon the citizen the obligations and restrictions under which he performs his duties as a member of society.

The legislative department is the most extensive in its operations, because it creates and imposes upon the citizen the restrictions and limitations under which his powers and capacities, physical, mental, and moral, are developed for his individual advantage and improvement, and for the advantage and improvement of those with whom he may be said to be in competition.

The science, the philosophy of our system, is peculiarly manifest in the construction of this department. It is more immediately, more directly dependent upon the power and will of the people, than is either of the other departments. The persons, the trustees who exercise the powers and trusts of this department, are more easily

reached, more frequently changed by the people. The law makers are no less operated upon by the vicissitudes of life, the changing course of human events, than are the people; they are a part of the people. They cannot, therefore, establish for themselves any distinct and exclusive immunities. They have the same personal interest in an honest adherence to the system, to the charter by which their powers and trusts are defined, as any other portion of the community has, or can have. During their continuance in office, they act under the restraint and limitations imposed by written constitutions. It cannot be said, in language often but erroneously applied to the British Parliament, that it is omnipotent; that its will, unlimited, is law. No such or similar extent of power is confided to the legislative department of the national or state governments, or to those who execute their trusts.

The legislative department of the federal government is, in its effect and operation, to a large extent, external; it is also internal. Its internal power is subsidiary to, and is designed to sustain and secure the external and foreign relations of the union, including, as part thereof, the intercourse of the several states and their citizens with each other. It is supreme in its action, whenever rightfully and constitutionally applied to the matters confided to the federal sovereignty. This supremacy is conceded by all who have discussed its powers. It is also exclusive. This has been doubted and denied. Upon this supposed exclusiveness of its power, a confusion has arisen, from a misuse and misapplication of the term "concurrent," from an apparent forgetfulness of the fact, that the adoption of the federal constitution did not operate a merger, or an extinguishment of the private rights of the citizen, or take away the sovereignty of the states. These remain, except to a limited extent, except so far as they are controlled, for the use of the federal government.

The exercise by the several states of powers similar to those exercised by the national government does not render them concurrent, and has no tendency to show that a particular power of the federal government is not exclusive. This exclusiveness of power, in many particulars and upon some subjects, has been universally conceded; in other particulars it has been resisted and rejected. A power cannot be supreme in a particular person, department, or government, which may be concurrently exercised by another independent person, department, or government. A concurrent power when once put in motion becomes exclusive, and continues until its purpose is accomplished, its force exhausted.

The term concurrent is ordinarily and correctly applied to judicial proceedings, to courts and other departments, or officers acting under the same sovereignty, and not to the action or powers of distinct, independent sovereignties.

In some estates, or titles connected with property, there are shifting or springing uses. But the existence of authority in an independent sovereignty is not shifting, springing, or casual, to be exercised or not at the pleasure of a different government; but it is permanent, and coextensive with the duration of the government in which the authority is found. The suggestion, that a statute or law of an independent sovereign state may be repealed, or that its obligation may be destroyed or suspended by a statute or law of a different jurisdiction, does not commend itself to the judgment. The power of a territorial or of a colonial government, may be diminished or enlarged by the sovereignty under and by which the one or the other is protected. The several states and the national government sustain no such relation to each other. They are clothed with similar powers, but not with the same. Whether a particular subject belongs to the one or to the other, independent of express provi

sion, may be determined by reference to the duties and purposes for which they have severally been created. These, I doubt not, will afford the means of solution which any contingency may require. An ambassador cannot be received or refused by a state government, because his agency does not appertain to any business intrusted to a state.

An alien cannot be admitted to the benefits and privileges of an American citizen by state legislation. No one denies or doubts the principle involved, so far as it may be applied to these cases; but it is doubted and denied when applied to other subjects, more directly bearing upon the ordinary pursuits of life. In considering the extent and character of the legislative department, it must constantly be borne in mind, that it should be coextensive, and in harmony with the system of government established by the constitution. If this has not been accomplished, the system is defective. The powers of this department are defined in the constitution, and they cannot be exercised by any state or state department. Congress has no power to transfer its jurisdiction, or its discretion, and no state has authority to assume the one or the other. An analysis of the legislative department will exhibit the purpose and capacity of the federal government, so far as they depend upon powers expressly granted. These powers are stated in article 1, section 8, of the constitution of the United States. Some of these powers relate to the incidents and implements of war, to the foreign relations of the country, and have already been brought to your consideration. In addition to such powers, congress has authority to lay and collect taxes, direct and indirect; to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies,

throughout the United States; to coin money and regulate its value; to provide for the punishment of counterfeiting the securities and current coin of the United States; to establish post-offices and post-roads; to promote the progress of science and useful arts, by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to make all laws, which shall be necessary and proper for carrying into execution these powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof. To render these powers available and secure from state interference, to accomplish the purpose of the union, the several states are prohibited from exercising, upon certain subjects, powers similar to those conferred upon the federal government; in some other particulars, the states are absolutely prohibited from action. These prohibitions will be considered, when reference shall be made to the relation which the states bear to each other, and to the federal government. The powers which congress is authorized to exercise, and which have been recited, exhibit an intention to protect the several states and their citizens from foreign control or interference, to protect the states from each other, to protect the citizens in certain particulars from state legislation, to secure to the citizens of other countries such privileges as may be conceded to them by treaty stipulation, by law, or comity.

Some of these powers, by express provision of the constitution, must be so exercised as to produce throughout the United States, uniformity of action; others, in relation to which no such provision is found, from their character and purpose, and upon principles which should regulate all legislative action, must be so exercised as to pro