of the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same. In fact, the Constitution was ratified by conventions of delegates chosen by the people in eleven of the States before the new government was organized under it; and the remaining two, North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by anything contained in the Articles of Confederation, which purported to be articles of "perpetual union," and the action of the eleven States in making radical revision of the Constitution, and excluding their associates for refusal to assent, was really revolutionary in its character, and only to be justified by that absolute necessity for a stronger government which had been fully demonstrated.1

1 "Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the form of a solemn compact among the States, can be superseded without the unanimous consent of the parties to it; 2. What relation is to subsist between the nine or more States ratifying the Constitution and the remaining few who do not become parties to it. The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted, among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all of the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate, and the flattering prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one

Left at liberty now to assume complete powers of sovereignty, as independent governments, these two States saw fit soon to resume their place in the American family, under a permission contained in the Constitution; and new States have since been added from time to time, all of them, with the exception of one, organized by the consent of the general government with territory before under its control. The exception was Texas, which had previously been an independent sovereign state, but which, by the conjoint action. of its government and that of the United States, was received into the Union on an equal footing with the other States.

Without therefore discussing, or even designing to allude to, any abstract theories as to the precise position and actual power of the several States at the time of forming the present Constitution, it may be said of them generally that they have at all times been subject to some common national government, which has exercised control over the subjects of war and peace, and other matters pertaining to external sovereignty; and that when the only three States which ever exercised complete sovereignty accepted the Constitution and came into the Union on an equal footing with all the other States, they thereby accepted the same relative position to the general government, and divested themselves permanently of those national powers which the others had never exercised.

The government of the United States is one of enumerated powers; the national Constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess. In this respect it differs from the constitutions of the of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and above all the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side and prudence on the other." Federalist, No. 43 (by Madison).

1

"The government of the United States 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." Per Marshall, Ch. J. in Martin v. Hunter's Lessee, 1 Wheat 326. "This instrument contains an enumeration of the powers expressly granted by the people to their government.

several States, which are not grants of power to the States, but which apportion and impose restrictions upon powers which the States inherently possess. The general purpose of the Constitution of the United States is declared by its founders to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." To accomplish these purposes the Congress is empowered by the eighth section of article one:

1. To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.

2. To borrow money on the credit of the United States.

3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.

4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcy, throughout the United States. 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

6. To provide for the punishment of counterfeiting the securities and current coin of the United States.

7. To establish post-offices and post-roads.

8. To promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective writings and discoveries.

9. To constitute tribunals inferior to the Supreme Court. To define and punish piracies and felonies committed upon the high seas, and offences against the law of nations.

10. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

11. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years. 12. To provide and maintain a navy.

13. To make rules for the government and regulation of the land and naval forces.

Marshall, Ch. J. in Gibbons v. Ogden, 9 Wheat. 187. See Weister v. Hall, 52 Penn. St. 477. The tenth amendment to the Constitution provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

14. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.

15. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

16. To exercise exclusive legislation in all cases whatsoever over such district not exceeding ten miles square, as may by cession of particular States, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.

17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.

The executive power is vested in a President, who is made commander-in-chief of the army and navy, and of the militia of the several States when called into the service of the United States; and who has power, by and with the consent of the Senate, to make treaties, provided two thirds of the Senate concur, and with the same advice and consent to appoint ambassadors, and other public ministers, and consuls, judges of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for.1

The judicial power of the United States extends to all cases in law and equity arising under the national Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a

1 U. S. Const. art. 2.

State or citizens thereof and foreign states, citizens, or subjects.1 But a State is not subject to be sued in the courts of the United States by the citizens of another State, or by citizens or subjects of any foreign state.2

The Constitution, and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, are declared to be the supreme law of the land; and the judges of every State are to be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.3

It is essential to the protection of the national jurisdiction, and to prevent collision between State and national authority, that the final decision upon all questions arising in regard thereto should rest with the courts of the Union; and as such questions must often arise first in the State courts, provision is made by the Judiciary Act of 1789 for removing to the Supreme Court of the United States the final judgment or decree in any suit, rendered in the highest court of law or equity of a State, in which a decision could be had, in which was drawn in question the validity of a treaty, or statute of or authority exercised under the United States, and the decision was against their validity; or where was drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of such their validity; or where was drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision was against the right,

1 U. S. Const. art. 3, § 2.

2 U. S. Const. 11th Amendment.

3 U. S. Const. art. 6; Owings v. Norwood's Lessee, 5 Cranch, 348; Foster v. Neilson, 2 Pet. 253, 314. When a treaty has been ratified by the proper formalities, it is, by the Constitution, the supreme law of the land, and the courts have no power to examine into the authority of the persons by whom it was entered into on behalf of the foreign nation; Doe v. Braden, 16 How. 635, 657; or the powers or rights recognized by it in the nation with whom it was made; Maiden v. Ingersoll, 6 Mich. 373. A State law in conflict with it must give way to its superior authority. Yeaker v. Yeaker, 4 Met. Ky. 33.

Martin v. Hunter's Lessee, 1 Wheat. 304, 334; Cohens v. Virginia, 6 Wheat. 264; Bank of United States v. Norton, 3 Marsh. 423'; Braynard v. Marshall, 8 Pick. 196, per Parker, Ch. J.; Spangler's Case, 11 Mich. 298.