between fundamental and ordinary laws, by considering the case of a ship dispatched by its owner upon a distant voyage.

It would obviously be in the power of the owner to prescribe in advance as well the particular duties of the captain and crew from day to day, as the general nature and purpose of the adventure. But, how would a prudent owner manage in such a case? He would content himself with dictating the termini and object of the voyage, the rank and pay of the various officers, to which he might add general directions for the safety of the freight and the health and comfort of the crew. Beyond this, every thing relating to the voyage would be left to the officers. They would make rules for particular exigencies, as they should arise, direct when to tack, when to furl and when to unfurl the sails to conform to the variations of the weather, and prescribe the particular course in which to steer from day to day, to avoid rocks and shoals, keeping constantly in view, nevertheless, and, as far as practicable, acting in literal conformity to the owner's instructions. Now, such general directions relating to the objects of the voyage, the equipment of the ship, and the number and duties of those to whom her management should be intrusted, as it would be practicable to lay down in advance, as being not only thoroughly settled in the owner's mind, but as applicable under all circumstances of wind and weather, and in any probable condition of the ship, might be considered as fundamental to the adventure, and as proper for a prudent owner to prescribe. All such regulations, on the other hand, and all such devices and arrangements as would show themselves to be necessary only from time to time as the voyage should progress to protect the ship, freight, or crew, in special emergencies, or to advance the general purposes of the voyage, would not be fundamental, because not only would they be of less general consequence, but they would depend on circumstances that would be casual, and, therefore, not to be foreseen; and hence they would properly be left to the discretion of the master on the spot.

§ 87. The comparison of a commonwealth to a ship has been a favorite conception of poets and philosophers in all ages, but I doubt if in any respect the parallelism between them is so complete as in that specified above. I shall not occupy further space by pointing out minutely wherein that parallelism consists, but observe simply that the important points are, first, that fun

damental laws are either structural, or expressive of the settled policy of the state; and second, that they may, consequently, be, as they theoretically are, laid down in advance, for ages to come; whilst, on the contrary, ordinary laws are merely temporary expedients or adjustments, and cannot be allowed to stiffen into constitutional provisions without extreme danger to the commonwealth; that, in other words, they have no place in a Constitution, and, therefore, as will be more fully shown in a subsequent chapter, are not proper subjects for the action of bodies charged with framing Constitutions.

§ 88. The Constitutions framed for the United States, and for its several component States, have all, save two, been written Constitutions; and, in the two States whose Constitutions, as already explained, were originally unwritten, written Constitutions have lately been adopted. Of the whole number of Constitutions thus far framed in the United States, there have been two distinct varieties, namely, those framed for the general gov. ernment, and those framed for the several States. The characteristic differences between these varieties depend upon the extent of the grants of power to them respectively, and upon the modes in which the limits of the several grants are determined. In the two Constitutions of the Union, the Articles of Confederation and the existing federal charter, the sum of the powers granted was comprised in several particular grants, and it was declared that the governments thereby established were confined to the exercise, the former, of powers "expressly delegated," and the latter, of powers "delegated," by that term designating, as it has been construed, express powers, and such as are necessary to carry into effect express powers. In these Constitutions, limitations of the grants of power are involved in the very terms in which they are made, the clear import of the instruments being, without an express declaration to that effect, that no power not affirmatively authorized by them can be exercised. In other words, the governments of the United States delineated in those Constitutions were governments of limited powers, but of powers ranking highest in the political scale, and within the scope of those powers, they were supreme. This is more particularly true of the Federal government than of the Confederation, though substantially so of that also.

§89. To the State governments, on the contrary, were appor

tioned the residuary powers, or most of them, not comprised in the federal grants. Thus, under the Confederation, according to the articles establishing it, each State retained every power, jurisdiction, and right not expressly delegated to the United States; that is, retained the sum total of the residuary powers. When the new Constitution, however, went into effect in 1789, the State governments were vested by the people of the Union with such of the residuary powers only as were not reserved to the latter; which reserved powers were, first, such sovereign powers as are not delegated to the ordinary departments of our governments, as that of amendment; and, secondly, such as, not being delegated to the Federal government, were prohibited to those of the States. Conceiving of the State governments, as we must, whatever the historical fact may be, as erected subsequently to that of the Union, they took all such powers as the people had to give except where the contrary was expressed or from the nature of the case implied. In other words, the State governments were made governments of general powers, except when limited by the principles of morality or by the terms of the Federal Constitution.

§ 90. The Federal Constitution being designed particularly to delineate the structure and powers of the Federal government, it touches upon those of the States only so far as they are related to that of the Union, and that with a view to prevent collisions. It therefore deals in this respect only in prohibitions to the States. The State constitutions, on the other hand, contain affirmative grants of power, and the mode of making them is to give to their governments powers, as of legislation, in general terms, and afterwards to limit those powers, if deemed desirable, by express provisions. Within the general domain allotted to the States, then, whatever any government can of right do, a State government can do. The government of the Union, on the other hand, though permitted a discretion as to modes of carrying into effect its granted powers, can do only what it is affirmatively authorized to do finding itself hedged in from the general mass of governmental powers, while those of the States are free to

1 The words of the 10th amendment are: "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," not to the people of the States, but to the people of the Union, who make the grant.

STATE CONSTITUTIONS PART OF CONSTITUTION OF UNITED STATES. 87 expatiate at large, save where powers are hedged in from them.

§ 91. These peculiarities of structure and function give rise to special rules of construction, depending on the differences mentioned. Thus, although within the sphere of its acknowledged powers, the general government is entitled to all liberal intendments, still, in determining that sphere, it is a presumption of law that a power does not belong to it, unless it be expressly granted, or be necessary, in a legal sense, to carry into effect some power expressly granted. This follows from the fact that it is a government of enumerated powers. Within the sphere of their powers, on the other hand, while the States are entitled to liberal intendments and to complete dominion, save where some of their powers are concurrent with those of the government of the Union, the presumption, in determining that sphere, is, that a power belongs to them if the contrary do not appear by a fair construction of their own Constitutions and that of the United States. This results from the fact that they are vested with all the powers not granted to the general government nor reserved to the people.

§ 92. And here I may remark that the Constitution of the United States is a part of the Constitution of each State, whether referred to in it or not, and that the Constitutions of all the States form a part of the Constitution of the United States. An aggregation of all these constitutional instruments would be precisely the same in principle as a single Constitution, which, framed by the people of the Union, should define the powers of the general government, and then by specific provisions erect the separate governments of the States, with all their existing attributions and limitations of power. There is not a particle of question that the people of the United States could have thus framed their Constitution, had it been thought advisable, or that they could still-whether regularly or not is another question-melt the thirty odd Constitutions into a single one. To do the latter, undoubtedly they must first recall the power, conceded by the existing Constitution to the people of the several States, to frame, each in a quasi sovereign capacity, its own Constitution. But this, if they are the sovereign, they unquestionably have, if not the legal competence, at least the physical ability to do; or they

may even, as we have seen, under like conditions, abolish the States, as distinct political organizations.1

§ 93. It follows from the principles above announced, regulating the distribution of powers to the Federal and State governments, that they are both really governments of limited jurisdiction; and that they are equally required to confine themselves to the exercise of granted powers. Hence it would seem to follow that they are equal to each other. If it were objected to this conclusion, that the rules of construction just explained indicate a superiority of the powers appropriated to the States, in point of breadth or scope, it may be replied, that, while that is true, those powers are of a grade far less exalted than those apportioned to the general government. On the whole, laying out of view all positive provisions subordinating either to the other, the two systems of government, State and Federal, save, perhaps, in notoriety or éclat abroad, must be pronounced equal. But, when reference is made to the Federal Constitution, it is found that a subordination is established by positive regulation. Article VI. declares that "this Constitution and the laws 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;" to which is added a provision that all legislative, executive, and judicial officers of both Federal and State governments "shall be bound by oath or affirmation to support this Constitution." From these clauses, it is evident the government of the Union is made, in some of its operations, to be supreme over those of the States. As each of the two is of course absolute within the field appropriated to itself, the supremacy referred to must relate to the exercise of powers not recognized as absolutely belonging to either, but such as are denominated concurrent, or as lie on the boundary between the two, and respecting which there may be doubts to which government they belong. Thus, it would be wrong to say that the Federal government is supreme over those of the States in the matter of declaring war, for that power belongs exclusively to the general government. So it would be improper to say of a State that it is supreme over the general government, in the exercise of a power to which the latter can make no pretence, but 1 See ante, §§ 56-58.