to magnify or minimize the powers granted to the Federal government by the Constitution.

During the last decade or two there has been a growing tendency in the States to call on the national government for many things which are properly within the functions and duties of the States, but which, through the extension of certain powers granted to Congress, may be also brought within the scope of Federal regulation.

This tendency has been so marked, that at times the States seem to have abdicated an important part of their ordinary police powers, and to have sought to escape their natural responsibilities by devolving them upon the general government.

The principles regulating the respective powers of State and Federal government are clearly stated by Mr. Justice Harlan in delivering the judgment of the Supreme Court in a very recent case.

There are, he says, certain fundamental principles which prior decisions, to which he refers in his opinion, recognize, and—

which are not open to dispute. . . . Briefly stated, those principles are: That the Government created by the Federal Constitution is one of enumerated powers, and can not, by any of its agencies, exercise an authority not granted by that instrument, either in express words or by necessary implication; that a power may be implied when necessary to give effect to a power expressly granted; that while the Constitution of the United States and the laws enacted in pursuance thereof, together with any treaties made

under the authority of the United States, constitute the supreme law of the land, a State of the Union may exercise all such governmental authority as is consistent with its own constitution, and not in conflict with the Federal Constitution; that such a power in the State, generally referred to as its police power, is not granted by or derived from the Federal Constitution but exists independently of it, by reason of its never having been surrendered by the State to the General Government; that among the powers of the State, not surrendered-which power therefore remains with the State-is the power to so regulate the relative rights and duties of all within its jurisdiction, so as to guard the public morals, the public safety and the public health, as well as to promote the public convenience and the common good; and that it is with the State to devise the means to be employed to such ends, taking care always that the means devised do not go beyond the necessities of the case, have some real or substantial relation to the objects to be accomplished, and are not inconsistent with its own constitution or the Constitution of the United States.1

That these principles have not been always clearly perceived is illustrated by the history of the State of Ohio-not to mention that of other States.

In the Ordinance of July 13, 1787, providing for the government of the northwestern territory, certain articles were formulated as "articles of compact between the original States and the people and States in the said territory" for the purpose of • House v. Mayes (219 U. S., 270, 281).

"extending the fundamental principles of civil and religious liberty, which form the basis wherein these republics, their laws, and constitution are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments which forever hereafter shall be formed in the said territory." These articles, it was declared, should "forever remain unalterable, unless by common consent.”

These articles in effect embodied those fundamental principles of civil liberty which have been the woof and fabric of Anglo-Saxon institutions since they were first set forth in Magna Charta: principles which were also embodied in the first ten amendments to the Constitution of the United States, adopted in November, 1791.

The Ordinance further provided that—

The navigable waters leading into the Mississippi and St. Lawrence and the carrying places between the same shall be common highways and forever free as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.

Freedom of trade and commerce was a matter of the utmost concern on the part of the great men who framed this Ordinance and the Constitution of the United States, and the Jay treaty of 1794 secured to the subjects of both Great Britain and the United States the right

freely to pass and repass by land or inland navigation into the respective territories and countries of the two parties on the continent of America (the country within the bounds of the Hudson Bay Co. only excepted), and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other.

The Ordinance of 1787 also made provision for the erection of States out of the territory to which it applied, whenever any of such States should have 60,000 free inhabitants, provided the permanent constitution and State government which should be formed "shall be republican and in conformity to the principles contained in these articles."

That portion of the articles which dealt with the government of the territory, provided for the appointment of a court to consist of three judges, with common-law jurisdiction, and whose commissions should continue in force during good behavior. Among the provisions which were declared to be unalterable save by common consent was that

The inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus and of the trial by jury, of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law.

The principles of government embodied in the Federal Constitution, adopted in 1789, were a

distribution of powers among three separate coordinate branches-legislative, executive, and judicial. The legislative power was to be exercised by representatives of the people, and senators representing the States, with the participation of the President, to the extent of recommending legislation and exercising a qualified veto over measures passed in Congress. The executive officers were to be chosen for definite terms, and during such terms were to be free from interference by either of the other branches of government, save when impeached for high crimes or misdemeanors; and the judicial power was to be exercised by judges holding office during good behavior and free from interference or control by the other branches of government. An independent judiciary was regarded by the framers of the Constitution as absolutely essential to the success of the government created by it.

Pursuant to the provisions of the Ordinance, a constitution was adopted, and the State of Ohio was admitted into the Union on March 1, 1803. Those who prepared that constitution had before them as models and guides the Ordinance for the government of the northwestern territory, the Constitution of the United States, and the Jay treaty. But they were unable to grasp the wisdom embodied in those famous documents.

Rufus King, in his sketch of the history of Ohio, says of this constitution: