3. The thirteen original states were existing governments when the Constitution was ratified; and, states admitted to the union under the Constitution have as regards the United States and the other states, in all respects in which the effect of that instrument has not been changed by amendment, the same rights, powers, and obligations as the thirteen original states.1 Therefore, in so far as the states are not controlled by the expressed, or implied, restrictions contained in the Constitution of the United States, they may severally exercise all the powers of independent governments.2 The states, though united under the sovereign authority of the Constitution, are, so far as their freedom of action is not controlled by that instrument, foreign to, and independent of each other.3

4. The government of the United States, in its relation to the several states and to the citizens of those states, is one of delegated and limited powers, which are, expressly or by necessary implication, granted by its written Constitution. The Constitution has created a government, divided into three departments, legislative, executive, and judicial. As the chief function of the executive department, apart from its participation in legislation by the exercise of a qualified veto, is that of administering the laws of Congress, and as the primary duty of the judicial department is that of expounding the Constitution and the laws in their application to subject-matters of judicial cognizance, either civil or

1 Pollard v. Hagan, 3 How. 212; Texas v. White, 7 Wall. 700.

2 Amendments to the Constitution, articles IX and x; Martin v. Hunter's Lessee, 1 Wheat. 304, 325; Sturges v. Crowninshield, 4 Wheat. 193; Texas v. White, 7 Wall. 700, 721.

3 Buckner v. Findley, 2 Pet. 586, 590; Rhode Island v. Massachusetts, 12 Pet. 722.

Martin v. Hunter's Lessee, 1 Wheat. 304, 326; Marbury v. Madison, 1 Cr. 137, 176; Briscoe v. Bank of Kentucky, 11 Pet. 317; U.S. v. Harris, 106 U. S. 627; Langford v. U. S., 101 U.S. 34.

criminal, it is obvious, that the powers conferred by the Constitution upon the government of the United States are, in the main, powers of legislation. The powers granted by the Constitution to the government of the United States are either expressed or implied. The expressed powers are those which are specifically stated in the Constitution. The implied powers are those which authorize the use of appropriate means, which are consistent with the letter and spirit of the Constitution, for the accomplishment of legitimate ends, which are not prohibited, and which are within the scope of the Constitution. The powers granted by the Constitution to the United States are subject to certain expressed exceptions, which are contained in the 9th section of article I of the Constitution, and in the first eleven of its amendments.

5. Article VI of the Constitution declares, that "this Constitution and the laws of the United States, which shall be 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; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." By force of this constitutional provision, the government of the United States, as Marshall, C. J., said in McCulloch v. Maryland,2 "though limited in its powers, is supreme within its sphere of action," and, to the extent, and in the exercise, of the powers delegated to it, it is a sovereignty.3

6. The restraints imposed by the Constitution upon

1 Infra, chapter II; Constitution, art. 1, sec. 8; McCulloch v. Maryland, 4 Wheat. 421.

24 Wheat. 316, 405.

3 Alexander Hamilton's argument of 23 February, 1791, as to the constitutionality of a national bank. 3 Lodge's Hamilton's Work, 181; Julliard v. Greenman, 110 U. S. 421.

the states are either expressed or implied. The expressed restraints are those which are specifically stated in the Constitution. The implied restraints are those which result from the express grant by the Constitution of certain powers, whose nature, or the terms of whose grant, require that they should be exclusively exercised by the United States.1 The expressed restraints, are, first, those which affect the relations of the several states to other states, foreign and domestic; and, second, those which have reference to the relations between the states and their citizens, and which limit the exercise by the states of their powers of legislation. The expressed restraints of the first class include the prohibition of treaties, alliances, confederations, agreements, or compacts with another state or with a foreign power; the obligation not to issue letters of marque and reprisal, or to maintain troops or ships of war in times of peace, or to engage in war unless actually invaded or in such imminent danger as will not admit of delay; the requirements that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states, and that fugitives from justice shall be surrendered from one state to another. The expressed restraints of the second class include the prohibition of the grant of titles of nobility, of the coinage of money, of the emission of bills of credit, of the establishment of any legal tender other than gold and silver coin, of the imposition of duties of tonnage and duties on imports or exports, excepting such as may absolutely be necessary for the execution of inspection laws; of

1 Sturges v. Crowninshield, 4 Wheat. 122, 193; Houston v. Moore, 5 id. 49; Gilman v. Philadelphia, 3 Wall. 730.

the rehabilitation of slavery or involuntary servitude, except as a punishment for crime; of the deprivation of any person of life, liberty, or property without due process of law; of the denial to any person of the equal protection of the law; of disfranchisement on account of race, colour, or previous condition of servitude, or for any cause, except for participation in rebellion or other crime, of any of the male inhabitants of a state who are twenty-one years of age and citizens of the United States; of "the election or the appointment to office under a state of any person, who, having previously taken an oath as a member of Congress, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof," and whose disabilities shall not have been removed by a vote of two-thirds of each house of Congress, of the assumption or payment of any debt or obligation incurred in aid of insurrection or rebellion. against the United States, or of any claim for the loss or emancipation of any slave; and of the enactment of bills of attainder, ex post facto laws, or laws impairing the obligation of contracts.

The implied restraints limit the action of the states with regard to taxation, the regulation of commerce, and the personal and property rights of their citizens, and of the citizens of other states.

Many of the restraints are so clear in their terms, and so little require judicial construction, that no question has ever been raised as to their legal effect, but others of those restraints have been frequently subjects of litigation. For the purposes of this treatise it is unnecessary to make further reference to the restraints with regard to the issue of letters

of marque or reprisal, the maintenance of troops or ships of war in time of peace, the engagement in war unless actually invaded or in such imminent danger as will not admit of delay, the grant of titles of nobility, or the coinage of money. As, happily for the peace and prosperity of the country, slavery is of past, and not of present, interest, it is not deemed necessary to refer to that subject further than to note that the XIII Amendment has abolished it in every form, and forbidden its re-establishment.

7. The preamble to the Constitution declares that "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." That the true significance of that declaration may be understood, it must be remembered that the people, whose ratification of the instrument gave it its legal validity were citizens of independent states, which had been theretofore bound together in a confederation, and which were thenceforth to be united under a government which, though limited in its action by the reservation to the several states of all powers not delegated to the United States, should yet be supreme within its defined bounds.1

Therefore, the government created by the Constitution is, to the extent of the powers vested in that government, national in its character, and, by force of the rights reserved to the states, it is, also, a league of sovereign and independent states; and every citizen of each state, while owing allegiance to his state in all matters not controlled by the powers granted to the

1 Martin v. Hunter's Lessee, 1 Wheat. 304, 325.