publican members against aristocratic and monarchical innovations.1

So far as a particular consideration of the foregoing prohibitions falls within the design of our present work, it will be more convenient to treat of them hereafter, especially as such of them. as are designed for the protection of rights of persons or property are usually repeated in the bills of rights contained in the State constitutions.

Where powers are conferred upon the general government, the exercise of the same powers by the States is impliedly prohibited, wherever the intent of the grant to the national government might be defeated by such exercise. On this ground it is held that, the States cannot tax the agencies or loans of the general government; since the power to tax, if possessed by the States in regard to these objects, might be so exercised as to altogether destroy such agencies or destroy the national credit. And where, by the national Constitution, jurisdiction is given to the national courts with a view to the more efficient and harmonious working of the system organized under it, it is competent for Congress in its wisdom to make that jurisdiction exclusive of the State courts. some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they conflict. The States may legislate on the subject of bankruptcy, if there be no law of Congress conflicting therewith. State laws for organizing and disciplining the militia are valid except as they may conflict with national legislation;5 and the States may constitutionally provide for punishing the counterfeiting of coin and the passing of counterfeit money, since these acts are offences against the State, notwithstanding they may be offences against the nation also.

Federalist, Nos. 43 and 84.

On

M'Culloch v. Maryland, 4 Wheat. 316, 427; Weston v. Charleston, 2 Pet. 449. And see chapter on taxation, post.

Martin v. Hunter's Lessee, 1 Wheat. 334; The Moses Taylor v. Hammons, 4 Wal. 411. The Ad. Hine v. Trevor, Ibid. 555. And see note to these cases in Western Jurist, vol. 1, 241.

Sturgis v. Crowninshield, 4 Wheat. 122; McMillan v. McNiell, Ibid. 209. See Chapter IX.

5 Houston v. Moore, 5 Wheat. 1, 51.

Harlan v. People, 1 Doug. Mich. 207.

Fox v. Ohio, 5 How. 410; United States v. Marigold, 9 How. 560. And see Hendrick's case, 5 Leigh, 707; Moore v. People, 14 How. 13.

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. And it is to be observed as a settled rule of construction of the national Constitution, that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned.1

With other rules for the construction of the national Constitution we shall have little occasion to deal. They have been the subject of very elaborate treatises, judicial opinions, and legislative debates, which are familiar not only to the legal profession, but to the public at large. So far as that instrument apportions powers to the national judiciary, it must be understood, for the most part, as simply authorizing Congress to confer jurisdiction to exercise those powers, and not as directly conferring them upon the courts. The Constitution does not, of its own force, give to the national courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential to create courts, and to apportion the jurisdiction among them. The exceptions are of those few cases of which the Constitution .confers jurisdiction upon the Supreme Court by name. And although the courts. of the United States administer the common law in many cases, they do not derive from the common law authority to take cognizance of and punish offences against the government.2

1 Barron v. Mayor of Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 551; Fox v. Ohio, 5 How. 432, 434; Smith v. Maryland, 18 How. 71; Purvear v. Commonwealth, 5 Wal. 475; Bonaparte v. Camden & Amboy Railroad Co., Baldw. 220; James v. Commonwealth, 12 S. & R. 221; Barker v. People, 3 Cow. 686; Colt v. Eves, 12 Conn. 243; Jane v. Commonwealth, 3 Met. (Ky.) 18; Lincoln v. Smith, 27 Vt. 336; Matter of Smith, 10 Wend. 449; State v. Barnett, 3 Kansas, 250; Reed v. Rice, 2 J. J. Marsh. 45.

....

* Demurrer to an indictment for a libel upon the President and Congress. By the Court: "The only question which this case presents is, whether the Circuit Courts can exercise a common law jurisdiction in criminal cases. ... The general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several States: whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constitutional part of these concessions: that power is to be exercised by courts organized for the purpose, and brought

into existence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power that created them, and can be vested with none but what the power ceded to the general government will authorize them to confer. It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the present; it is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those courts as a consequence of their creation." U. S. v. Hudson, 7 Cranch, 32. See U. S. v. Coolidge, 1 Wheat. 415. " It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption." Per McLean, J., Wheaton v. Peters, 8 Pet. 658. As to the adoption of the common law by the States, see Van Nest v. Pacard, 2 Pet. 144, per Story, J.

CHAPTER III.

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS.

THE Constitution of the United States assumes the existence of thirteen distinct State governments, over whose people its authority was to be extended if ratified by conventions chosen for the purpose. Each of these States was exercising the powers of government under some form of written constitution, and that instrument would remain unaffected by the adoption of the national Constitution, except in those particulars in which the two would come in conflict, and then the latter would modify and control the former. But besides this fundamental law, every State had also a body of laws, prescribing the rights, duties, and obligations of persons within its jurisdiction, and establishing those minute rules for all the relations of life which are deemed out of place in the Constitution, andmust be left to the regulation of the ordinary law-making power.

By far the larger and more valuable portion of that body of laws consisted of the common law of England, which had been transplanted in the American wilderness, and which the Colonists, now become an independent nation, had found a shelter of protection during all the long contest with the mother country at length brought to so fortunate a conclusion.

The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of domestic relations, and the acquisition, control, and transfer of property from time immemorial. It was the outgrowth of the habits of thought and action of the people, and was modified from time to time as those habits became modified, and as civilization advanced, and new inventions changed the modes of business. Springing from the very nature of the people themselves, it was obviously the best body of laws to which they were suited, and as they took with them their nature, so they would take with them these laws, whenever they should transfer their domicile from one country to another.

22

FORMATION OF STATE CONSTITUTIONS.

[CH. III. To eulogize the common law is no part of our present purpose. Many of its features were exceedingly harsh and repulsive, and gave unmistakable indications that they had their origin in times of profound ignorance, superstition and barbarism. The feudal system, which was essentially a system of violence, disorder, and rapine,1 fastened many of its maxims upon the common law system, and these maxims are still to be traced, especially in the rules which govern the acquisition, control, and enjoyment of real estate. The criminal code was also marked by cruel and absurd features, some of which have clung with wonderful tenacity, long after even the most stupid could perceive their inconsistency with justice and civilization. But on the whole the system was the best foundation on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law that it recognized the worth, and sought specially to protect the rights and the privileges of the individual man. Its maxims were those of a sturdy and independent race, accustomed in an unusual degree to freedom of thought and action, and to a share in the administration of public affairs: arbitrary power and uncontrolled authority were not recognized in its principles. Awe surrounded and majesty clothed the king, but the humblest subject might shut the door of his cottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The system was the opposite of servile; its features implied boldness and independent self-reliance on the part of the people; and if the criminal code was harsh, it at least escaped the inquisitorial system which fastened itself upon criminal procedure in other civilized countries, and has ever been fruitful of injustice, oppression, and terror.

For several hundred years, however, changes had from time to time been made in the common law by means of statutes. The purpose of general statutes originally was mainly declaratory of common-law principles, which, by reason of usurpations and abuses, had come to be of doubtful force, and which therefore

1 "A feudal kingdom was a confederacy of a numerous body, who lived in a state of war against each other, and of rapine towards all mankind, in which the king, according to his ability and vigor, was either a cipher or a tyrant, and a great portion of the people were reduced to personal slavery." Mackintosh, History of England, Chap. III.