it must not be supposed that the powers of the National Government are all expressly delegated.

229. Implied Powers.-Expressed powers are delegated in terms; implied powers by inference and necessity. It would be absurd to speak of the "implied" powers of the State, for implication always goes with delegation. The first seventeen clauses of Section 8, referred to above, convey express grants of power, while the last clause, by authorizing Congress to make all laws that shall be necessary for carrying into effect the foregoing powers, and all others vested by the Constitution in the government of the United States, or any department thereof, plainly recognizes implied powers. But such powers would still exist even if this clause were not in the Constitution, for they are essential to the existence of the Government.

C.-J. Marshall argued in one of his greatest opinions: "We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended; but we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” 1

230. Powers Delegated, Prohibited, Reserved.Viewing the totality of political powers from the standpoint of the Constitution, we see them falling into the following groups: (1.) Powers that are delegated to the Union. (2.) Powers that are prohibited to the Union. (3.) Powers that are prohibited to the States. (4.) Powers that are reserved to the States or to the people. This residue of powers, their original possessors, the States or the people,

1 McCulloch v. Maryland, 4 Wheaton 316.

deal with as they see fit when they frame their constitutions.1

231. Concurrent Powers.-The division of powers accomplished in 1789 by the ratification of the Constitution left a large tract of political territory, so to speak, open to both the Union and the States. Accordingly, the two jurisdictions overlap. In fact, they always overlap unless the jurisdiction of the Nation excludes the jurisdiction of the State. For example, Mr. Justice Story says a reasonable interpretation of the Constitution necessarily leads to the conclusion that the powers granted to Congress are never exclusive of similar powers existing in the States, unless (1) "The Constitution has expressly, in terms, given an exclusive power to Congress ;" or (2) "The exercise of a like power is prohibited to the States;" or (3) "There is a direct repugnancy or incompatibility in the exercise of it by the States."2 Taxation well illustrates this concurrent jurisdiction. The Constitution gives Congress the most ample revenue powers, but it denies to the States only the laying of customs-duties and duties on tonnage. Congress is empowered to levy internal taxes, and the States are not forbidden to do so. The whole field of internal

1Mr. C. G. Tiedeman (“The Unwritten Constitution of the United States," p. 138.) thus illustrates the constitutional provisions in regard to powers.

"Outer Circle represents totality of governmental powers. powers delegated to the United States.

"Circle A

equal powers reserved to the States.

concurrent powers.

powers prohibited to both branches of government.

powers prohibited to the States, but neither prohibited nor

delegated to the United States.

2 Houston v. Moore, 2 Wheaton 259.

taxation is open to the States, as well as to the Union. Generally, however, the States avoid taxes that would overlap those already imposed by Congress, lest property and industry be unduly burdened. In some cases the States have exercised powers until the Nation has seen fit to assume them, as in bankruptcy and authorizing paper-money.

232. Constitutional Presumptions. The student must approach the Union and the States in quite different ways. The presumption changes as we pass from the one to the other. Judge Cooley states the difference in these words:

"To ascertain whether any power assumed by the Government of the United States is rightfully assumed, the Constitution is to be examined in order to see whether expressly or by fair implication the power has been granted."

"To ascertain whether a State rightly exercises a power, we have only to see whether, by the Constitution of the United States, it is conceded to the Union, or by that Constitution or that of the States prohibited to be exercised at all." 1

233. Method of Study.-It is therefore clear that when the American people finally divided the powers of sovereignty, they made the States what may be called their residuary legatees. They delegated the most imposing powers those that constitute sovereignty in the eye of International Law-to the Union, and left the remainder, unless denied in terms or by implication, to their former holders. It is the Nation, therefore, that stands out with boldness upon the political background. It is the Nation that arrests the attention and appeals to the imagination. Accordingly, when a student has made himself familiar with so much of our system as exists and works under his own eyes-which belongs mainly to the State sphere-he should first take up the National Government, leaving the States for later study. The excepted or delegated powers

1 Principles of Constitutional Law, p. 31.

naturally precede the residuary powers. A still further reason for observing this order is, that there are as many State constitutions as there are States, agreeing indeed in their most prominent features, but still differing in important details; while the study of the National Constitution, if intelligently carried on, will not fail to illuminate them all, thus making it possible to dispose of them together within a limited compass of space.

CHAPTER XIII.

THE NATURE OF THE CONSTITUTION.

REFERENCES.

The literature of the present subject is very voluminous. All the text-writers mentioned in references to last chapter treat it directly and the historians indirectly. Clear statements of the different views that have been held, will be found in Professor Alexander Johnston's articles in Lalor's Cyclopædia, bearing the following titles: Congress, Continental; Declaration of Independence; Nation; State Sovereignty; Kentucky Resolutions; Convention, Hartford; Judiciary; Allegiance; Nullification; Secession; Reconstruction. The extreme State Rights view is stated by Calhoun, Works, Vol. I., p. 111. Vol. II., pp. 197, 262, Vol. III., p. 140; by Jefferson Davis, Rise and Fall of the Confederation; and by A. H. Stevens, The War Between the States. Madison's view is stated by himself in The Federalist, No. 89, and in the N. A. Review, October, 1830. For Webster's view, see Works, Vol. III., pp. 270, 448; Chief Justice Marshall's, McCulloch v. The State of Maryland, 4 Wheaton 316; Chief Justice Chase's, Texas v. White, 7 Wallace 700.

The subject of the present chapter has been a source of contention almost from the day that our present government went into operation. The logic of history from the establishment of the English Plantations down to 1787, imposed upon the country a dual form of government, irrespective of the intrinsic merits of such a system. This was universally admitted at the time. "No political dreamer," says C.-J. Marshall, "was ever wild enough to think of breaking down the line which separated the States, and compounding the American people into one mass.' The question before the Federal Convention was not the speculative one relating to the merits of federal government, but rather the practical one of adjustment,— committing certain powers of government to the States and others to the Nation. What was the nature of the adjustment that was reached? This question will now be