utmost freedom and variety of government in internal matters was to be united with perfect unity of government in external relations. The same Constitution which, on the one hand, deprived the States of certain sovereign powers, had, on the other, to confirm them in the possession of powers almost equally sovereign. Added to all this, the framers of the Constitution had no power whatever, except that of persuasion, to enforce the adoption of any system they framed on the States which were to be subject to it. Such a system, therefore, must be devised as would not only conciliate the interests, but also not offend the prejudices of thirteen distinct and almost rival States. Given these conditions, it is a marvel that the problem was solved at all-not that it was solved, as I hold, but imperfectly. If you once realize this idea, that the Constitution of the United States was a compromise, the apparent contradictions contained in it become intelligible.* The It is a curious illustration of this compromise character, which pervades the whole Constitution, that if you seek the staunchest exposition of the centralized aspect of the Constitution in opposition to its federative one, you must look for it in the speeches of men like Patrick Henry or Jefferson, who were opposed to the adoption of the Constitution, on the ground of its interfering with State independence; while, on the other hand, the champions of the Constitution at that day make admissions, in order to render its acceptance palpable, which, taken singly, seem to me almost to establish the State rights' doctrines. (See discussions in Richmond Convention of 1788.) The distinctive character of the Constitution can hardly, to my mind, be better defined than by the words of Mr. Madison, in advo States, broadly speaking, surrendered the rights they had not enjoyed under the old system of Colonial government, and, therefore, attached little value to; while they retained jealously every privilege they had either held, or had conceived themselves entitled to, as Colonies. In the celebrated Declaration of Rights, issued in 1774, there is hardly a single power claimed for the States from the British Government which is not reserved to the different States intact by the Constitution; while the powers exercised by the United States Government are almost identical with those which, by implication, this document concedes to the Imperial authority. In all our Old World communities, the Constitution rests upon the basis of certain rights, ceded either by force or choice, from the Government to the cating its adoption in the Virginia Convention :-"It (the Constitution) is of a mixed nature; it is in a manner unprecedented. . . . In some respects it is a government of a federal nature; in others it is of a consolidated nature." Equally explicit, too, is the language of the Address in which Washington submitted the draft of the Constitution to the consideration of Congress :- "It is," he states, "obviously impracticable, in the federal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances as on the object to be obtained. It is at all times difficult to draw with precision the lines between those rights which must be surrendered and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests." governed. In America the exact converse has taken place, and the Constitution exists by virtue of certain rights ceded by the governed to the Government. With us the presumption, to say the least, is, that any power, not expressly ceded to individuals or corporations, belongs to the Government; while here it is not a matter of presumption, but of certainty, that any undefined power does not belong to the Government, whosoever else it may belong to. According to an amendment to the Constitution, passed very shortly after its formation, "The powers not delegated to the United States "by the Constitution, nor prohibited by it to the States, 66 are reserved to the States respectively, or to the "People."* To show how this system works, one example will suffice. When railroads were introduced, there could have been no constitutional difficulty in England, if it had been thought desirable, in the State undertaking the construction and working of the lines; but it would have been absolutely impossible for the American Government to do this without an alteration in the Constitution. The limits upon the powers of the different States are, indeed, so few in number, that it is worth while to quote them. With regard to foreign relations the restrictions are positive:-"No State," it is provided, "shall enter into * Amendments to Constitution, Art. X. any treaty, alliance, or confederation; grant letters of marque and reprisal; or, without the consent of Congress, keep troops, or ships of war in time of peace; or enter into any agreement or compact with another State, or with a foreign Power; or engage in war unless actually invaded, or in such imminent danger as will not admit of delay.' With respect to internal government the only restrictions actually laid down are "that no State shall coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." Again, no State shall, without the "con"sent of Congress, lay any imposts or duties on im"ports or exports, except what may be absolutely necessary for executing its inspection laws; and the "net produce of all duties and imposts laid by any "State on imports or exports shall be for the use of "the Treasury of the United States; and all such laws "shall be subject to the revision and control of the "Congress."+ These are all the express restrictions on State authority. Besides these, however, there are others implied, if not expressly stated, by the Constitution. The United States guarantee to each State in the Union a repub * Constitution of United States, Art. I. Sect. 10. lican form of government,* and therefore, by implication, no State has the power to establish a form of State government not republican in name at any rate. Moreover, "the citizens of each State are entitled to "all privileges and immunities of citizens in the several "States;" and thus no State can pass laws placing its own citizens on a different footing from those of any other State. Coupled with this restriction is the famous Fugitive Slave Law clause, which asserts, "that no person held to service or labour in one State, "under the laws thereof, escaping into another, shall, "in consequence of any law or regulation therein, be 66 discharged from such service or labour, but shall be "delivered up on claim of the party to whom such "service or labour may be due." 66 Subject, then, to these restrictions, the power of each State within its own jurisdiction is unlimited at least in theory. To what an extent this authority has been wielded in practice, I shall examine in a following chapter. For the present, I wish to speak only of the powers conferred by the States on the Central Government ; but, as a broad principle, it should be borne in mind throughout what I have to say, that just as the capital of Washington was chosen and built to suit the country, instead of the country being arranged to suit the capital, * Constitution of United States, Art. IV. Sect. 4. |