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but what character they now sustain in respect to that government, in what relation they have been placed by an authority which all must allow to be competent, the sovereign people of each state. It is material to observe, that in the present constitution, which suceeded the confederation, the article by which each state retained its sovereignty is wbolly omitted, and that the omission was made from a full and experimental conviction that such retention of independent sovereignty by the several states was incompatible with any national union of the whole, and with any efficient national government. This is elearly expressed by the general convention in their report to congress. " It is” say they, “obviously impossible in this federal government of these states, to secure all rights of independent sovereignty to eacb, and yet provide for the interest and safety of all.” Indeed, neither the term sovereign and independent,or the word sovereign is to be found in the constitution. The term seems to have been purposely avoided by the framers of that instrument, and that perhaps, because they considered it not applicable under our institutions, to the powers and to the relative situation of the general and state governments, in that absolute, sense in which, as we have seen, it has been used by former political writers and jurists. They might, therefore, deem it safer to enumerate the powers delegated to the general government with those withheld or limited on the one hand, and the powers limited, modified, or prohibited to the state governments on the other, without expressing the result by a term or terms, which might lead to an erroneous or doubtful construction.
Sovereignty, as before observed, when applied to states or nations, in relation to each other, means nothing more than independence. A sovereign state, in a political sense,
is state or nation in the free and uncontrolled possession and exercise of self-government, a right of making war and peace, and entering into treaties of amity, alliance, and commerce, as it shall judge conducive to its own interest. There is, in this sense of the term, no idea of supremacy, but simply of national independence.
The sovereignty of a nation, in another sense, embraces, also the internal or municipal government, and excludes all
interference, all control of its citizens or subjects, by a foreign power; and in governments of a simple form, this sovereignty is denominated the supreme power of the state.
The opinion formerly entertained, as has been shewn, that the sovereignty of a state was a sort of indivisible escence, a power absolute, uncontrolled and uncontrollable, has been corrected in modern times. Experience has proved that it is capable of division; that under a general superintending power, there may be, indeed, in all free institutions there must be a division of the sovereignty, or rather of the powers of which it consists among the several departments, each exercising its allotted portion, in a certain degree of independence, and yet those powers so adjusted in the exercise, that all shall conspire in their subordinate spheres to the same end, and harmoneously effect the entire government of the state. Of this, a complete example is to be found in our institutions, and those of some other nations, in a division of the powers of government into the legislative, executive, and judicial, vested in separate and distinct departments. We have another conspicuous example, in the division and distribution of powers between the national government, and the several states of the union ;-a subject, which it is necessary should be explained, and fully understood. This division consists in the sovereignty resulting from the powers delegated to the general government by the constitution of the United States, and the sovereignty resulting from the powers retained by the several states. The United States as a nation, are sovereign and independent. That sovereignty results from the powers delegated by the constitution, and is vested in the general government. In all the relations with foreign powers, and intercourse with independent nations, that sovereignty is absolute and independent, in the sense of the law of nations, which places all sovereign states on the ground of equality ; but in the relations of that government to the people and to the state governments, it is a limited sovereignty ; and though its laws are declared to be supreme, they are supreme only within the limits prescribed by the constitution. On the other hand, the several states, as the result of the powers retained, may with propriety be denominated sovereign, but not independent. Each state possesses a portion of sovereign power, but it is limited and adapted to the superior sovereignty of the national government. The sovereignty of the several states is local, confined in each within its local limits. It is wholly municipal in its character, and embraces those local concerns and interests, which were considered as not having a national character, or not to affect the interest of all as forming a national whole. Thus, while the general government is vested with supreme power in all matters that involve the common interest and welfare of the union in a national view, the state governments within their respective jurisdictions, retain as sovereign, all those powers, which in their due administration most endear the social state to mankind. To them it belongs to protect their respective citizens in the secure enjoyment of all their personal rights ; to regulate the mode of acquiring, and to secure the acquisitions of property, to cherish and protect all the social relations; to provide for an equal administration of justice'; to provide the means of education, and facilitate the diffusion of useful knowledge ; to animadvert upon morals, and to provide for the prevention and punishment of all those crimes, that attack private property, or in any way violate the rights, or disturb the peace of community. Each of the states may be said to be independent in the exercise of the municipal sovereignty, in one sense, that no power external to the state has a right to interfere or to control it, while exercised within the limits prescribed, but not in the sense of sovereign and independent, because the general government has, among other things, the power and right to execute its laws on the citizens of the sev. eral states within and throughout the limits of their respective jurisdictions; and because certain limits are set to that sovereignty, as it relates to the general government, which the state governments are forbidden to exceed, and of which the constitution of the United States has made the former the sole guardians, and the sole judges of the excess. What is conclusive upon this point, if any thing can be conclusive, is that the right of final decision in all cases arising under the constitution and laws of the United States, and treaties made under its authority, in all controversies to which the United States shall be a party, or in which a state shall be a party, is vested
in the general government, through the proper department, the judiciary of the United States ; nor is there to be found a single instance, in which a state is by the constitution permitted the right to judge finally for itself in any question relating to the powers and acts of that government; a right incident to the sovereignty and independence of any state, and without which, no such independence can exist. As we have
seen, the constitution and laws of the United States are declared to be the supreme law of the land, and binding on all the judges in every state, any thing in the constitution or laws of any state to the contrary notwithstanding; and all the functionaries and officers of the several states, legislative, executive, and judicial, are required to be bound by oath to support that constitution, that is, to support the government in all its constitutional acts, in all its departments. Each and every state with the several governments is, therefore, bound by the same solemn obligation,-a state or government without functionaries by whom it is administered is a mere abstract entity, incapable of energy, incapable of action.-It is a self-evident truth, that the obligation of a state or government is identical with that of its functionaries. The several states are, therefore, bound by all the constitutional acts of the general government ; but that government is not bound in the same sense by the laws of any state, nor of every state, should all enact the same thing. I am here speaking of the ordinary power of legislation, which belongs to the state governments, not of the extraordinary power of legislation which belongs to the sovereign people, and is employed solely in enacting, altering, and amending the constitution of the government, and has no bearing on the present subject. I say, the general government is not bound by a state law.—That government is, indeed bound to respect the laws of the several states, not transcending the limits of their municipal sovereignty, as established by their respective constitutions and the constitution of the United
The United States, that is, the national government, are bound to guaranty to every state in the union, a republican form of government, and to protect each of them against invasion, and on application of the legislature or of the executive as the case may be, against domestic violence. In this is
expressed the obligation of the general government as wielding the national force, to protect the several parts of the united whole, in the peaceable enjoyment of their respective rights, privileges, and immunities. It is not the obligation merely, ofan equal, of an ally, but of a superior, of the national government, and places that government in the situation and grade, whatever that grade may be, of guardian and protector of the several states. The same superiority is clearly implied in the prohibitions to the several states to exercise certain, powers or to exercise them without the consent of congress.
It is true, the consent is a permissive, not a compulsory act, but it is compulsory on the states, not to act without the consent.
I know that all subordination of the states to the general government is denied by some, and among others, by Mr. Jefferson, whose opinions stand high in the scale of authority. He has said, “ with respect to our state and federal government, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter ; but this is not the case. They are co-ordinate departments of one simple and integral whole ; to the state governments are reserved all legislation and administration in affairs which concerns their own citizens only ; and to the federal government is given whatever concerns foreigners, or the citizens of other states. The one is the foreign, the other the domestic branch of the same government, neither having control over the other, but within its own department. There are one or two exceptions to this partition of power.”*
If, however, we include all the cases which belong as well to the municipal as to the national sovereignty, which we certainly ought, and in which either by expressions in the grant, or by prohibitions to the states, the powers are exclusively vested in the general government, the exceptions are considerably more numerous than is here represented, and some of them very important. It is true that the general, and state governments are parts of one integral whole in this sense, that they embrace the whole government of the country, and exercise
* Jefferson's Memoirs, vol. iv. 396.