no powers which are not granted to it by
the Constitution, and the powers actually
granted must be such as are expressly given,
or given by necessary implication."
The same misfortune has attendee the
gentleman in his citation from the decision
of the Court of Appeals in 8 Gill, from
which I will read but a passage:
" It is not necessary at this day to enter
into any examination of the Constitution,
for the purpose of ascertaining the class of
powers surrendered to the General Government,
and those retained by the States.
It is established, that the States still hold
all the powers which they originally pos-
sessed, except such as have been delegated
to the United States, or prohibited to the
States. This is the language of the 10th
article to the Amendments to the Consti-
tution. And it clearly appears from the
papers of the Federalist, that the distin-
guished men. who participated so largely
in the formation and adoption of the Con-
stitution, regarded this as its true interpre-
tation, in the absence of the amendments
referred to. The author of the 32d number
of that work, when discussing the proposed
plan of the Constitution, said: ' As the plan
of the Constitution aims only at a partial
union or consolidation, the State govern-
ments would clearly retain all the rights of
sovereignty which they belore had, and
which were not by that act exclusively
delegated to the United States.' "
I might pile authority upon authority
to the same effect, from the decisions of the
Supreme Court of the United States, and
from the courts of every State in the Union
wherever this subject has been considered
Now what does the instrument itself—
what does the Constitution say? On its
every page, and in almost every section
and line, is written the existence and pow-
ers of the State, and the limited nature and
extent of the powers conferred on the Gren-
eral Government. Its very first section
contains a grant of legislative power
" All legislative powers herein granted," is
the language of the section. The Legislative
Committee of this Convention would write
themselves down fools for posterity if they
should undertake to put into our Constitu-
tion such a clause as that. They will
simply, as they have always done, organize
such a department, and declare that it shall
consist of such and such branches, and then
prohibit it from exercising certain powers
and command it to do certain things, leav-
ing it in its discretion to exercise all the |
vast unlimited field of legislative power,
about which they say nothing.
I need not refer to other clauses of the
Constitution, but I will mention simply
this. This great central government, as
gentlemen call it, could never have had a
local habitation, except for the grant or
cession from particular States, of a place
within which to locate itself. It cannot go
into the State of Maryland to erect a fort,
or an arsenal, or a dock-yard, or any other
needful building, without first going to the
Legislature for their assent,
Mr. STIRLING. Does the gentleman de-
liberately make that statement upon the
question of Constitutional law ?
Mr. MILLER. I do, sir. Not longer
than a few years since, when the General
Government wanted to build an aqueduct to
take water into the city of Washington to
supply the national capital, they came to
the Legislature of the State of Maryland,
and asked its assent Without this assent
this great Government could not go upon
the soil and territory of Maryland and take
from its citizens one foot of land which
they held under the State government,
Mr. STIRLING. They asked the right of
jurisdiction.
Mr. MILLER. They asked the right of
jurisdiction. They asked the right to go
there. Whenever a cession is made, it is
always made with a reservation of concur-
rent jurisdiction in the State.
The doctrine that a law of Congress is
constitutional only, provided the power to
pass it is granted in the Constitution, but
that an act of the Legislature is constitu-
tional unless prohibited ley the Constitu-
tion, is to the same effect. When a law of
Congress comes before the Courts for adju-
dicator, and it is assailed upon the ground
that it is unconstitutional, the onus is upon
those who support the law to show that in
the Constitution of the United States, the
power to pass that law has been specifically
granted to Congress, or granted by neces-
sary implication. If the power to pass it
is not found to be granted expressly, or by
implication, the law is unconstitutional and
void. But when an act of the State Legis-
lature conies before the same tribunals, the
question is just the reverse: it is presumed
to be constitutional unless you first show
that the power to pass it was prohibited by
the Constitution of the State or the United
States, That is the distinction. In the
one case you look for granted powers; in
the other you look for prohibitions of power. |
