provisions, the most important of which are collected in the marginal notes.

The last provisions that we shall here notice are that the United States shall guarantee to every State a republican form of government, and that no State shall grant any title of nobility. The purpose of these is to protect a Union founded on republican principles, and composed entirely of

[18] republican members against aristocratic and monarchical innovations.1

So far as a particular consideration of the foregoing provisions falls within the plan of our present work, it will be more convenient to treat of them in another place, especially as all of them which have for their object the protection of person or property are usually repeated in the bills of rights contained in the State constitutions, and will require some notice at our hands as a part of State constitutional law.

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 would 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 altogether to destroy such agencies and impair or even 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. On some other subjects State laws may be valid until the power of Congress is exercised, when they become superseded, either wholly, or so far as they are found inconsistent. The States may legislate on the subject of bankruptcy if there be no national bankrupt law. State laws for organizing and disciplining the militia are valid, except as they

1 Federalist, Nos. 43 and 44. It does not fall within our province to discuss these provisions. They have been much discussed in Congress within a few years, but in a party, rather than a judicial, spirit. See Story on Const. (4th ed.) c. 41, and notes, and article in International Review for January, 1875, on "The Guaranty of Order and Republican Government in the States."

p. *482. State laws cannot regulate the sale of patents, the whole subject belonging exclusively to Congress. Ex parte Robinson, 2 Biss. 309.

8 Martin v. Hunter's Lessee, 1 Wheat. 334; The Moses Taylor v. Hammons, 4 Wall. 411; The Ad Hine v. Trevor, 4 Wall. 555. And see note to these cases in the Western Jurist, Vol. I. p. 241.

• Sturgis v. Crowninshield, 4 2 McCulloch v Maryland, 4 Wheat. Wheat. 122; McMillan v. McNeill, 316. 427; Weston v. Charleston, 2 4 Wheat. 209. And see post, pp. Pet. 449. See cases collected, post, * 293-294.

3

may conflict with national legislation; and the States may constitutionally provide for punishing the counterfeiting of coin2 and the passing of counterfeit money, since these acts are offences against the State, notwithstanding they may be offences against the nation also.

*The tenth amendment to the Constitution provides [*19] 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 of this instrument, that being framed for the establishment of a national government, it is a settled rule of construction 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. As illustrations, the sixth and seventh amendments to the Constitution may be mentioned. These constitute a guaranty of the right of trial by jury; but, as they do not mention the States, they are not to be understood as restricting their powers; and the States may, if they choose, provide for the trial of all offences against the States, as well as for the trial of civil cases in the State courts, without the intervention of a jury, or by some different jury from that known to the common law.5

With other rules for the construction of the national Constitu

1 Houston v. Moore, 5 Wheat. 1, 51. 2 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; Jett v. Commonwealth, 18 Grat. 933; Moore v. People, 14 How. 13.

Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet 551; Fox v. Ohio, 5 How. 432; Smith v. Maryland, 18 How. 71; Buonaparte v. Camden & Amboy R. R. 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; North. Mo. R. R. Co. v. Maguire, 49 Mo. 490; Lake Erie, &c. R. R. Co. v. Heath, 9 Ind. 558; Prescott v. State, 19 Ohio, N. s. 184; State v. Shumpert, 1 So. Car. N. s. 85; Commonwealth v. Hitchings, 5 Gray, 482; Bigelow v. Bigelow, 120 Mass. 320; Boyd v. Ellis, 11 Iowa, 97; Cambell v. State, 11 Geo. 353; State v. Carro, 26 La. Ann. 377: Purvear v. Commonwealth, 5 Wall. 475; Twitchell v. Commonwealth, 7 Wall. 321.

Twitchell v. Commonwealth, 7 Wall. 321; Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall 532; Walker v. Sauvinet, 92 U. S Rep. 90; Munn v. Illinois, 94 U. S. Rep. 113..

tion we shall have little occasion to deal. They have been the subject of elaborate treatises, judicial opinions, and legislative debates, which are familiar alike to the legal profession and 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 pass the necessary legislation for the exercise of those powers by the federal courts, and not as directly, of its own force, vesting them with that authority. The Constitution does not, of its own force, give to national courts jurisdiction of the several cases which it enumerates, but an act of Congress is essential, first, to create courts, and afterwards 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 authority from the common law to take cognizance of and punish offences against the government. Offences against the nation are defined and their punishment prescribed by acts of Congress.1

1 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." United States v. Hudson, 7 Cranch, 32. See United States v. Coolidge, 1 Wheat. 415. "It is clear there can be no common law of the United