state then retires and lies in abeyance until the occasion for its exercise

shall recur.

Ex p. McNiel, (1871) 13 Wall. 240, 20 U. S. (L. ed.) 624.

Whenever the terms in which a power is granted to Congress, or the nature of the power, required that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act on it. Sturges v. Crowninshield, (1819) 4 Wheat. 193, 4 U. S. (L. ed.) 529.

Federalist. The general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the mem

bers of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular states, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of selfpreservation, to reinstate them in their proper jurisdiction. Madison, in The Federalist, No. XIV.

2. Separate Sovereignties. The perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the states. Under the Articles of Confederation each state retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the states were much restricted, still, all powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively, or to the people. Not only, therefore, can there be no loss of separate and independent autonomy to the states, through their union under the Constitution, but it may be not unreasonably said that the preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states.

Texas v. White, (1868) 7 Wall. 725, 19 U. S. (L. ed.) 227.

"The general government, and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the states within the limits of their powers not granted, or, in the language of the Tenth Amendment, reserved,' are as independent of the general government as that government within its sphere is independent of the states." Bullington v.

Day, (1870) 11 Wall. 124, 20 U. S. (L. ed.) 123.

"Within the sphere allotted to them, the co-ordinate branches of the general government revolve, unobstructed by any legitimate exercise of power by the state governments. The powers exclusively given to the federal government are limitations upon the state authorities. But, with the exception of these limitations, the states are supreme; and their sovereignty can be no more invaded by the action of the general government than the action of the state governments can arrest or obstruct the course of the national

power." Worcester v. Georgia, (1832) 6 Pet. 570. 8 U. S. (L. ed.) 483.

Both the states and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted, with powers greatly restricted, only upon the states. But in many articles of the Constitution the necessary existence of the states, and, within their proper spheres, the independent authority of the states, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. Lane County v. Oregon, (1868) 7 Wall. 76, 19 U. S. (L. ed.) 101.

The people of the United States resident within any state are subject to two governments, one state and the other national; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and

abroad. U. S. v. Cruikshank, (1875) 92 U. S. 550, 23 U. S. (L. ed.) 588.

Federalist. The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations, but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals, and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is intrusted that are possessed and exercised by the governments of the particular states. Hamilton, in The Federalist, No. XVI.

3. Relation to Foreign Countries. While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppres insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizen ship, are all sovereign powers, restricted in their exercise only by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.

Chinese Exclusion Case, (1889) 130 U. S. 604, 9 S. Ct. 623, 32 U. S. (L. ed.) 1068, affirming In re Chae Chan Ping, (1888) 36 Fed. 431.

4. Powers Not Granted Reserved to the States. It is a familiar rule of construction of the Constitution of the Union that the sovereign powers vested in the state governments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted

to the government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely: "The powers not delegated to the United States are reserved to the states respectively, or to the people." The government of the United States, therefore, can claim 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. Bullington v. Day, (1870) 11 Wall. 124, 20 U. S. (L. ed.) 122.

5. Removal of Causes from State Courts. The argument that it is an invasion of the sovereignty of a state to withdraw from its courts into the courts of the general government the trial of prosecutions for alleged offenses against the criminal laws of a state, even though the defense presents a case arising out of an Act of Congress, ignores entirely the dual character of our government. It assumes that the states are completely and in all respects sovereign. But when the national government was formed, some of the attributes of state sovereignty were partially, and others wholly, surrendered and vested in the United States. Over the subjects thus surrendered the sovereignty of the states ceased to extend. Before the adoption of the Constitution, each state had complete and exclusive authority to administer by its courts all the law, civil and criminal, which existed within its borders. Its judicial power extended over every legal question that could arise. But when the Constitution was adopted, a portion of that judicial power became vested in the new government created, and so far as thus vested it was withdrawn from the sovereignty of the state. Now the execution and enforcement of the laws of the United States, and the judicial determination of the questions arising under them, are confided to another sovereign, and to that extent the sovereignty of the state is restricted. The removal of cases arising under those laws, from state into federal courts, is, therefore, no invasion of state domain. On the contrary, a denial of the right of the general government to remove them, to take charge of and try any case arising under the Constitution or laws of the United States, is a denial of the conceded sovereignty of that gov ernment over a subject expressly committed to it.

Tennessee v. Davis, (1879) 100 U. S. 266, 25 U. S. (L. ed.) 648. See also under Art. III., sec. 2.

ARTICLE I, SECTION 1

"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

I. "A CONGRESS OF THE UNITED STATES," 316.
II. DELEGATION OF LEGISLATIVE POWER, 317.

1. In General, 317.

2. Creation of Territorial Legislatures, 317.
3. To Interstate Commerce Commission, 318.
4. To Federal Reserve Board, 318.

5. Subjects Delegated by Acts of Congress, 318.
a. Regulations Making Acts Criminal, 318.

b. Regulating Transportation of Animals and Animal Products,

319.

c. To Find Facts to Determine Operation of Tariff Reciprocity Provisions, 320.

d. To Establish Uniform Standards of Quality of Imports, 320. e. To Prescribe Tests for the Classification of Commodities, 321. f. Regulations Prohibiting Importation of Spirits into Alaska, 321.

g. Regulations to Protect Improvements in Navigable Rivers, 321. h. To Determine Whether a Bridge Is or Will Be an Obstruction to Navigation, 322.

i. To Prescribe Limits of Discharge of Refuse on Tidal Waters,
323.

j. Regulations for Protection of Timber on Public Lands, 324.
k. To Determine Operation of Federal Anti-Trust Act, 324.
1. Granting National Bank Authority to Act as Fiduciary, 324.
m. To Find Facts as to Taxable Adulterations, 325.

n. To Prescribe Marks on Packages of Oleomargarine, 325.
o. Enabling People of a Territory to Provide for Transfer of
Causes on Admission as a State, 325.

p. Regulations for Enrolling Militia, 325.

6. Judicial Notice of Regulations Having the Force of Law, 326. III. POWER TO PASS RETROSPECTIVE STATUTES, 326.

I. "A Congress of the United States "

A joint resolution which provides that the secretary of the interior be directed to suspend the execution of a certain act previously passed in the same session" until the further order of Congress," refers generally to a Congress of the United States, and does not intend only a suspension of the execution of the act during the existence of that session of Congress.

U. S. v. Stockslager, (1889) 129 U. S. 470, 9 S. Ct. 382, 32 U. S. (L. ed.) 785.

II. Delegation of Legislative Power

1. In General. Congress cannot delegate to the courts or to any other tribunals the powers which are strictly and exclusively legislative, but Congress may delegate to others powers which the legislature may rightfully

exercise.

Waymon v. Southard, (1825) 10 Wheat. 42, 6 U. S. (L. ed.) 253. See also Pittsburgh Melting Co. v. Baltimore, etc., R. Co., (1916) 229 Fed. 214.

It is within the power of Congress to vest in executive officers the power to promulgate administrative rules, but this is not deemed to extend to the making of rules to subvert the statute. U. S. v. Grimaud, (1911) 220 U. S. 506, 31 S. Ct. 480, 55 U. S. (L. ed.) 563; Williamson v. U. S., (1908) 207 U. S. 425, 28 S. Ct. 163, 52 U. S. (L. ed.) 278; U. S. v. United Verde Copper Co., (1905) 196 U. S. 207, 25 S. Ct. 222, 49 U. S. (L. ed.) 449; Morrill v. Jones, (1882) 106 U. S. 466, 1 S. Ct. 423, 27 U. S. (L. ed.) 267; St. Louis Independent Packing Co. v. Houston, (1914) 215 Fed. 553, Leecy v. U. S., (1911) 190 Fed. 289.

Congress cannot delegate its power to make a law, but it can make a law to delegate a power to an administrative officer to determine a fact or condition of affairs in regard to which the law makes its own action depend. Dastervignes v. U. S., (1903) 122 Fed. 30. See also St. Louis Merchants' Bridge Terminal R. Co. v. U. S., (1911) 188 Fed. 191.

Subject to the limited power of legislation which by immemorial usage may be delegated to the municipal bodies within

its control, and subject likewise to the peculiar and exceptional delegation of legislative authority which Congress may make to the territorial legislatures of the territories of the United States, it is a fundamental principle of our jurisprudence that the legislative power may not be delegated. And it is equally a fundamental dogma of our law that no more in the domain of the criminal or penal branch of jurisprudence than in any other branch of it can there be a valid delegation of legislative authority. Indeed, the requirement is probably more rigid in criminal than in civil matters that legislation of the character of penal enactment should emanate directly from the ordinary organ of supreme legislative power in the state. Prather v. U. S., (1896) 9 App. Cas. (D. C.) 88.

Delegating powers not strictly legislative. The sovereign power to make national laws is vested in Congress, and it is a settled maxim in constitutional law that this power cannot be delegated. This rule, however, applies only to powers which are strictly and exclusively legislative, and there is a wide range of subjects which may be regulated by direct legislation, and for which general provision may be made and power given to those who are to act under such general provisions to fill up the details. U. S. v. Ormsbee, (1896) 74 Fed. 209.

Congress in dealing with ceded territory, like the Philippine Islands, may delegate legislative authority to such agencies as it may select.

U. S. v. Heinszen, (1907) 206 U. S. 370, 27 S. Ct. 742, 51 U. S. (L. ed.) 1098, 11 Ann. Cas. 688; Dorr v. U. S., (1904)

195 U. S. 138, 24 S. Ct. 808, 49 U. S. (L. ed.) 128, 1 Ann. Cas. 697.

2. Creation of Territorial Legislatures. While Congress may not delegate its general powers of legislation on subjects affecting the whole people, it may, in respect to any distinct district or territory outside of all the states, and therefore within its absolute control, create a legal legislative body and invest it with legal legislative powers.

McCormick v. Western Union Tel. Co., (1897) 79 Fed. 451.