would conflict with legitimate federal authority.1 On the other hand, the presumption is always against Congress, and to show that it can legislate, some positive grant of power to Congress in the Constitution must be pointed out.2 When the grant is shown, then the Act of Congress has, so long as it remains on the statute book, all the force of the Constitution itself. In some instances the grant of power to to Congress to legislate is auxiliary to a prohibition imposed on the States. This is notably the case as regards the amendments to the Constitution, passed for the protection of the lately liberated negroes. They interdict the States from either recognizing slavery, or discriminating in any way against any class of citizens; they go even beyond citizens in their care, and declare that "no State shall deny to any person within its jurisdiction the equal protection of the laws." Now, by each of these amendments, Congress is also empowered, which practically means enjoined, to "enforce by appropriate legislation" the prohibitions laid upon the States. Congress has done so, but some of its efforts have been held to go beyond the directions of the amendments, and to be therefore void.s The grant of power has not covered them.

Where the President interferes with a State, he does so either under his duty to give effect to the legislation of Congress, or under the discretionary executive functions

1 Otherwise in the Federal Constitution of Canada. See Note to Chapter XXX.

2 The grant need not, however, be express, for it has frequently been held that a power incidental or instrumental to a power expressly given may be conferred upon Congress by necessary implication. See M'Culloch v. Maryland, 4 Wheat. p. 316, and post, Chapter XXXIII.

3 See the Appendix (by Judge Cooley) to the last edition of Story's Commentaries, and the cases on the three last amendments collected in Desty's Constitution of the United States Annotated.

which the Constitution has entrusted to him. So if any State were to depart from a republican form of government, it would be his duty to bring the fact to the notice of Congress in order that the guarantee of that form contained in the Constitution might be made effective. If an insurrection broke out against the authority of the Union, he would (as in 1861) send Federal troops to suppress it. If there should be rival State governments, each claiming to be legitimate, the President might, especially if Congress were not sitting, recognize and support the one which he deemed regular and constitutional.1

Are these, it may be asked, the only cases in which Federal authority can interfere within the limits of a State to maintain order? Are law and order, i.e. the punishment of crimes and the enforcement of civil rights, left entirely to State authorities? The answer is:

Offences against Federal statutes are justiciable in Federal courts, and punishable under Federal authority. There is no Federal common law of crimes.

Resistance offered to the enforcement of a Federal statute may be suppressed by Federal authority.

be

Attacks on the property of the Federal government may be repelled, and disturbances thence arising may quelled by Federal authority.

The judgments pronounced in civil causes by Federal courts are executed by the officers of these courts.

All other offences and disorders whatsoever are left

1 In 1874-75 a contest having arisen in Louisiana between two governments each claiming to be the legal government of the State, Federal military aid was supplied to one of them by the President and his action was afterwards approved by Congress. It has been doubted, however, whether the case could properly be deemed one of "domestic violence" within the meaning of Art. iv. § 4 of the Constitution.

to be dealt with by the duly constituted authorities of the State, who are, however, entitled in one case to summon the power of the Union to their aid.

This case is that of the breaking out in a State of serious disturbances. The President is bound on the application of the State legislature or executive to quell such disturbances by the armed forces of the Union, or by directing the militia of another State to enter. Thus in 1794 Washington suppressed the so-called Whisky Insurrection in Pennsylvania by the militia of Pennsylvania, New Jersey, Virginia, and Maryland.1 President Grant was obliged to use military force during the troubles which disturbed several of the Southern States after the Civil War; as was President Hayes, during the tumults in Pennsylvania caused by the great railway strikes of 1877. There have, however, been cases, such as the Dorr rebellion in Rhode Island in 1842,2 in which a State has itself suppressed an insurrection against its legitimate government. It is the duty of a State to do so if it can, and to seek Federal aid only in extreme cases, when resistance is formidable.

So far we have been considering the relations of the National government to the States as political communities. Let us now see what are its relations to the individual citizens of these States. They are citizens of the Union as well as of the States, and owe allegiance to both powers. Each power has a right to command

This was

1 See Hildreth's History of the United States, iv. p. 504. the first assertion by arms of the supreme authority of the Union, and produced an enormous effect upon opinion.

2 President Tyler ordered the militia of Connecticut and Massachusetts to be prepared to enter Rhode Island and suppress the rebellion, but the Rhode Island militia proved equal to the occasion and succeeded in suppressing Dorr. Instances of Federal intervention have been very

rare.

their obedience. To which then, in case of conflict, is obedience due?

The right of the State to obedience is wider in the area of matters which it covers. Prima facie, every State law, every order of a competent State authority, binds the citizen, whereas the National government has but a limited power: it can legislate or command only for certain purposes or on certain subjects. But within the limits of its power, its authority is higher than that of the State, and must be obeyed even at the risk of disobeying the State. A recent instance in which a State official suffered for obeying his State where its directions clashed with a provision of the Federal Constitution may set the point in a clear light. A statute of California had committed to the city and county authority of San Francisco the power of making regulations for the management of gaols. This authority had in 1876 passed an ordinance directing that every male imprisoned in the county gaol should "immediately on his arrival have his hair clipped to a uniform length of one inch from the scalp." The sheriff having, under this ordinance, cut off the queue of a Chinese prisoner, Ho Ah Kow, was sued for damages by the prisoner, and the court, holding that the ordinance had been passed with a special view to the injury of the Chinese, who consider the preservation of their queue a matter of religion as well as of honour, and that it operated unequally and oppressively upon them, in contravention of the fourteenth amendment to the Constitution of the United States, declared the ordinance invalid, and gave judgment against the sheriff. Similar

1 Case of Ho Ah Kow v. Matthew Nunan (July 1879), 5 Sawyer, Circuit Court Reports, p. 552. A similar ordinance had been some years before courageously vetoed by Mr. Alvord, then mayor of San Francisco.

subsequent attempts against the Chinese, made under cover of the constitution of California of 1879 and divers statutes passed thereunder, have been defeated by the

courts.

The safe rule for the private citizen may be thus expressed: "Ascertain whether the Federal law is constitutional (i.e. such as Congress has power to pass). If it is, conform your conduct to it at all hazards. If it is not, disregard it, and obey the law of your State." This may seem hard on the private citizen. How shall he settle for himself such a delicate point of law as whether Congress had power to pass a particular statute, seeing that the question may be doubtful and not have come before the courts? But in practice little inconvenience arises, for Congress and the State legislatures have learnt to keep within their respective spheres, and the questions that arise between them are seldom such as need disturb an ordinary man.

The same remarks apply to conflicts between the commands of executive officers of the National government on the one hand, and those of State officials on the other. If the national officer is acting within his constitutional powers, he is entitled to be obeyed in preference to a State official, and conversely, if the State official is within his powers, and the national officer acting in excess of those which the Federal Constitution confers, the State official is to be obeyed.

The limits of judicial power are more difficult of definition. Every citizen can sue and be sued or indicted both in the courts of his State and in the Federal courts, but in some classes of cases the former, in others the latter, is the proper tribunal, while in many it is left to the choice of the parties before which tribunal they will proceed. Sometimes a plaintiff who has