ers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects.

JOSEPH STORY, Commentaries on the Constitution of the United States. 134, 139, 141.

GLADSTONE (1878)

The students of the future, in this department [political philosophy], will have much to say in the way of comparison between American and British institutions. The relationship between these two is unique in history. It is always interesting to trace and to compare Constitutions, as it is to compare languages; especially in such instances as those of the Greek States and the Italian Republics, or the diversified forms of the feudal system in the different countries of Europe. But there is no parallel in all the records of the world to the case of that prolific British mother, who has sent forth her innumerable children over all the earth to be the founders of half

But,

a-dozen empires. She, with her progeny, may almost claim to constitute a kind of Universal Church in politics. among these children, there is one whose place in the world's eyes and in history is superlative: it is the American Republic. She is the oldest born. She has, taking the capacity of her land into view as well as its mere measurement, a natural base for the greatest continuous empire ever established by

man.

. . And for the political student all over the world, it will be beyond anything curious as well as useful to examine, with what diversities, as well as what resemblances, of apparatus, the two greater branches of a race born to command have been minded, or induced, or constrained to work out, in their sea-severed seats, their political destinies according to the respective laws appointed for them. . .

There were, however, the strongest reasons why America could not grow into a reflection or repetition of England. Passing from a narrow island to a continent almost without bounds, the colonists at once, and vitally, altered their conditions of thought, as well as of existence, in relation to the most important and most operative of all social facts, the possession of the soil. . .

It is to the honour of the British monarchy that, upon the whole, it frankly recognized the facts, and did not pedantically endeavour to constrain by artificial and alien limitations the growth of the infant States. It is a thing to be remembered that the accusations of the colonies in 1776 were entirely levelled at the King actually on the throne, and that a general acquittal was thus given by them to every preceding reign. Their infancy had been upon the whole what their manhood was to be, self-governed and republican. Their Revolution, as we call it, was like ours in the main, a vindication of liberties inherited and possessed. It was a Conservative revolution; and the happy result was that, notwithstanding the sharpness of the collision with the mother-country, and with domestic loyalism, the Thirteen Colonies made provision for their future in conformity, as to all that determined life and manners, with the recollections of their past. The two constitutions of the two countries express indeed rather the differences than the resemblances of the nations. The one is a thing grown, the other a thing made; the one a praxis, the other a poiesis; the one the offspring of tendency and indeterminate time, the other of choice and of an epoch. But, as the British Constitution is the most subtle organism which has proceeded from the womb and the long gestation of progressive history, so the American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man. It has had a century of trial, under the pressure of exigencies caused by an expansion unexampled in point of rapidity and range: and its exemption from formal change, though not entire, has certainly proved the sagacity of the constructors, and the stubborn strength of the fabric.

WILLIAM EWART GLADSTONE, Kin Beyond Sea in Gleanings of Past Years. I. 204-212.

COOLEY (1880)

In America the leading principle of constitutional liberty has from the first been, that the sovereignty reposed in the people; and as the people could not in their collective capacity exercise the powers of government, a written constitution was by general consent agreed upon in each of the States. These constitutions

create departments for the exercise of sovereign powers; prescribe the extent of the exercise, and the methods, and in some particulars forbid that certain powers which would be within the compass of sovereignty shall be exercised at all. . . . The constitution, moreover, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they intrust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental laws except by the method in the constitution agreed upon. The Constitution of the United States creates similar governmental trusts and imposes similar restrictions. . . .

The government created by the Constitution is one of limited and enumerated powers, and the Constitution is the measure and the test of the powers conferred. Whatever is not conferred is withheld, and belongs to the several States or to the people thereof. As a constitutional principle this must result from a consideration of the circumstances under which the Constitution was formed. The States were in existence before, and possessed and exercised nearly all the powers of sovereignty. The Union was in existence, but the Congress which represented it possessed a few powers only conceded to it by the States, and these circumscribed and hampered in a manner to render them of little value. . . . But it was not within the intent of those who formed the Constitution to revolutionize the States, to overturn the presumptions that supported their authority, or to create a new government with uncertain and undefined powers. The purpose, on the contrary, was to perpetuate the States in their integrity, and to strengthen the union in order that they might be perpetuated. . . . By Art. VI. it is declared that "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Upon this it is to be observed:

(1) The Congress of the United States derives its power to legislate from the Constitution, which is the measure of its authority; and any enactment of Congress which is opposed to

its provisions, or is not within the grant of powers made by it, is unconstitutional, and therefore no law, and obligatory upon

no one.

(2) As between a law of the United States made in pursuance of the Constitution and a treaty made under the authority of the United States, if the two in any of their provisions are found to conflict, the one last in point of time must control. For the one as well as the other is an act of sovereignty, differing only in form and in the organ or agency through which the sovereign will is declared. Each alike is the law of the land in its adoption, and the last law must repeal everything that is of no higher authority which is found to come in conflict with it. A treaty may therefore supersede a prior act of Congress; and, on the other hand, an act of Congress may supersede a prior treaty.

(3) A State law must yield to the supreme law, whether expressed in the Constitution of the United States, or in any of its laws or treaties, so far as they come in collision, and whether it be a law in existence when the "supreme law" was adopted or enacted afterward. The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitution of the Union. And not only must "the judges in every State" be bound by such supreme law, but so must the State itself, and every official in all its departments, and every citizen.

(4) The Constitution itself never yields to treaty or enactment; it neither changes with time, nor does it in theory bend to the force of circumstances. It may be amended according to its own permission; but while it stands it is "a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances." Its principles cannot, therefore, be set aside in order to meet the supposed necessities of great crises.

THOMAS M. COOLEY, Constitutional Law. 22-32.

J. C. HURD (1881)

The Revolutionary or Continental Congress, July 4, 1776, declared the "United Colonies" to be free and independent States, "in the name and by the authority of the good people of

these colonies." But the delegates to that Congress, before as well as after the establishment of State governments, had received their appointment from electoral agencies which, in 'their connection with the people whom they claimed to represent, were very different in the various colonies.

In the government, under the Articles of Confederation, the united political people of the States exercised their power for general national purposes, by the intervention of the same organs by which they exercised power for local or State purposes.

In the government, under the Constitution, the same political people, without a revolution, i. e., without any shifting of sovereign power, exercised their powers for national purposes by the immediate action, through special representatives, of the political people of each State.

The possession by this "people of the United States" of the powers exerted by a general government, co-existent with the possession by the same people of other powers, exerted by the State governments, continued, in manner and form more or less distinctly recognized, from the time of the Revolution onward; and, prior to the late civil war, no political people or body politic had appeared, on the territory recognized by foreign nations from time to time as belonging to the United States, in any public international relation, except as one of the United States, or been recognized by foreign nations or by any State of the Union as using or holding in severalty the powers exerted by the general government.

JOHN C. HURD, The Theory of our National Existence. 134, 135.

E. P. SMITH (1889)

In ample season for discussion and action before the adjournment of the first session of the first Congress, Madison presented a selection of the most desirable amendments suggested by the ratifying States. The changes most widely called for sacrificed nothing vital to the success of the new instrument. They rendered the Constitution its own expounder; they concentrated all the tenets of liberty in Magna Charta, the Petition of Right, and the Bill of Rights. The prompt action of the States in ratifying ten out of the twelve amendments submitted