Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1844-02-23

$ been the uniform practice in our Government. This
brings the question to very narrow point and in
considering It, will state some general PRINCIPLES
] which, if sustained will settle It.
When power exists in the General Government
, and the same exists in the State Government, each
may exercise the same for ITS purpose. For in
stance: Congress may raise direct tax and so NAV
State; but in such case, each must be for its own
use, and each must act lndependent of the ether. II
power IS granted to Congress, that does not deprive
the State of the exercise of that power unless forbid
den by the Constitutions and the of the pow
rby Congress only suspends the power of the State
10 do any act inconsistent with what Congress has
done.-(Sturgis Us. Crowninshied, Wheaton, 1872,
Such is the OF bankrup laws put in the majority
report.-Q2 Wheaton, 2l3)
There is another entire class of cases in the Consti.
tuition speak OF that class where there is granted
power to the States to be exercised under the drec-
fion superrision, or control Of Congress- There are
several such grants Of power in the Constitution in
various forms Of expression. II has been correctly
decided by tho Supreme Court that State cannot
obtain legislative power from Congress.-(9 Wheat
on, 207 But in relation TO this class of cases, the
State derives its power from the Constitution, but the
authority Of Congress paramount, and so far it
goes, is imperative and in the exercise OF this pow
err Congress has often and early, both implicitly and
directly and explicitly required legislative action by
the State Legislatures, and without which the action
OF Congress would have been incomplete and inope.
ratve in its purpose.
All power exercised bya State Legislature Tar The
State, as sovereign State, is excl.siyelv derived
from the State Constitution. ii it comes from any
olner quarter IS no, power given by the State and
N us exerc' me State Legislature is not the agent of
the tate, hut the agent Of those who granted the
power. In the exercise of all powers granted a
Legislature. in State Constitution, it is sovereign.
and cannot he guided, controlled checked directed
by Congress. unless some Limitation arises from the
United States Constitution.
So too, the powers granted by the United States
Constitution TO Congress, where nothing is said or
clearly implied about Sntc Legislatures is TO be ex-
ercised by Congress; and State Legislatures cannot
direct Congress in such action, nor can Congress
make the State Legislatures their agent, either in
whole or in part to perform such service. Hence, II
has been holden that State cannot derive power Of
legislation from Congress- Hence Congress cannot
make agents Of Stale officers create any duty which
they would be forced to discharge, a. they are not
amenabls to Congress
But when power is blythe Constitution of the
United States conferred on State Legislature sub
ect TO the action of Congress- there the State Legis
aturs does not net as the agent and Legislature Of ito
State, deriving from and exercising its power for the
State under their Constitution but the agent Of the
| United States and, by the very terms Of the grant,
it becomes subject TO the supervision and control of
Congress, and to which control ii should cheerfuy
submit.
| Now look through all the State Constitutions in
the Union, and from which solely the Legislatures
derive their sovereign power, ard You will look in vain
for any power to make any law regulating the ap-
pointing Representatives to Congress, any more than
to appoint foreign ministers. Such power then,
they do not possess the Legislature of sovereign
State 1t is not derived from the Stale but from the
United States Constitution, and by that 10 be
csed, under the direction and control of Congress.
Let US now enquire what has been the action of the
respective Governments in relation to this class of ca
ses. In the enumeration Of the powers OF Congress-
the Constitution says that Congress shall hava power
ito provide for organic ng, arming and disciplInng
the mllltn, and governing such part of them may
he employed in the service OF the United States, re-
serving to the States respectively the appointment OF
the officers. and the authority of the militia
according 10 The discipline prescribed by Congress-"
The militia could not be trained and offcere1 unless
organized and armed, and therefore the whole provi
sion, taken together, is, IN substance that the militia
is under the control of the State, subject the para
mount direction of Congress, except its govern
ment then only when in United States service. lnre-
ation to drming the militia Congress in 1908 passed
an act entitled IAN act making provision for aiming
and equppng the whole body of the militia of the
United States" The frs, section of that act provides
"that the annual sum oftwo hundred thousand dol
lars be- and hereby is appropriated for the purpose of
providing arms and military equipments for the whole
body of the militia of the United States, either by pur
chase or manufacture, by and on account of the Uni
ted States" Thus far no provision existed by which
a single musket would ever reach the militia; and did
Congress, by law, provide any method by which this
could be done without the aid of State legislation.
any law OF their which, in itself would effect il
They might so have done by ap )ntng agents for and
directed mode of distribution but they proceeded
otherwise. by the third section of hat act it is pro-
vded shat all the arms procured in virtue OF this act
this Union and the Territories thereof TO each State
and Territory, respectively, in proper ton to The num-
Der of the effective militia in each State and Territory,
and by each Slate and Territoryto be distributed TO
the militia, under such rules and regulations shall
be by iap prescribed ny THE LEGISLATURE OF EACH
STATE AND 1ERRiroRY. Here then, was a most
clear explicit and direct expression Of the will Of Con-
gress, mandatory on the States. to perfect, and by
legislation to carry out the purpose of Congress- in
relation to subject which the Constitution had en-
trusted to the two Was this treated au>urpation
and the last section roid and the whole but an abor-
ton? No. SIR the State had ALL with great propriety
submitted and performed their duty, and all proceeded
in harmony.
Under this same clause of the Constitution, as to
the militia, the subject OF organization, Congress
took early action. In 1872 Congress passed an act
entitled An act more efeciunlly 10 provide for the
national defence, BY establishing a uniform militia
throughout the United States" Now, sir, did they
proceed to lay off The United States into divisions, brig
ndes, regiments and companies, or describe any ter
rtorv TO compose their beats? Did they make a law
which, by its own force, without the action of State
Legislatures would produce an organization, as they
MIGHT have done3 No, cir, they pursued an entirely
different course and that, too by Congress in full
possession Of NIL the limitations Of their newly created
powers In the first TWO sections Of that act they de-
fine what ci'izcn> shall compose the militia and who
shall be the exempt, how the militia shall be armed
and enrolled. In the third section it is enacted and
commanded "that, within one year after the passing
of this act the militia OF the respective States shall be
arranged into DECISIONS brigddes regiments, and
companies, ASTHE LEGISLATURE OF EACH STATE SHALL
DIRECT; and each dirison, brigade, and regiment
shaN be numbered at III. formation thereof" and
then going on giving explicit directions for the Legs.
a.ure to follow. How can the English language frame
more clear and defnitive expression Of mandatory
language from one body to another, TO proceed to
perfect and carry its will and that too BY egs-
laton, without which the obec, would utterly fail !
And how was this treated in those viruous and pamy
DAYS of our Republic? Did the States or any one
of them, fly in the face Of Congress and conemn their
direction, and treat their law as usurpaton or an
atoronl Did they talk about their sovereign rights
and tell Congress to perform their own drudaery :?
No. sir, no. They better understood the respective
rights Of all and possessed the time the virtue
Of obedience to duties, No madness of party had
then been engendered, which would have given coun-
tenance to INSTRUMENTATION to any thing merely be-
cause that party dsliked it. No. sir all the State
Legislatures proceeded in harmony.
call attention 10 another one of that class of
cases where power is granted 10 the State Legsla-
tureb by the United States Constitution subjec, to Con-
gresslonal control. The Constitution provides that
ench State shall appoint electors Of Pres and Vice
President, Sin such manner as The Legislature shall
direct" but as TO the time Of choosing the electors
and time Of their voting the Legislature subject