New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1853-08-05
CONFLICT BETWEEN ST.ATE MI
FEDER.qL TRIBUN.4LS EX.4MLNED

reclamation of fugitive slaves, is necessarily ex-
elusive in Congress and the same power cannot
be constitutionally exercised by the States. The
exercise of the power as claimed by the State
Courts of Pennsylvania, to arrest the proceed
ings of tribunal created by Congress, is totally
contradictory, and repugnant to the power
granted 20 the Congress of the United States
by the Constitution
This being the policy of the General Govern
ment, is not the assumption of the power by the
States at war with the authority conferred on
the Federal Government What ayails it that
the National Government, in the exercise of that
portion of its power which embraces this sub
ject, if the State tribunals may Immediately
negative the action of the tribunals of the FEEDER
al Government If thep power to reclaim fugitive
slaves remains in the States the grant of power
to the Federal Government is nugatory and
vain; and it would be in the power OF any State
Court to subvert the adjudications of the agents
of the Federal Government upon a subject adj
mitted to be within their appropriate action,
and to have been clearly and necessarily inclu-
ded in their constitutional grant of power
The power of reclaiming fugitive slaves, from
exercised both by the States and the General
Government. 1t must belong exclusively, to
the one or the other. 1t is the power of deciding
the very delicate question, whether the fugitive
demanded ought or ought not to be surrendered
Now it is very evident the tribunals Of the Fed
eral Government and of the States, may not
always agree on this subject. The decision of
the State tribunals might be averse to the de-
cision of the Federal Courts, and necessarily an
infringement of the Constitution of the United
States.
In such a case it has been held, that al
though there is no prohibition upon the States,
yet the terms of the grant, by necessary con-
struction, imply it because a provision that
one Government shall exercise exclusive power,
is tantamount to a declaration that no other
shall; for ifany other could, it would cease to
be exclusive; and such declaration is there
fore, in effect, prohibition. Here too, then,
any action on the part of State upon a sub
jeet thus exclusively granted to the Federal
Government, would be repugnant to the Consti-
tuition, operating by its own intrinsic force
The second class of constitutional provisions
is where there is no express prohibition on the
States. Where there was no prohibition to the
States, the exercise of such power on their
part is inconsistent with the powers upon the
same subject conferred on the United States
1t is admitted, that an affirmative grant of
power to the General Government is not Of itself
a prohibition Of the same power to the States
and that there are subjects over which the Fed
eral and State Governments exercise concurrent
jurisdiction
That law of Congress must be paramount,
from necessity, to avoid the confusion of ad-
verse and conflicting legislation. So far as the
States are concerned, the power, when thus
exercised, is then exhausted This is the rule
as we understand it, settled by authority, in
regard to the construction of the concurrent
power of legislation in the States, and which is
conceded to be binding upon the State tribunals
on questions arising under the Constitution and
laws of the United States. This principle is un-
doubtedly essential to peace and harmony in the
action of the two Governments
The doctrine distinctly maintained is, that all
police laws are constitutional unless in conflict
with some law of the United States. 1t is not
legislation upon the same subject, or every
seeming conflict, that amounts to unconstitu- |
tlonal collision. The rule applicable to COLI |
sion is laid down with some distinctness in |
Story's Com, 432 Sc In cases Of implied limi-
tations or prohibition, it is not sufficient to
show possible or potential inconvenience. |
There must be plain incompatibility, direct
repngnaney, or an extreme potential inconye-
nlence, leading to the same result
When we speak of concurrent powers, we
mean when both can do the same thing but ii
is contended, that when the two powers under
discussion were confined to their proper sphere,
not only the State authority could not do what
could be done by Congress, but the reverse is
true; that is, that they never are nor can be
concurrent powers. 1t is not a concurrent pow
er. A concurrent power excludes the idea of a
dependant power. Every concurrent or other
power in a State is subject, in its exercise, to
this limitation, that in the event of collision
the law of the State must yield to the law Of
Congress eonstitutionally enacted
In the language of the Supreme Court, in the
case of Sturges Us. Crowninshield, Wheat 1876,
1T is not the mere existence of the power, but
its exercise, which is incompatible with the ex-
ercise of the same power by the States But
In the same case another principle is stated
which is equally sound, and which is directly
applicable to the point under discussion that is
to say, that it never has been supposed that the
concurrent power of State legislation extended
to every possible case in which its exercise had
not been prohibited. And that . whenever the
terms in which power is granted to Congress,
or the nature of the power requires that it
should be exercised exclusively by Congress. the
subject is as completely taken from the State
Legislatures as if they had been expressly for
hidden to act on it," This is the character of
the power in question.
All powers Of the States as sovereign States,
must De subject to the limitations expressed
IN the United States Constitution. nor can
they any more be permitted to overstep such
limitations OF power by the exercise of one
branch of sovereignty than another What !.
forbidden to them, and what they cannot a. i;
rectly, they should not be permitted 10 do ~.
color, pretence, or oblique indirection,
In the Black bird Creek Marsh COMPANY. tho
Court held that State law was not invalid
merely because it made regulations of com.
merce, but that its invalidity depended upon it,
repugnancy to the law Of Congress, passed il
pursuance of the power granted. r. Peters
245; II ibid, 1872; IA ibid, 579; Is ibid.
If Congress has the power 10 regulate a sub
ject matter, State cannot interfere to oppos,
mr. impa1a s1,ch rap,lpt inr n