On this principle the construction given by this court to the Constitution and laws of the United States is received by all as the true construction; and on the same principle the construction given by the courts of the several States to the legislative acts of those States is received as true, unless they come in conflict with the Constitution, laws, and treaties of the United States." Again, in Shelby v. Guy (11 Wh., 361) the Supreme Court declared: "Nor is it questionable that a fixed and received construction of their respective statute laws in their own courts makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that this admission may at times involve us in seeming inconsistencies, as when States have adopted the same statutes and their courts differ in their construction. Yet that course is necessarily indicated by the duty imposed on us to administer, as between certain individuals, the laws of their respective States according to the best lights we possess of what those laws are." In Green v. Neal (6 Pet., 291) it was held that where a state court had changed its former construction of law, the federal courts, upon a subsequent case coming before them should do likewise and thus keep ever in accord with the latest decisions of the state courts.

There are, however, certain classes of cases in which the federal courts have not held themselves bound to follow state precedents, and have thus built up for themselves what may be called a federal common law as to the subjects concerned. Thus they have followed this practice as to general principles of criminal law,

commercial law, and equity jurisprudence. Also the federal courts upon a few occasions have declined to follow the last decisions of the state courts reversing former decisions, when to do so would have been to render void contracts entered into upon the faith of the first decisions.1

1 Cf. Gelpcke v. Dubuque, 1 Wall., 175, and McCullough v. Virginia, 172 U. S., 102.

CHAPTER VIII

FEDERAL AND STATE POWERS

FROM the control that the Federal Government may constitutionally exercise over the form of the governments of the several States, we now turn to a consideration of the general principles in accordance with which the powers of government are divided between the federal and state governments.

In the American State the totality of governmental powers is divided into the following classes:

1. The powers, the exclusive exercise of which is delegated to the General Government.

2. The powers-commonly called "concurrent"that may be exercised by the General Government, but which, when not so exercised, may be exercised by the individual States.

3. The powers, the exercise of which is prohibited to the General Government.

4. The powers, the exclusive exercise of which is reserved to the several States.

5. The powers, the exercise of which is prohibited to the States.

From the above it will be seen that the powers of the Federal Government are embraced within the first

two classes-the distinction between the two classes being merely that the exercise of the powers of the first class is exclusively vested in the General Government, while those of the second may, in default of federal exercise, be made use of by the States.

Some of the powers granted by the Constitution to the general government are expressly denied to the States. As to the exclusive character of the federal jurisdiction over them there cannot be, of course, any question. It has, however, been often a matter difficult of determination whether or not various of the powers given to the United States, but not expressly made exclusive or denied to the States, are so exclusively subject to federal control that no exercise of them by the States is under any circumstances permissible. Shortly stated, the Supreme Court has guided itself in these cases by the following principle. As regards generally the powers granted to the National Government it has held that there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Any laws thus passed by the States are, however, of course subject to abrogation at any time by the enactment by Congress of laws governing the same subjects.1

1 By the enactment of a federal law a state law governing the same subject is not nullified but merely suspended during the

In the early case of Sturges v. Crowninshield (4) Wh., 122) Chief Justice Marshall, in reference to the matter of bankruptcy, laid down this distinction of which we have been speaking, between the exclusive and concurrent powers of the Federal Government. But it is especially in connection with the subject of Interstate Commerce that the principles governing this distinction have been most carefully worked out. In Houston v. Moore (5 Wh., 1) Justice Johnson said: "The Constitution containing a grant of powers in many instances similar to those already existing in the state governments, and some of those being of vital importance also to state authority and state legislation, it is not to be admitted that the mere grant of such powers in affirmative terms to Congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, etc.; of the second existence of the federal statute. Upon the repeal of the federal statute, the state law again operates without any reënactment by the State.