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As examples of the first class, may be men tioned, the "power to borrow money on the credit of the United States." Here the object of the power, (to borrow money for the use of the United States,) and the means of executing it, (by pledging their credit,) have their origin in the Union, and did not previously exist. So as to the power "to establish tribunals inferior to the Supreme Court," the same remark will apply.

Of the second class, the power " to establish an uniform rule of naturalization," is an instance. This power was originally in the States, and was extensively exercised by them, and would now be concurrent, except for another provision in the constitution, that "citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." It is not held to be exclusive, from the use of the term "uniform rule." This Court has held, that the use of an analogous term, "uniform laws," in respect to the associated subject of bankruptcy, does not imply an exclusive power in Congress over that subject." The truc reason why the power of establishing an uniform rule of naturalization is exclusive, must be, that a person becoming a citizen in one State, would thereby become a citizen of another, perhaps even contrary to its laws, and the power thus exercised would operate beyond the limits of the State.

As to concurrent powers: it is highly important

a Chirac v. Chirac, 2 Wheat. Rep. 268, 269.

b. Sturges v. Crowninshield, 4 Wheat. Rep; 193.

to hold all powers concurrent, where it can be done without violating the plain letter of the constitution. All these powers are essential to State sovereignty, and are constantly exercised for the good of the State. These powers can be best exercised by the State, in relation to all its internal concerns, connected with the objects of the power. All powers, therefore,. not expressly exclusive, or clearly exclusive in their nature, ought to be deemed concurrent. All implied powers are, of course, concurrent. It has never yet been contended, that powers implied as necessary and proper to carry into effect an exclusive power, are themselves exclusive. Such a doctrine would deprive the States almost entirely of sovereignty, as these implied powers must inevitably be very numerous, and must embrace a wide field of legislation. So also, all enumerated powers are to be considered concurrent, unless they clearly fall under the head of exclusive: either as being granted, in terms, exclusively to the United States, or as expressly prohibited to the States, or as being exclusive in their nature, as before explained.

A power exclusive in its nature, is said to be repugnant and contradictory to a like power in the States. This repugnancy exists only in cases where a State cannot legislate, in any manner, or under any circumstances, under a given power, without conflicting with some existing act of Congress, or with some provision of the constitution. Thus, it is laid down by the commentators on the constitution, that "the power granted to the Union is exclusive, when the existence of a similar power

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tradictory and repugnant." "Or where an authority is granted to the Union, with which a similar authority in the State would be utterly incompatible." And again: "It is not a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty." These strong expressions show that the repugnancy of power to power must be such, as to produce actual interference and conflict, under all circumstances, and in all cases, in which the power is exercised by the two governments: or, in other words, must be such that the States can pass no law on the subject matter of the power, without contravening the express provisions of the constitution; or without actually interfering with the operation of some statute of Congress. These terms are used by the author of the papers from which they are quoted, to distinguish those cases of absolute rcpugnancy from others, "where the exercise of a concurrent jurisdiction might be productive of occasional interference in the polioy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." The same principle has been adopted by this Court on several occasions."

a The Federalist, No. 32. ~

b Id. No. 82.

c Id. No. 32.

d Id. No. 32.

e McCulloch v. Maryland, 4 Wheat. Rep. 425. Per Marshall, C. J. Houston v. Moore, 5 Wheat. Rep. 49. Per Story J.

It appears, then, that the repugnancy which makes a power exclusive, must be clear, direct, positive, and entire. It cannot be a matter of speculation or theory, but must be practical: not a repugnancy that may arise in some exercise of the power by both governments; but one that must arise, in any exercise of such power, which is attempted by the States. To ascertain, then, whether any given power be concurrent, we must inquire, (1.) Whether it was possessed by the States, previous to the constitution, as appertaining to their sovereignty? (2.) Whether it is granted, in exclusive terms, to the Union? (3.) Whether it is granted to the Union, and prohibited in express terms to the States? (4.) Whether it is exclusive in its nature, either as operating, when exercised by the States, without their territorial limits, and upon other parts of the Union; or as having its origin and creation in the Union itself; or as being so entirely repugnant, that no exercise of it can take place by the States, without actual conflict with the constitution of the Union, in its practical operation and effects.

All concurrent powers may be divided into two classes: (1.) Those where, from their nature, when Congress has acted on the subject matter, the States cannot legislate at all in any degree. (2.) Those where the States may legislate, though Congress has previously legislated on the same subject matter.

The first class includes those instances where any act of Congress covers the whole ground of legislation, and exhausts the subjects on which it

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acts. Such is the power to fix the standard of weights and measures. Here, when the standard of any particular weight or measure is fixed by Congress, the whole power is executed as to that particular; and so far the power of the States is at an end. But, until Congress does this, it cannot be doubted that a State may act on the subject; and if the laws of Congress apply only to some weights and measures, all others are subject to State regulation. Thus, New-York has long had a law to regulate weights and measures, which establishes the English standard for that State, " until Congress shall establish the standard for the United States." So, also, the power to regulate the value of foreign coin. An act fixing the value of any species of coin, necessarily disposes of the whole power as to that species. They are both instances in which, when Congress has acted at all, there immediately arises that entire and absolute repugnancy, and that utter incompatibility, which exclude the States from all power over the subject.

The second class of concurrent powers contains those in which, from their nature, various regulations may be made, without any actual collision in practice. These are, those where the power may be exercised on different subjects; or on the same subject, in different modes; or where the object of the power admits of various independent regulations, which may operate together. In all these cases, the State may legislate, though Congress

a 1 R. L. c. 30. s. 36.