it. It smacks, rather, of federal omnipotence, which they thought to mix in only in very small and judicious quantities. "From the nature of the case," as Judge Cooley says, "it was impossible that the powers reserved to the States should constitute a restraint upon the increase of federal power, to the extent that was at first expected. The federal government was necessarily made the final judge of its own authority, and the executor of its own will, and any effectual check to the gradual amplification of its jurisdiction must therefore be found in the construction put by those administering it upon the grants of the Constitution, and in their own sense of constitutional obligation. And as the true line of division between federal and state powers has, from the very beginning, been the subject of contention and of honest differences of opinion, it must often happen that to advance and occupy some disputed ground will seem to the party having the power to do so a mere matter of constitutional duty."4
During the early years of the new national government there was, doubtless, much potency in state will; and had federal and state powers then come face to face, before Congress and the President had had time to overcome their first awkwardness and timidity, and to discover the safest walks of their authority and the most effectual means of exercising their power, it is probable that state prerogatives would have prevailed. The central government, as every one remembers, did not at first give promise of a very great career. It had inherited some of the contempt which had attached to the weak Congress of the Confederation. Two of the thirteen States held aloof from the Union until they could be assured of its stability and success; many of the other States had come into it reluctantly, all with a keen sense of sacrifice, and there could not be said to be any very wide-spread or undoubting belief in its ultimate survival. The members of the first Congress, too, came together very tardily, and in no very cordial or confident spirit of coöperation; and after they had assembled they were for many months painfully embarrassed, how and upon what subjects to exercise their new and untried functions. The President was denied formal precedence in dignity by the Governor of New York, and must himself have felt inclined to question the consequence of his official station, when he found that amongst the principal questions with which he had to deal were some which concerned no greater things than petty points of etiquette and ceremonial; as, for example, whether one day in the week would be sufficient to receive visits of compliment, "and what would be said if he were sometimes to be seen at quiet tea-parties."5 But this first weakness of the new government was only a transient phase in its history, and the federal authorities did not invite a direct issue with the States until they had had time to reckon their resources and to learn facility of action. Before Washington left the presidential chair the federal government had been thoroughly organized, and it fast gathered strength and confidence as it addressed itself year after year to the adjustment of foreign relations, to the defense of the western frontiers, and to the maintenance of domestic peace. For twenty-five years it had no chance to think of those questions of internal policy which, in later days, were to tempt it to stretch its constitutional jurisdiction. The establishment of the public credit, the revival of commerce, and the encouragement of industry; the conduct, first, of a heated controversy, and finally of an unequal war with England; the avoidance, first, of too much love, and afterwards of too violent hatred of France; these and other like questions of great pith and moment gave it too much to do to leave it time to think of nice points of constitutional theory affecting its relations with the States.
But still, even in those busy times of international controversy, when the lurid light of the French Revolution outshone all others, and when men's minds were full of those ghosts of '76, which took the shape of British aggressions, and could not be laid by any charm known to diplomacy,—even in those times, busy about other things, there had been premonitions of the unequal contest between state and federal authorities. The purchase of Louisiana had given new form and startling significance to the assertion of national sovereignty, the Alien and Sedition Laws had provoked the plain-spoken and emphatic protests of Kentucky and Virginia, and the Embargo had exasperated New England to threats of secession.
Nor were these open assumptions of questionable prerogatives on the part of the national government the most significant or unequivocal indications of an assured increase of federal power. Hamilton, as Secretary of the Treasury, had taken care at the very beginning to set the national policy in ways which would unavoidably lead to an almost indefinite expansion of the sphere of federal legislation. Sensible of its need of guidance in those matters of financial administration which evidently demanded its immediate attention, the first Congress of the Union promptly put itself under the direction of Hamilton. "It is not a little amusing," says Mr. Lodge, "to note how eagerly Congress, which had been ably and honestly struggling with the revenue, with commerce, and with a thousand details, fettered in all things by the awkwardness inherent in a legislative body, turned for relief to the new secretary."6 His advice was asked and taken in almost everything, and his skill as a party leader made easy many of the more difficult paths of the new government. But no sooner had the powers of that government begun to be exercised under his guidance than they began to grow. In his famous Report on Manufactures were laid the foundations of that system of protective duties which was destined to hang all the industries of the country upon the skirts of the federal power, and to make every trade and craft in the land sensitive to every wind of party that might blow at Washington; and in his equally celebrated Report in favor of the establishment of a National Bank, there was called into requisition, for the first time, that puissant doctrine of the "implied powers" of the Constitution which has ever since been the chief dynamic principle in our constitutional history. "This great doctrine, embodying the principle of liberal construction, was," in the language of Mr. Lodge, "the most formidable weapon in the armory of the Constitution; and when Hamilton grasped it he knew, and his opponents felt, that here was something capable of conferring on the federal government powers of almost any extent."7 It served first as a sanction for the charter of the United States Bank,—an institution which was the central pillar of Hamilton's wonderful financial administration, and around which afterwards, as then, played so many of the lightnings of party strife. But the Bank of the United States, though great, was not the greatest of the creations of that lusty and seductive doctrine. Given out, at length, with the sanction of the federal Supreme Court,8 and containing, as it did, in its manifest character as a doctrine of legislative prerogative, a very vigorous principle of constitutional growth, it quickly constituted Congress the dominant, nay, the irresistible, power of the federal system, relegating some of the chief balances of the Constitution to an insignificant rôle in the "literary theory" of our institutions.
Its effect upon the status of the States in the federal system was several-fold. In the first place, it clearly put the constitutions of the States at a great disadvantage, inasmuch as there was in them no like principle of growth. Their stationary sovereignty could by no means keep pace with the nimble progress of federal influence in the new spheres thus opened up to it. The doctrine of implied powers was evidently both facile and irresistible. It concerned the political discretion of the national legislative power, and could, therefore, elude all obstacles of judicial interference; for the Supreme Court very early declared itself without authority to question the legislature's privilege of determining the nature and extent of its own powers in the choice of means for giving effect to its constitutional prerogatives, and it has long stood as an accepted canon of judicial action, that judges should be very slow to oppose their opinions to the legislative will in cases in which it is not made demonstrably clear that there has been a plain violation of some unquestionable constitutional principle, or some explicit constitutional provision. Of encroachments upon state as well as of encroachments upon federal powers, the federal authorities are, however, in most cases the only, and in all cases the final, judges. The States are absolutely debarred even from any effective defense of their plain prerogatives, because not they, but the national authorities, are commissioned to determine with decisive and unchallenged authoritativeness what state powers shall be recognized in each case of contest or of conflict. In short, one of the privileges which the States have resigned into the hands of the federal government