federal jurisdiction, we shall have to pay some attention in the following chapter. The point to be noted here is, that the specific doctrine of these decisions, that the United States has no power of eminent domain save that which is given it by the Constitution in express terms, is to-day overruled. The leading case is that of Kohl v. the United States, decided in 1875, from Justice Strong's decision in which, spoken for the unanimous Court, I quote the following passage:

31

"it has not been seriously contended during the argument, that the United States Government is without power to appropriate lands and other property within the States for its own uses and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. . . . If the right to acquire property for such uses may be made a barren right . . . by the action of a State the government is dependent for its practical existence upon the will of a State. This cannot be That Government (of the United States) is as sovereign within its sphere as the States are within theirs."

The same doctrine is repeated in Cherokee Nation v. the Southern Kansas Railway Company,32 decided in 1890, and in Luxton v. the North River Bridge Company,33 decided in 1894, in which cases, moreover, it is ruled that Congress may confer its power upon a railroad company.

31

*191 U. S. 367.

82

** 135 U. S. 641. ** 153 U. S. 525.

But the doctrine laid down in Kohl v. the United States does not represent the only nor even, perhaps, the most significant infraction during the period under review of precedents resting upon the State sovereignty basis. More noteworthy, though less fruitful to date of actual result, is the doubt that is cast by the decision in ex parte Siebold 3 upon the important precedents of Prigg v. Pennsylvania and Kentucky v. Dennison.38

66

66

35

In both these cases the same point was at issue, namely, the right of the United States as a necessary and proper measure in the carrying out of its enumerated powers to control the organs of State government. Of the original view upon this point there can be little question. On the one hand, as Marshall put it in McCulloch v. Maryland, no trace is to be found in the Constitution of an intention to create a dependence of the Federal Government on the governments of the States for the execution of the great powers assigned to it"; but on the other hand, this circumstance was never thought to infer a correlative independence on the part of the State governments and their various agencies of all control by the United States. Indeed quite the contrary seems to have been the case. Thus not only does the Constitution require an oath of fidelity from State officers as well as from United States officers; but, as was pointed out in Chapter III, it was the earnest desire of the champions of State 84 100 U. S. 371. 35 16 Pet. 539. 3o 24 How. 66.

rights themselves on the floor of the Convention, that the General Government should not establish inferior courts at all, but should use the State courts as its courts of first instance in all cases. Moreover, this point of view was deliberately met, to a degree, by the Judiciary Act of 1789. Twenty-five years later, however, the constitutionality of this act was challenged by the apostles of State sovereignty at the very point where the State jurisdiction had been most carefully preserved. And how was that challenge met? We have just quoted Chief Justice Marshall's words: in effecting its objects, the National Government can "legitimately control all individuals or governments within the American territory. . .. These States are constituent parts of the United States. for some purposes sov

ereign, for some purposes subordinate."

Equally striking, however, with the Judiciary Act in this connection are certain other enactments of early Congresses. Thus State courts were authorized to entertain proceedings by the United States itself, to enforce penalties and forfeitures under the revenue laws, and to hear allegations, and take proofs, if application were made for the remission of such forfeitures.37 Again, pursuant of the same idea of treating the State governments as available to the National Government for certain administrative purposes, the act of 1793 intrusted the rendition

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* J. Field, in ex parte Clark (dissenting), 100 U. S. 399,

of fugitive slaves in part to national officials and in part to State officials, and the rendition of fugitives from justice, from one State into another, entirely to the State executives.

But it was exactly in connection with the provisions of the Act of 1793 with reference to the rendition of fugitive slaves that the early point of view was first decisively set at naught; and in Prigg v. Pennsylvania that act, so far as it assumed to control and direct State officers, was pronounced unconstitutional upon the basis of the following doctrine, stated in the words of Justice Story: "The National Government, in the absence of all positive provisions to the contrary, is bound, through its own departments . . . to carry into effect all the rights and duties imposed upon it by the Constitution." True, State officers and State agents might be employed, but always under such conditions as the States might severally attach to their acting, and without legal responsibility to the national authorities. This was in 1842. In 1861, just previous to the outbreak of war, the Court afforded great momentary satisfaction to the secessionists by its further application of the same general principles in Kentucky v. Dennison. In this case the Governor of Ohio having refused upon a proper demand to surrender a fugitive from justice from Kentucky, the Governor of the latter State applied to the Supreme Court for a mandamus to compel the performance of what the Act of 1793 designated a

"duty." The Court refused the writ. "We think it clear," it said, "that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it."

And thus the law stood until 1879, when, by the above mentioned decision in ex parte Siebold, a long step was taken by way of return to the earlier doctrine. In this case, it was ruled that Congress, by virtue of its power under Article I, section 4, of the Constitution, had the right to make it a penal offense against the United States for any State officer of election, at an election held for a representative in Congress, to neglect to perform, or to violate, any duty in regard to such election, whether required by a law of the State or of the United States. The proposition upon which those opposed to the power of Congress in the premises relied was, that if Congress assumed to regulate the subject at all, it must regulate it exclusively and act entirely through national officials. Said Justice Bradley, speaking for the Court:

"As a general rule, it is no doubt expedient and wise that the operations of the State and National Governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of State sovereignty."