The first state constitutions were adopted at a time when there was no established federal government, so that all the powers of government, so far as their exercise was in any way provided for, were distributed among the three departments of the state governments, and this form of constitution has been substantially followed to the present time in the amendment of former constitutions or the making of new ones. But when the people, through their proper representatives, adopted the federal constitution, they thereby restricted the authority of the state governments, so far as powers which had theretofore existed in the state governments were conferred upon the federal government. The power of any branch of a state government consists, therefore, of the general power conferred upon that department by the state constitution, subject to the limitations found in the state constitution itself; and subject also to the implied limitation arising out of the creation and existence of a federal government with the powers delegated to it. But on the other hand a state government does not derive its authority in any way from the federal government, nor are the departments of the state government in any way divisions or subordinate agencies of the corresponding departments of the federal government. The two governments rest upon the same general authority. There is a division of powers of government, therefore, between the state and federal governments, which division was effectuated by the adoption of the federal constitution, creating a national government which should exercise the authority conferred upon it by that instrument. We have then in the United States a curious and original example of divided sovereignty, which results in many theoretical and some practical difficulties in the determination of the respective powers of the state and federal governments. Any apparent conflict in authority, however, is to be settled by consideration of the fact that the adoption of the federal constitution amounted in itself to a restriction of state authority; hence there can be no inconsistency between the exercise of power by the state governments and a like exercise of power by the federal government under the provisions of the federal constitution. Practically, it is to be noticed that the powers given to the federal government are in general only those essential to the existence of such a government and the discharge of functions involving a union of the states and the common interests of the people of the different states; while to the state governments is left such authority as is necessary to the protection of the people of the different states in their personal liberty, their property, and their general welfare.

The relation of persons to each other under the law with reference to their personal and property rights, except so far as the federal constitution contains specific provisions on the subject, is within the jurisdiction of the states. That great body of the law which affects ownership, possession, conveyance, and distribution of property, which determines the status and privileges of those who are subject to the law, and which protects personal and property rights of one person from infringement by another, is the law of the state, and in this sense it has been said that there is no common law of the United States, but that the common law, that is, the unwritten general law which the courts recognize and apply in the absence of any statutory provisions, is deemed to be the law of each state, resting on its general authority, and not on the authority of the United States. General powers of government, involving the protection of personal and property rights, remain in the state, except in so far as by the provisions of the federal constitution they are conferred upon the federal government. Thus the so-called police power, that is, the power to regulate the conduct of persons and the control and management of property, with the general object of securing to each protection against unlawful interference by another, and to protect the public as a whole against injury from unlawful action of its members, is in the state. (See below, § 49.) It is for the state government to regulate the conduct of persons and the control of property so as to prevent injury to the public or to others. As a branch of this general police power, the punishment of crimes is left to the states, except in so far as under express or implied authority, found in the federal constitution, the power to punish particular classes of crimes may have been conferred upon the federal government. (See below, § 52.)

On the other hand, the federal government is given authority to legislate with reference to taxation for national purposes, the relations of the United States to foreign governments, the making of war and peace, the maintenance of an army and navy, the regulation of foreign and interstate commerce, and the government of territory not included within any state. These powers,- and others which are conferred upon the federal government, are such as were deemed necessary by the framers of the constitution in order to enable the federal government to'carry out the purposes for which it was formed. However, while these general purposes may be taken into account in construing the powers given to the federal government by the constitution, it is not left an open question what the powers of that government shall be in order to carry out the general object of its creation; but the powers granted are limited to those which were deemed to be necessary and proper when the federal constitution was adopted, or which have been given to it by subsequent amendments.