power — and the former, by a State constituting one of the minority — (at least as far as it relates to the power in controversy) — denying the claim.
Now it is a clear and well-established principle, that the party who claims the right to exercise a power, is bound to make it good, against the party denying the right; and that, if there should be an authority higher than either provided, by which the question between them can be adjusted, he, in such case, has no right to assert his claim on his own authority — but is bound to appeal to the tribunal appointed, according to the forms prescribed, and to establish and assert his right through its authority.
If a principle, so clear and well established, should, in a case like the one supposed, require confirmation — it may be found in the fact, that the powers of the federal government are all enumerated and specified in the constitution — while those belonging to the States embrace the whole residuary mass of powers, not enumerated and specified. Hence, in a conflict of power between the two, the presumption is in favor of the latter, and against the former; and, therefore, it is doubly bound to establish the power in controversy, through the appointed authority, before it can rightfully undertake to exercise it.
But as conclusive as these reasons are, there are others not less so. Among these, it may be stated, that the federal government, being of the party of the majority in such conflicts, may, at pleasure, make the appeal to the amending power; while the State,
