THE
GENERAL PRINCIPLES
OF
CONSTITUTIONAL LAW
IN THE
UNITED STATES OFAMERICA.
BY
THOMAS M. COOLEY, LL.D.,
AUTHOR OF"CONSTITUTIONAL LIMITATIONS," ETC.
THIRD EDITION BY ANDREW C. McLAUGHLIN, A.M., LL.B.
PROFESSOR OF AMERICAN HISTORY, UNIVERSITY OF MICHIGAN.
BOSTON: LITTLE, BROWN, AND COMPANY.
1898.
Copyright, 1880, BY THOMAS M. COOLEY
Copyright, 1891, 1898, BY LITTLE, BROWN, AND COMPANY.
UNIVERSITY PRESS
JOHN WILSON AND SON, CAMBRIDGE
FOURTH EDITION EDITED BY JON ROLAND
2002
PREFACE.
THE manual which follows has been prepared forthe use of students in law schools and other institutions of learning. Thedesign has been to present succinctly the general principles of constitutionallaw, whether they pertain to the federal system, or to the state system, or toboth. Formerly, the structure of the federal constitutional government was sodistinct from that of the States, that each might usefully be examined anddiscussed apart from the other; but the points of contact and dependence havebeen so largely increased by the recent amendments to the federal Constitutionthat a different course is now deemed advisable. Some general principles ofconstitutional law, which formerly were left exclusively to state protection,are now brought within the purview of the federal power, and any usefulpresentation of them must show the part they take in federal as well as stategovernment. An attempt has been made to do this in the following pages.
The reader will soon discover that mere theories have received verylittle attention, and that the principles stated are those which have beensettled, judicially or otherwise, in the practical working of thegovernment.
THOMAS M. COOLEY.
UNIVERSITY OF MICHIGAN, ANN ARBOR,March, 1880.
PREFACE TO THE SECOND EDITION.
IN the preparation of this edition, such changesin the text and notes of the first edition have been made as have been requiredby the many important decisions upon constitutional questions rendered withinthe last ten years. While the aim has been to keep the book a manual and not tomake it a digest, it will be found, it is hoped, to treat briefly all importantpoints covered by the cases decided up to this time.
ALEXIS C. ANGELL.
DETROIT, August, 1891.
PREFACE TO THE THIRD EDITION.
IN the preparation of the third edition of thiswork, I have been guided and aided by the results of ten years' experience inusing the book with my classes. While I have endeavored to leave the textunaltered as far as seemed consistent with a careful revision, I have madeoccasional alterations, usually by expanding condensed statements, sometimes tocorrect a principle altered or modified by recent decisions. Because of thegreat development of some branches of constitutional law, for example, the lawof interstate commerce, I have found it necessary to rearrange, and in largemeasure rewrite, some pages of the earlier editions. I should have preferred toleave the text as it was written by its distinguished author; but inasmuch asthe book is widely used by students in colleges and law schools, it seemedunwise simply to use footnotes to call attention to new and important decisionswhich have modified the statements of the text. Besides new matter inserted inthe pages of the earlier edition, I have added a chapter dealing with StateConstitutions. This chapter is in large measure a condensation of Chapters III.to VI. of Judge Cooley's Constitutional Limitations, and where possibleI have used the language of that treatise in preference to my own.
ANDREW C. McLAUGHLIN.
UNIVERSITY OF MICHIGAN, ANNARBOR, September, 1893.
PREFACE TO THE FOURTH EDITION.
This digital edition is essentially the third edition, but the Table ofCases has been moved to a position before the Index, and the footnotes willhave been moved to the ends of their chapters, and will have had the pagenumbers prepended, followed by a colon, when complete. As time permits, Iintend to add notes to bring the work up to date.
JON ROLAND
AUSTIN, TEXAS, July 19, 2002
CONTENTS.
Page
TABLE OF CASES ............... xi
CONSTITUTION OF THE UNITED STATES ....... xxxv
CHAPTER I. THE RISE OF THE AMERICAN UNION ........ 3
CHAPTER II. DEFINITIONS AND GENERAL PRINCIPLES ....... 21
CHAPTER III. DISTRIBUTION OF THE POWERS OF GOVERNMENT .... 44
CHAPTER IV. THE POWERS OF CONGRESS ........... 55
SECT. 1. Taxes, Loans, and Debts ....... . 55
SECT. 2 Regulation of Commerce ......... 66
SECT. 3. Naturalization ............ 88
SECT. 4. Bankruptcy ........ .... 89
SECT. 5. The Currency ............ 90
SECT. 6. Bills of Credit ............ 93
SECT. 7 Weights and Measures ........ 94
SECT. 8. Couiiteifeiting ............ 94
SECT. 9. Post Offices and Post Roads . ...... 94
SECT. 10. Copyrights and Patents ......... 95
SECT. 11. Piracies, Felonies on the High Seas, &c.. . . . 97
SECT. 12. War ............... 98
SECT. 13. Ceded Districts ............ 102
SECT. 14. Treason .............. 104
SECT. 15. Non-enumerated and Implied Powers ..... 105
SECT. 16. Restrictions on the Powers of Congress .... 111
CHAPTER V. THE POWERS OF THE FEDERAL EXECUTIVE ...... 114
CHAPTER VI. THE JUDICIAL DEPARTMENT OP THE FEDERAL GOVERNMENT................ 123
CHAPTER VII. CHECKS AND BALANCES IN GOVERNMENT ...... 160
CHAPTER VIII. THE GOVERNMENT OF THE TERRITORIES ....... 183
CHAPTER IX. THE ADMISSION OF NEW STATES ......... 187
CHAPTER X. CONSTITUTIONAL RULES OF STATE COMITY ...... 196
CHAPTER XI. THE GUARANTY OF REPUBLICAN GOVERNMENT TO THE STATES............... . 213
CHAPTER XII. THE AMENDMENTS TO THE CONSTITUTION ...... 218
CHAPTER XIII. CIVIL RIGHTS AND THEIR GUARANTIES ....... 224
SECT. 1. Religious Liberty ........... 224
SECT. 2. Security of the Dwelling, and of the Person and Papers.............. 228
SECT. 3. The Prohibition of Slavery ........ 233
SECT. 4. The Guaranties of Life, Liberty, and Equality . . 240
SECT. 5. Jury Trial in Civil Cases ......... 263
CHAPTER XIV. POLITICAL PRIVILEGES AND THEIR PROTECTIONS .... 268
SECT. 1. Citizenship ............. 268
SECT. 2. Suffrage and Elections .......... 275
SECT. 3. The Right of Assembly and Petition ..... 294
SECT. 4. The Right to keep and bear Arms ..... 297
SECT. 5. Freedom of Speech and of the Press ..... 299
CHAPTER XV. PROTECTIONS TO PERSONS ACCUSED OF CRIME ..... 310
SECT. 1. Legislative Adjudications ........ 310
SECT. 2. Treason: its Definition and Punishment .... 314
SECT. 3. The Writ of Habeas Corpus ........ 315
SECT. 4. Accusations of Crime .......... 317
SECT. 5. Bail ................ 318
SECT. 6. Incidents of the Trial and Punishment .... 319
CHAPTER XVI. PROTECTIONS TO CONTRACTS AND PROPERTY ..... 328
SECT. 1. Laws impairing the Obligation of Contracts . . 328
SECT. 2. Protection to Property ......... 345
SECT. 3. The Eminent Domain .......... 363
CHAPTER XVII. MUNICIPAL CORPORATIONS ........... 378
CHAPTER XVIII. THE FORMATION AND CONSTRUCTION OF STATE CONSTITUTIONS................ 381
INDEX .................. 393
CONSTITUTIONAL LAW.
CHAPTER I. THE RISE OF THE AMERICAN UNION.
Independence. The declaration which severed the politicalconnection between the thirteen American Colonies and the British Crown bearsdate July 4, 1776, and was made by the representatives of the Colonies inGeneral Congress assembled, severally empowered by the respective Colonies tomake it. By this manifesto the representatives declare to the world that"appealing to the Supreme Judge of the world for the rectitude of ourintentions, [we] do, in the name and by authority of the good people of theseColonies, solemnly publish and declare, that these United Colonies are, and ofright ought to be, free and independent States; that they are absolved from allallegiance to the British Crown, and that all political connection between themand the state of Great Britain is, and ought to be, totally dissolved; andthat, as free and independent States, they have full power to levy war,conclude peace, contract alliances, establish commerce, and to do all otheracts and things which independent States may of right do." For more than a yearprevious to this the Colonies had been in the exercise of sovereign powers inhostility to the government of Great Britain, but without a repudiation oftheir allegiance; and they now severally assumed the position of independentStates, limited only by the concessions of authority, mostly tacit, which theymade to their general Congress.
Colonial Legislation. The people of the Colonies hadpreviously exercised a somewhat indefinite power to make their own laws, whichwas very general in some Colonies and greatly restricted in others. In all ofthem the proprietary or royal governor might defeat legislation by refusing hisassent; and in some a council not chosen by the people formed a secondlegislative chamber, whose concurrence was necessary. Colonial legislation wasalso sometimes nullified in England, by the authority of an executive board orcouncil, or by Parliament. Parliament itself also exercised the power to makelaws for the Colonies, and in some cases the power was conceded, though itsexercise in particular instances was complained of as an abuse, while in othercases the power itself was denied. It was conceded that, in all matters of whatmay be denominated imperial concern, the common legislature of the realm mustlegislate for all the dominions of the Crown, and that under this head fell thecommerce of the Colonies with the mother country and with other nations andcolonies. The most severe instances of the exercise of this authority were theNavigation Laws and the laws respecting manufactures in the Colonies, thegeneral purpose of which was to subject the commerce and manufactures of theColonies to such regulations and restraints as should be beneficial to thecommerce and general business interests of the mother country. It was neverdisputed that the Colonies, like all other portions of the British dominions,must necessarily come under the control of the Crown and the Parliament inrespect to all their foreign relations; and, though Indian affairs were for themost part left to the control and management of colonial authorities, yet thesealso were brought under imperial control to any extent that to the homegovernment at any time seemed politic or desirable.
The distinct claim of a right in the Colonies to make their own laws wasnot made until Parliamentary legislation appeared to threaten oppression. Thefirst actual resistance which assumed general importance was when an attemptwas made to impose internal taxation by authority of the imperial Parliament.The proposed taxes were not in themselves a serious burden, and might possiblyhave passed unchallenged, if it had been certain that the tax law was not to bethe herald and the pioneer of others of a different sort, and which would touchthe colonists in particulars in which they were even more sensitive than inrespect to their pecuniary interests. The power which could tax New Englandcould impose an episcopal hierarchy upon it, and the disposition to do this,not only in New England but in New York, had often manifested itself to anextent that excited the most serious alarm. What vital powers of sovereignty inrespect to American concerns might be asserted and exercised, no one couldforesee; and the tax laws were therefore resisted rather as the representativesof unknown dangers than for the burdens they imposed. The government for a timeabstained from pushing its claims to an extreme, but, lest its doing so mightbe understood as an assent to the claims of the Colonies, Parliament, whenrepealing the Stamp Act, which had been rendered abortive by the resistance ofthe people, took occasion to assert an unqualified right to legislate for theColonies on all subjects whatever.[5:1] This claim afterwardsassumed practical form in an attempt to collect a tax on tea imported forconsumption in the Colonies. The levy of the tax was resisted as an invasion ofthe undoubted rights of Englishmen, who, in taking up their home in theColonies, had not lost their right to the protection of the ancient laws of therealm. In Massachusetts and New York cargoes of the taxed tea were destroyed byarmed mobs; in Maryland the importer was compelled to set fire to the vessel bymeans of which he had offended, and in other colonies the taxed commodity waseither refused a landing, or not suffered to be sold after the landing had beeneffected; and the tax law was by these means completelynullified.[6:1]
Liberty a Birthright. The resistance in the casesmentioned, and in some others, was grounded on the claim that the colonists, asEnglishmen, according to the Constitution of the realm, were entitled tocertain rights which the government was attempting to override by the exerciseof tyrannical power.[6:2] The evidence of these rights was to befound in part in certain historical documents which in both England and Americahad been looked upon and revered as the charters of liberty. The first of thesewas
Magna Charta, extorted from King John in 1215, as a restrictionupon what was then an almost unlimited kingly power; the most importantprovision of which was, that "No freeman shall be taken or imprisoned ordisseized or outlawed or banished or anyways destroyed, nor will the King passupon him or commit him to prison, unless by the judgment of his peers or thelaw of the land." In the same instrument is foreshadowed parliamentary taxationin the clause which requires the common consent of the realm to the levy ofunusual burdens.[6:3] Grounded upon this charter the fabric ofconstitutional liberty was slowly and patiently erected; parliamentaryinstitutions acquired form and strength under the House of Lancaster; andthough the promise of a regular administration of the law was as often violatedas kept, the right of the subject to its benefits was never surrendered, and atlength, at the beginning of the reign of Charles I., it received furtherassurance and confirmation in the royal assent to
The Petition of Right.[7:1] By this petition itwas prayed, among other things, "that no man be compelled to make or yield anygift, loan, benevolence, tax, or such like charge, without common consent byact of Parliament; that none be called upon to make answer for refusal so todo; that freemen be imprisoned or disseized only by the law of the land, or bydue process of law, and not by the king's special command without any charge."In the next reign was enacted
The Habeas Corpus Act,[7:2] the purpose of which wasto give speedy relief from all unlawful imprisonments, and to enforce uponjudicial and other officers the duty of deliverance. The fourth of the greatcharters of English constitutional liberty was
The Bill of Rights,[7;3] which embodied in statutoryform the principles enumerated in the Declaration of Rights presented by theConvention Parliament to the sovereigns called by that body to the throne onthe Revolution of 1688. The purpose of this act was to enumerate and reaffirmsuch rights of the people as the House of Stuart in any of its reigningrepresentatives had set aside, encroached upon, or ignored.
The Common Law. The charters above mentioned declaredgeneral principles, but the common law was the expositor of these, and theextent of the protection they should give could only be determined by itsrules. That law was the growth of many centuries; its maxims were those of asturdy and independent race of men, who were accustomed in an unusual degree tofreedom of thought and action, and to a share in the administration of publicaffairs.[7:4] So far as they declared individual rights, they were apart of the constitution of the realm, and of that "law of the land" thebenefit of which was promised by the charter of King John to every freeman.They were modified and improved from age to age, by changes in the habits ofthought and action among the people, by modifications in the civil andpolitical state, by the vicissitudes of public affairs, by judicial decisions,and by statutes.
The colonists claimed that this code of law accompanied them, as astandard of right and of protection in their emigration, and that it remainedtheir law, excepting as in some particulars it was found unsuited to theircirc*mstances in the New World. Relying upon it, they had well known and welldefined rules of protection; without it, they were at the mercy of those whoruled, and, whether actually oppressed or not, were withoutfreedom.[8:1]
Violations of Constitutional Right. The complaints ofviolation of constitutional right were principally directed to four points: 1. Imposing taxes without the consent of the people's representatives.2. Keeping up standing armies in time of peace to overawe the people. 3.Denying a right to trial by a jury of the vicinage in some cases, and providingfor a transportation of persons accused of crimes in America for trial in GreatBritain. 4. Exposing the premises of the people to searches, and their persons,papers, and property to seizures on general warrants. If Americans wereentitled to the constitutional rights of Englishmen, it was unquestionable thatin these particulars their rights were invaded; but the imperial governmentdenied that the colonists could claim rights as against the exercise of itspowers.
Independence. The sovereignty passed forever from theBritish Crown and Parliament when the war of the Revolution was actually begun,waged on the one side by the government of Great Britain to reduce thecolonists to submission, and directed on the other side by a ContinentalCongress which assumed the sovereign power of conducting belligerent affairs.This great fact was not perceived, and indeed not assured, for more than ayear, and it was then proclaimed to the world in the solemn document known asthe Declaration of Independence, and which has already been mentioned.
In pronouncing the dissolution of the political bonds with the mothercountry, the signers of this instrument declare that "we hold these truths tobe self-evident, that all men are created equal; that they are endowed by theirCreator with certain unalienable rights; that among these are life, liberty,and the pursuit of happiness; that to secure these rights governments areinstituted among men, deriving their just powers from the consent of thegoverned; that whenever any form of government becomes destructive of theseends, it is the right of the people to alter or to abolish it, and to institutea new government, laying its foundation on such principles, and organizing itspowers in such form, as to them shall seem most likely to effect their safetyand happiness." And proceeding to an enumeration of the grievances whichjustify their action, they close by declaring the dissolution of the ties thatbind the Colonies to the British Crown, and asserting their independence in theterms already given.[9:1]
Revolutionary Government. The government of the Unionunder the Continental Congress was strictly revolutionary in character, and wasconstituted by an acquiescence of the people and the several States in theexercise by the Congress of certain undefined powers of general concern, thechief of which were the power to declare war, to conclude peace, to formalliances, and to contract debts on the credit of the Union.[10:1]The governments of the several States were also at first revolutionary, buttheir previous organization was such that the war disturbed them but little,and modified forms more than substance. All of them had local governments andthe common law, which remained undisturbed; all of them had legislative bodies,which continued to perform their functions, but without the recognition of thepre-existing executive authority. The States, however, soon proceeded to adoptformal constitutions, apportioning, defining, and limiting the powers of theseveral departments of government, and with two exceptions they had completedthis work before independence was acknowledged by GreatBritain.[10:2] The liberal charter granted to Rhode Island byCharles II. in 1663 was found sufficient for the purposes of a freecommonwealth, and was tacitly adopted as the constitution of the State, andremained such for two thirds of a century.[10:3] The charter ofConnecticut was not superseded by a constitution until 1818.
But a merely revolutionary government could not long answer the purposesof the Union. The powers of the Continental Congress having never been formallyconferred, or indeed agreed upon, by the States, that body was regarded by thepeople and by the State authorities as an advisory body rather than as agovernment, and the pressure of external necessity determined the degree ofobedience its commands or advice should receive. In most important matters theywere often disregarded, and the Confederation seemed at the point of falling topieces for the want of a legal bond of union and of legal power to compel theperformance of duties owing to it by its several members.
Articles of Confederation. This evil it was sought toremedy by "Articles of Confederation and Perpetual Union," prepared by theCongress and submitted to the States in 1777, and ratified subsequently byrepresentatives of the States empowered by their respective legislatures so todo.[11:1]
These Articles declared that "Each State retains its sovereignty,freedom, and independence, and every power, jurisdiction, and right which isnot by this Confederation expressly delegated to the United States in Congressassembled;" that "The said States hereby severally enter into a firm league offriendship with each other, for their common defence, the security of theirliberties, and their mutual and general welfare, binding themselves to assisteach other against all force offered to, or attacks made upon them, or any ofthem, on account of religion, sovereignty, trade, or any other pretencewhatever; "and that, "for the more convenient management of the generalinterests of the United States," delegates from the several States shall meetin a Congress, in which each one shall have an equal vote.
They further declared that "No State, without the consent of the UnitedStates in Congress assembled, shall send any embassy to, or receive any embassyfrom, or enter into any conference, agreement, alliance, or treaty with anyking, prince, or state;" that "No two or more States shall enter into anytreaty, confederation, or alliance whatever between them without the consent ofthe United States in Congress assembled;" that "No State shall lay any impostsor duties which may interfere with any stipulations in treaties entered into bythe United States in Congress assembled, with any king, prince, or state;" that"No State shall engage in any war without the consent of the United States, inCongress assembled, unless such State be actually invaded by enemies, or shallhave received certain advice of a resolution being formed by some nation ofIndians to invade such State, and the danger is so imminent as not to admit ofa delay till the United States in Congress assembled can be consulted;" andthat except in such cases "the United States in Congress assembled shall havethe exclusive right and power of determining on peace and war;" also of sendingand receiving ambassadors, entering into treaties and alliances, establishingrules and courts for the determination of cases of capture and prize, grantingletters of marque and reprisal in time of peace, and appointing courts for thetrial of piracies and felonies committed on the high seas. Also that the UnitedStates in Congress assembled shall be the last resort on appeal in all disputesand differences between two or more States concerning boundary, jurisdiction,or any other cause whatever.
The United States in Congress assembled were also empowered to borrowmoney, or emit bills on the credit of the United States, to build and equip anavy, to agree upon the number of land forces, and to make requisitions uponeach State for its quota, in proportion to the number of white inhabitants ofsuch State, but with the right to vary from this quota when the circ*mstancesrendered it proper.
The delegates in Congress were to be maintained by their Statesrespectively; but it was declared that "All charges of war, and all otherexpenses that shall be incurred for the common defence or general welfare, andallowed by the United States in Congress assembled, shall be defrayed out of acommon treasury, which shall be supplied by the several States in proportion tothe value of all land within each State, granted to or surveyed for any person,as such land and the buildings and improvements thereon shall be estimated,according to such mode as the United States in Congress assembled shall fromtime to time direct and appoint." The United States in Congress assembled weregiven the right and power of regulating the alloy and value of coin struck bytheir own authority or by that of the respective States, of fixing the standardof weights and measures, and of establishing and regulating post-offices andpostage.
It was further declared, that "The United States in Congress assembledshall never engage in a war, nor grant letters of marque and reprisal in timeof peace, nor enter into any treaties or alliances, nor coin money, norregulate the value thereof, nor ascertain the sums and expenses necessary forthe defence and welfare of the United States, or any of them, nor emit bills,nor borrow money on the credit of the United States, nor appropriate money, noragree upon the number of vessels of war to be built or purchased, or the numberof land or sea forces to be raised, nor appoint a commander-in-chief of thearmy or navy, unless nine States assent to the same; nor shall a question onany other point, except for adjourning from day to day, be determined, unlessby the votes of a majority of the United States in Congress assembled."
The Congress was empowered to appoint an executive committee, consistingof one from each State, to sit during the recess of Congress, who would beauthorized "to execute such of the powers of Congress as the United States inCongress assembled, by the consent of nine States, shall, from time to time,think expedient to vest them with." It was declared that the United States andthe public faith were solemnly pledged for the public debts previouslycontracted by authority of Congress; that the States should abide by all thedeterminations of the Congress on all questions by the Confederation submittedto that body; and that "The Articles of this Confederation shall be inviolablyobserved by every State, and the Union shall be perpetual; nor shall anyalteration at any time hereafter be made in any of them, unless such alterationbe agreed to in a Congress of the United States, and be afterwards confirmed bythe legislatures of every State."
Failure of the Confederation. The defects in theConfederation were such as rendered speedy failure inevitable. It accomplisheda temporary purpose in a very imperfect manner, but it was impossible that itshould do more. The Confederation was given authority to make laws on somesubjects, but it had no power to compel obedience; it might enter into treatiesand alliances which the States and the people could disregard with impunity; itmight apportion pecuniary and military obligations among the States in strictaccordance with the provisions of the Articles; but the recognition of theobligations must depend upon the voluntary action of thirteen States, all moreor less jealous of each other, and all likely to recognize the pressure of homedebts and home burdens sooner than the obligations of the broader patriotisminvolved in fidelity to the Union; it might contract debts, but it could notprovide the means for satisfying them; in short, it had no power to levy taxes,or to regulate trade and commerce, or to compel uniformity in the regulationsof the States; the judgments rendered in pursuance of its limited judicialauthority were not respected by the States; it had no courts to take notice ofinfractions of its authority, and it had no executive. A further specificationof defects is needless, for any one of those mentioned would have been fatal."Obedience is what makes government, and not the names by which it iscalled;"[14:1] and the Confederation had neither obedience at homenor credit or respect abroad. The people was one in promising and thirteen whenperformance was due, and it became at last difficult to enlist sufficientinterest in its proceedings to keep up the forms of government through themeetings of Congress and of the executive committee.[15:1]
The Constitutional Convention. In February, 1787, aresolution was adopted by the Congress recommending a convention inPhiladelphia, in the May following, of delegates from the various States, "forthe purpose of revising the Articles of Confederation, and reporting toCongress and the several legislatures such alterations and provisions thereinas shall, when agreed to in Congress and confirmed by the States, under theFederal Constitution be adequate to the exigencies of government and thepreservation of the Union." This was in strict conformity with the provisionfor amendment contained in the Articles, and was acted upon by all the Statesexcept Rhode Island, which alone sent no delegates. The Convention when it met,after full consideration, determined that alterations in and amendments to theArticles would be inadequate to the purposes of government, and proceeded torecommend a new Constitution, and to provide that "The ratification of theconventions of nine States shall be sufficient for the establishment of thisConstitution between the States so ratifying the same." As this was indisregard of the provision in the Articles of Confederation, which required theassent of every State, it was a revolutionary proceeding,[15:2] andcould be justified only by the circ*mstances which had brought the Union to thebrink of dissolution.
Its revolutionary character appears more distinctly from the actionunder it, since eleven States only had ratified the Constitution when thegovernment was organized in pursuance of its provisions,[16:1] andthe remaining two, North Carolina and Rhode Island, were for a time excludedfrom the Union. Both gave their assent, however, and became members of theUnion, the first in November, 1789, and the other in May, 1790.
Sovereignty of the States. The term sovereignty inits full sense imports the supreme, absolute, and uncontrollable power by whichany independent state is governed.[16:2] From what has already beensaid it appears that, although the States were called sovereign and independentin the Declaration of Independence, they were never in their individualcharacter strictly so, because they were always, in respect to some of thehigher powers of sovereignty, subject to the control of some common authority,and were never separately recognized or known as members of the family ofnations. This common authority was, first, the Crown and Parliament ofGreat Britain; second, the Revolutionary Congress; third, theCongress of the Confederation; and at length the government formed under theConstitution. The powers of these differed greatly, but in one most importantparticular there was uniformity: each had control of affairs of war for all theColonies or States, and of all intercourse with foreign nations. Only NorthCarolina and Rhode Island are to be considered exceptions to this generalstatement: these for the little time while they were excluded from the Union bytheir neglect to ratify the Constitution were relieved from all commonauthority, and became wholly independent. It is to be said of them, however,that they remained in that condition for a period so brief that assovereignties they neither obtained nor sought for recognition by foreignnations.[17:1]
Bill of Rights. The several charters of English liberty towhich reference has already been made had been much relied upon by the Americanpeople in the controversies resulting in independence, and their clearassertion of individual rights was of inestimable value in inspiring the peopleto resist tyrannical action of the government. Each of these charters had beenmore specific and enlarged in its provisions than that which preceded, and itmight have been expected that the Convention of 1787 would have followed theexamples, and that in their completed work would have been found a clear andfull enumeration of those rights which were deemed indefeasible, and whichmight lawfully be asserted against the government itself. The importance ofthis, however, did not impress itself on the minds of the members of thatbody.[17:2] The Constitution did indeed insure the benefits of thehabeas corpus; it precluded constructive treasons; it prohibited billsof attainder and ex post facto laws; and it provided for the trial ofcriminal accusations by jury; but there was no attempt at a systematicenumeration of fundamental rights, and the absence of this was made a ground ofpersistent opposition to the ratification of the Constitution. / Some of theleading States, indeed, were only induced to ratify in reliance upon a bill ofrights being added to the Constitution by amendments,[17:3] and thiswas done in eight articles, which were proposed and adopted as speedily as thenecessary forms could be gone through with. For a proper understanding of theseprovisions it is essential to keep in mind that their purpose, as well as thatof similar provisions in the original instrument, was to put it out of thepower of the government now being created to violate the fundamental rights ofthe people who were to be subjected to its authority. They constitutelimitations, therefore, upon the power of the Federal government only. Theexceptions to this general statement are only of those few cases in which theStates are named, and the exercise of certain powers by them expresslyprohibited. For example, when the Constitution, in Art. I. § 9, declaresthat "no bill of attainder or ex post facto law shall be passed," it isstill necessary, in order to extend the prohibition to the States, to provide,as is done in the next section, that "no State" shall pass such a billor law. To state the rule of construction concisely, it is this. Therestrictions imposed upon government by the Constitution and its amendments areto be understood as restrictions only upon the government of the Union, exceptwhere the States are expressly mentioned.[18:1]
This rule of construction is a very important and fundamental one, andshould be kept in mind in the study of the succeeding pages. In the course ofthe book many of the restrictions upon governmental action mentioned in theConstitution are discussed as general principles affecting the relations of thecitizens of the State to their State government, as well as the relations ofthe citizens of the United States to the Federal government. But this method oftreatment is used, not because restrictions or prohibitions in favor ofindividual liberty mentioned in the Federal Constitution are limitations uponthe power of the States when the States are not expressly mentioned, butbecause like restrictions and prohibitions are contained in State Constitutionsdirectly limiting the action of State governments. Although the courts of theone government when interpreting its Constitution are not bound by thedecisions of the courts of another government interpreting similar provisionsin its Constitution, as a matter of fact a series of constitutional principleshas come into being which are recognized by both Federal and State courts inthe interpretation of constitutional provisions.[19:1]
[5:1] Pitkin, Hist. of U. S., ch. 6; Frothingham, Rise of theRepublic, ch. 5, 6.
[6:1] Frothingham, Rise of the Republic, ch. 5; Pitkin, Hist.of U. S., ch. 7.
[6:2] Pitkin, Hist. of U. S., ch. 3.
[6:3] Blackstone's Charters; 4 Bl Com. 424; Story on Const.,§ 1779; Stubbs, Const. Hist., ch. 12; Cooley, Const. Lim., ch. 11.
[7:1] 3 Ch. I., ch. 1 (1628).
[7:2] 31 Ch. II., ch. 2 (1679).
[7:3] 1 Wm. & Mary, Ses. 2, ch. 2 (1689).
[7:4] Cooley, Const. Lim., 6th ed., p. 33. Van Ness v.Pacard, 2 Pet 137, 144.
[8:1] "Not the man alone who feels, but who is exposedto tyranny, is without freedom." Sir William Meredith, quoted in Life ofIredell, i. 212.
[9:1] Curtis, History of the Constitution, chap. 3. Thisauthor well says: "The body by which this step was taken constituted the actualgovernment of the nation at the time, and its members had been directlyinvested with competent legislative power to take it, and had also beenspecially instructed so to do." (p. 51.)
[10:1] Curtis, Hist. of Const., ch. 1, 2.
[10:2] See Mr. Bancroft's admirable chapter on "The Rise ofFree Commonwealths," Hist. of U. S., vol. x. ch. 10; Centennial ed., vol. vi.ch. 46.
[10:3] Of the original States, Delaware, Maryland, NewHampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, andVirginia adopted constitutions in 1776, Georgia and New York in 1777,Massachusetts in 1780, and Rhode Island in 1842.
[11:1] Curtis, Hist. of the Const., ch. 5. All the Statesexcept two ratified the Articles in 1778; Delaware delayed till the next year,and Maryland till 1781. The delay in the case of Maryland was for the purposeof obtaining a permanent and satisfactory settlement of the claims to Westernlands. See Maryland's Influence upon Land Cessions to the United States, by H.B. Adams, in Johns Hopkins Studies, etc., vol. iii. p. 1.
[14:1] Burke, Speech on Conciliatian [sic] with America.
[15:1] The reasons for the failure have been dwelt upon atlength by many writers, particularly Story on Const., ch. 4; Pitkin, Hist. ofU. S., ch. 17; Curtis, Hist. of the Const., book 2; Von Holst, Const. Hist.,ch. 1; Fiske, The Critical Period of American History; Schouler, Hist. of U.S., vol. i. ch. 1; and Madison, Hamilton, and Jay, in the Federalist.
[15:2] Van Buren, Political Parties, p 50; Federalist, No.43, by Madison; Burgess, Political Science and Comparative Constitutional Law,vol. i pp. 101-108.
[16:1] March 4, 1789, was the time fixed for the organizationof the government, but it was not in fact inaugurated until the 30th of thefollowing month.
[16:2] Burlamaqui, Politic. Law, ch. 5; 1 Bl. Com., 49; Storyon Const., § 207; Wheat. Int. Law, pt. 1, ch. 2, § 5; Austin, Prov.of Juris., ch. 6; Chipman on Gov., 137.
[17:1] Life and Writings of A. J. Dallas, 200-207; Von Holst,Const Hist., ch. 1; Chisholm v. Georgia, 2 Dall. 419, 470, per Jay, Ch.J.; Texas v. White, 7 Wall. 700, 724.
[17:2] For reasons that might be urged against it, seeFederalist, No. 84; compare Jefferson's Works, vol. iii. pp. 4, 13, 101, vol.ii pp. 329, 358; Life of Madison, by Rives, vol. ii. p. 38 et seq.;Hamilton's Hist. of the Republic, vol. iv. p. 23.
[17:3] See the recommendations by Massachusetts, SouthCarolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island,in Elliott's Debates, i. 322-334.
[18:1] Barron v. Baltimore, 7 Pet 243; Smith v.Maryland, 18 How. 71; Pervear v. Commonwealth, 5 Wall 475; Twitchellv. Commonwealth, 7 Wall. 321; Justices v. Murray, 9 Wall. 274;Edwards v. Elliott, 21 Wall. 532; Walker v. Sauvinet, 92 U.S. 90;Presser v. Illinois, 116 U. S. 252; Spies v. Illinois, 123 U. S.131. The Bill of Rights is interpreted in the light of the law as it existed atthe time of its adoption. "Many of the provisions of the Bill of Rights aresubject to exceptions, recognized long before the adoption of the Constitutionand not interfering at all with its spirit." Mattox v. United States,156 U. S. 237.
[19:1] See, for example, post, Ch. XIV. Sec. V., wherefreedom of speech and of the press are considered.
CHAPTER II. DEFINITIONS AND GENERAL PRINCIPLES.
Nation and State. A State may be defined to be a bodypolitic or society of men united together under common laws for the purpose ofpromoting their mutual safety and advantage by the joint efforts of theircombined strength.[1] The term 13 often employed as importing thesame thing with nation; but the latter is more nearly synonymous with people,and while a single state may embrace several different nations or peoples, asingle nation will sometimes be so divided politically as to constitute severalstates.
In the following pages the word State will sometimes be employedin the general sense above expressed, but more commonly it will refer to theseveral members of the American Union, while the word Nation will beapplied to the whole body of the people coming under the jurisdiction of thefederal government.
A State is either sovereign or dependent. It is sovereign when thereresides within itself a supreme and absolute power, acknowledging no superior,and it is dependent when in any degree or particular its authority is limitedby an acknowledged power elsewhere.[2] It is immaterial to thisdefinition whether the supreme power reposes in one individual, or one body orclass of individ-
[1] Vattel, b. 1, ch. 1, § 1; Wheat. Int. Law, pt. 1,ch. 2, § 2; Story on Const., § 207; Burlamaqui, Pol. Law, ch. 5;Cooley, Const. Lim., 1.
2 Vattel, b. 1, ch. 1, § 2; Chipman on Government, 137; Halleck,Int. Law, 65.
uals, or in the whole body of the people; whether, in other words, thegovernment is a monarchy, an aristocracy, a republic, or a democracy, or anycombination of these; for the form only determines the methods in whichsovereign powers shall be exercised.
All civilized states recognize a body of rules or laws which is calledthe Law of Nations, and the rules are either rules of public international law,as they relate to and regulate the intercourse of states with each other, or ofprivate international law, as they define and protect the rights, privileges,and obligations of the citizens or subjects of one state passing into another,or owning property, making contracts, or conducting operations that may begoverned by the laws of another. In contemplation of the law of nations, allsovereign states are and must be equal in rights, since from the verydefinition of sovereign state it is impossible that there should be in respectto it any political superior.
In theory sovereignty must be a unity, and the sovereignty of a statemust extend to all the subjects of government within the territorial limitsoccupied by the associated people who compose it, so that the dividing linebetween sovereignties must be a territorial line. In the law of nations for thepurposes of international intercourse some encroachment upon the theory isadmitted, and the sovereignty of one state is projected within the jurisdictionof another, so as to retain within its rule its ambassadors and ministersresident abroad, and its ships of war in foreign ports. In Americanconstitutional law a peculiar system is established; the powers of sovereigntybeing classified, and some of them apportioned to the government of the UnitedStates for its exercise, while others are left with the States. Under thisapportionment the nation is possessed of supreme, absolute, and uncontrollablepower in respect to certain subjects throughout all the States, while theStates have the like unqualified power, within their respective limits, inrespect to other
subjects.[1] Over certain other subjects the States have aqualified dependent or defeasible power, inasmuch as their action is liable atany time to be overruled, and their powers to become dormant, by the exerciseof a superior power which is conferred upon the nation over the samesubjects.[2]
Constitution. The term constitution may be definedas the body of rules and maxims in accordance with which the powers ofsovereignty are habitually exercised.[3] A constitution is valuablein proportion as it is suited to the circ*mstances, desires, and aspirations ofthe people, and as it contains within itself the elements of stability,permanence, and security against disorder and revolution. Although every statemay be said in some sense to have a constitution, the term constitutionalgovernment is only applied to those whose fundamental rules or maxims notonly define how those shall be chosen or designated to whom the exercise ofsovereign powers shall be confided, but also impose efficient restraints on theexercise for the purpose of protecting individual rights and privileges, andshielding them against any assumption of arbitrary power.[4] Thenumber of such governments is not as yet great, but is increasing.
A constitution may be written or unwritten. If unwritten, there maystill be laws or authoritative documents which declare some of its importantprinciples; as we have seen has been and is still the case in England. Theweakness of an unwritten constitution consists in this, that it is subject toperpetual change at the will of the
[1] License Cases, 5 How. 504, 588; Ableman v. Booth,21 How. 506, 516; United States v. Cruikshanks, 92 U. S. 542; Barbierv. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623; Kiddv. Pearson, 128 U. S. 1.
[2] Cooley v. Wardens, &c., 12 How. 299, Mobilev. Kimball, 102 U. S. 691; Willamette Bridge Co v. Hatch, 125 U.S. 1; Morgan's S. S. Co v. Louisiana, 118 U. S. 455; Smith v.Alabama, 124 U.S 465.
[3] Duer, Const Juris., 26; Cooley, Const. Lim , 2.
[4] Calhoun, Disquisition on Government, Works, 1, 11.
law-making power; and there can be no security against such changeexcept in the conservatism of the law-making authority, and its politicalresponsibility to the people, or, if no such responsibility exists, then in thefear of resistance by force. In America the leading principle of constitutionalliberty has from the first been, that the sovereignty reposed in the people;and as the people could not in their collective capacity exercise the powers ofgovernment, a written constitution was by general consent agreed upon in eachof the States. These constitutions create departments for the exercise ofsovereign powers; prescribe the extent of the exercise, and the methods, and insome particulars forbid that certain powers which would be within the compassof sovereignty shall be exercised at all. Each of these constitutes for theState the absolute rule of action and decision for all departments and officesof the government, in respect to all the points covered by it, which mustcontrol until it shall be changed by the authority which established it.Whatever act or regulation of any department or officer is in excess of thepower conferred by this instrument, or is opposed to any of itsdirections or regulations, is altogether void. The constitution, moreover, isin the nature of a covenant of the sovereign people with each individualthereof, under which, while they intrust the powers of government to politicalagencies, they also divest themselves of the sovereign power of making changesin the fundamental law except by the method in the constitution agreed upon.The Constitution of the United States creates similar governmental trusts andimposes similar restrictions. The weaknesses of a written constitution are,that it establishes iron rules, which, when found inconvenient, are difficultof change; that it is often construed on technical principles of verbalcriticism, rather than in the light of great principles; and that it is likelyto invade the domain of ordinary legislation, instead of being restricted tofundamental rules, and thereby to invite demoralizing evasions. But, thewritten constitution
being a necessity in America, the attendant evils are insignificant ascompared with the inestimable benefits.
In the following pages, where the Constitution is spoken of, theConstitution of the United States will be intended unless otherwiseexplained.
Unconstitutional Law. A law is sometimes said to beunconstitutional, by which is meant that it is opposed to the principles orrules of the constitution of the state. An unconstitutional enactment issometimes void, and sometimes not; and this will depend upon whether, accordingto the theory of the government, any tribunal or officer is empowered to judgeof violations of the constitution, and to keep the legislature within thelimits of a delegated authority by annulling whatever acts exceed it. Accordingto the theory of British constitutional law the Parliament possesses and wieldssupreme power,[1] and if therefore its enactments conflict with theConstitution, they are nevertheless valid, and must operate as modifications oramendments of it. But where, as in America, the legislature acts under adelegated authority, limited by the Constitution itself, and the judiciaiy isempowered to declare what the law is, an unconstitutional enactment must fallwhen it is subjected to the ordeal of the courts. Such an enactment is instrictness no law, because it establishes no rule: it is merely a futileattempt to establish a law. The remedy for unconstitutional enactments inEngland must therefore be political or revolutionary, while in America they maybe found in the ordinary process of the courts. Still even in America somecases must be beyond the reach of judicial cognizance, because the questionsinvolved are purely political. Such, for example, were questions involved inthe reconstruction of the States recently in rebellion, and the questiongrowing out of the
[1] 1 Bl. Com., 161; Broom, Const. Law, 795; De Tocqueville,Democracy in America, ch 6, Dicey, The Law of the Constitution, pt. 1, ch1.
attempt to overthrow the charter government of RhodeIsland.[1]
The Might of Revolution. The authority of the BritishCrown over the Colonies was rejected, and a government created by the people ofthe Colonies for themselves, and this afterwards radically changed and reformedin the adoption of the Federal Constitution under the great and fundamentalright of every people to change their institutions at will, in otherwords, under the right of revolution. It is true that the colonists in theincipient period of the change planted themselves upon established rights,instead of seeking or desiring a revolution. Their purpose, therefore, was tomaintain old established principles of the Constitution, instead of overturningthem; and they occupied a conservative position, resisting innovations whichthe imperial government was attempting to force. Nevertheless there was nosettled principle of the constitution that limited in any manner the sovereignright of Parliament to change at will the laws protecting the life, liberty,and property of the subject; and had the same laws which in this particularoppressed the people of the Colonies been applied to the people of the realm,they would have been within the acknowledged power of the Parliament. So inregard to the Colonies the right of the imperial government to rule in allrespects might be defended on precedent, and the leading publicists of the dayaffirmed it. It was nevertheless the fact that the exercise of imperial powerin the particulars complained of was tyrannical and in disregard ofconstitutional principles, and that resistance was directly in the line ofEnglish precedents which at the time were almost universally approved inEngland itself. There was consequently ample ground for resistance, and if theother conditions for revolution existed, the colonists were right in attemptingit.
The right of revolution may be said to exist when the [1]Luther v. Borden, 7 How. 1; Mississippi v. Johnson, 4 Wall.475.
government has become so oppressive that its evils decidedly overbalancethose which are likely to attend a change, when success in the attempt isreasonably certain, and when such institutions are likely to result as will besatisfactory to the people.[1] In this last particular theprobability of success will depend largely on the extent of the revolutionattempted, whether it extends to the laws in general, or only to thehead of the government. In America only a change in the general sovereignty wasintended; in respect to the general laws, the revolution was strictlypreservative. It became necessary, nevertheless, to make considerable changesin state laws and institutions before the revolution was perfected, and whenthese were completed in the adoption of the Federal Constitution, therevolution was fully justified in the establishment of more satisfactoryinstitutions than had existed before.
The Constitution: by whom adopted. To a properunderstanding and construction of the Constitution it becomes important to knowat the outset who were the parties to it, by whom it was adopted, andwhat it was meant to accomplish. In these particulars the present work cannotenter into the field of speculation or discussion, nor would it be important todo so. The general principles governing the case have been judiciallydetermined, and the political departments of the government have accepted theconclusions. It therefore becomes sufficient for our purposes to say here, thatthe Constitution was agreed upon by delegates representing the States inconvention; that it was submitted to the people of the several States by theirrespective legislatures; that it was adopted by the people through delegateselected for the express purpose of considering and deciding upon it, and thatthe people of the States, as well as the States themselves, thereby becameparties to it. It was therefore properly declared in the preamble, that "We,the people
[1] Woolsey, Pol Science, i. 402.
of the United States, do ordain and establish this Constitution for theUnited States of America."[1] By the adoption of the Constitutionthe people of the States before united in a confederation became a nation underone government,[2] and the citizens of every State became alsocitizens of the United States.[3] The purpose of the Constitution isforcibly and clearly declared in the preamble. It was "in order to form a moreperfect union, establish justice, insure domestic tranquillity, provide for thecommon defence, promote the general welfare, and secure the blessings ofliberty to ourselves and our posterity." These purposes collectively, it hasbeen well said, "comprise everything requisite, with the blessing of DivineProvidence, to render a people prosperous and happy."[4] By the newamendments to the Constitution the freedmen become a part of the people, andall the purposes for which it was made and established are to be deemed to havethem in view, and to contemplate their protection and benefit as a part of thebody politic.
Not a mere Compact. The confederation of the States hadexisted by force of a mere compact, and for want of power in the commonauthority had so completely failed in the purposes of its formation as tojustify its being superseded by revolutionary, though peaceful, means. Amongits chief defects was the fact that it operated on States only, and that thehighest sanction it could give to its lawful determinations was that of advice,or entreaty; it could not command, and it could not enforce. The Constitutionwhich was adopted to supersede it, on the other hand, is an instrument ofgovernment, agreed upon and established, and rendered efficient as such bybeing made
[1] Martin v. Hunter, 1 Wheat. 304, 324; Cohensv. Virginia, 6 Wheat. 264, 413.
[2] Lane County v. Oregon, 7 Wall. 71, 76.
[3] Minor v. Happersett, 21 Wall. 162; United Statesv. Cruikshanks, 92 U. S. 542.
[4] Chisholm v. Georgia, 2 Dall. 419.
Operative upon the people individually and collectively, and, within thesphere of its powers, upon the States also.[1] This was the judicialview of the Constitution from the first,[2] and it has beenpractically and finally settled against opposing theories, by the action of theseveral departments of the government, extending over the whole period of theexistence of the Union under the Constitution; by the acquiescence of thepeople in this view, and their forcible resistance to the attempt made tosupersede it; and, finally, by the adoption of the thirteenth, fourteenth, andfifteenth articles of the amendments to further strengthen and consolidate theUnion under the government of the Constitution.[3]
The Union Indissoluble. By the Articles of Confederation"the Union was declared to be 'perpetual.' And when these Articles were foundto be inadequate to the exigencies of the country, the Constitution wasordained ' to form a more perfect Union.' It is difficult to convey the idea ofindissoluble unity more clearly than by these words. What can be indissoluble,if a perpetual union made more perfect is not?"[4] When a State isonce in the Union, there is "no place for reconsideration or revo-
[1] Webster, "The Constitution not a Compact," Speeches, iii.349; Jackson's Proclamation on Nullification in 1833, Elliott's Debates, iv.610, Statesman's Manual, i. 890.
2 Martin v. Hunter, 1 Wheat. 304, 324; M'Culloch v.Maryland, 4 Wheat 316, 402; Gibbons v. Ogden, 9 Wheat. 1, 187; RhodeIsland v. Massachusetts, 12 Pet. 657, 720; Texas v. White, 7Wall. 700, 726.
[3] Views either radically or in part opposed to those whichhave prevailed are presented in Calhoun's Discourse on the Constitution andGovernment of the United States, Works, i. 11; and Address on the Relations ofthe State to the General Government, Works, vi. 59, Upshur on the FederalConstitution; Construction Construed and Constitution Vindicated, by JohnTaylor; New Views of the Constitution of the United States, by the same; TheConstitutional View of the War between the States, by A. H. Stephens; TheKentucky and Virginia Resolutions of 1798-9, Elliott's Debates, iv. 566, 572.and other publications too numerous for mention here.
[4] Texas v. White, 7 Wall. 700, 725.
cation, except through revolution, or through the consent of theStates."[1]
The States Indestructible. "But the perpetuity andindissolubility of the Union by no means implies the loss of distinct andindividual existence, or of the right of self-government by the States. Withoutthe States in union there could be no such political body as the UnitedStates.[2] Not only, therefore, can there be no loss of separate andindependent autonomy to the States, through their union under the Constitution,but it may not unreasonably be said that the preservation of the States and themaintenance of their governments are as much within the design and care of theConstitution as the preservation of the Union and the maintenance of thenational government. The Constitution in all its provisions looks to anindestructible Union composed of indestructible States."[3]
The Constitution a Grant of Powers. The government createdby the Constitution is one of limited and enumerated powers, and theConstitution is the measure and the test of the powers conferred. Whatever isnot conferred is withheld, and belongs to the several States or to the peoplethereof.[4] As a constitutional principle this must result from aconsideration of the circ*mstances under which the Constitution was formed. TheStates were in existence before, and possessed and exercised nearly all thepowers of sovereignty. The Union was in existence, but the Congress whichrepresented it possessed a few powers only, conceded to it by the States, andthese circ*mscribed and hampered in a manner to
[1] Texas v. White, 7 Wall. 700, 726.
[2] Lane County v. Oregon, 7 Wall 71, 76.
[3] Texas v. White, 7 Wall. 700, 725
[4] Calder v. Bull, 3 Dall. 386; Gibbons v.Ogden, 9 Wheat. 1, 187 Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilmanv. Philadelphia, 3 Wall. 713; Slaughter House Cases, 16 Wall. 36; UnitedStates v. Cruikshanks, 92 U. S. 542, 650.
render them of little value. The States were thus repositories ofsovereign powers, and wielded them as being theirs of inherent right; the Unionpossessed but few powers, enumerated, limited, and hampered, and these belongedto it by compact and concession. In a confederation thus organized, if a powercould be in dispute between the States and the Confederacy, the presumptionmust favor the States. But it was not within the intent of those who formed theConstitution to revolutionize the States, to overturn the presumptions thatsupported their authority, or to create a new government with uncertain andundefined powers. The purpose, on the contrary, was to perpetuate the States intheir integrity, and to strengthen the Union in order that they might beperpetuated. To this end the grant of powers to the Confederacy needed to beenlarged and extended, the machinery of government to be added to andperfected, the people to be made parties to the charter of government, and thesanction of law and judicial authority to be given to the legitimate acts ofthe government in any and all of its departments. But when this had been done,it remained true that the Union possessed the powers conferred upon it, andthat these were to be found enumerated in the instrument of government underwhich it was formed. But lest there might be any possible question of this inthe minds of those wielding any portion of this authority, it was declared bythe tenth article of the amendments that "The powers not delegated to theUnited States by the Constitution, nor prohibited by it to the States,are reserved to the States respectively or to the people."[l]
From what has just been said, it is manifest that there must be adifference in the presumption that attends an exercise of national and one ofState powers. The differ-
[1] The corresponding article in the Confederation was: "EachState retains its sovereignty, freedom, and independence, and every power,jurisdiction, and right, which is not by this Confederation expressly delegatedto the United States in Congress assembled." Art. II.
ence is this. To ascertain whether any power assumed by the governmentof the United States is rightfully assumed, the Constitution is to be examinedin order to see whether expressly or by fair implication the power hasbeen granted, and if the grant does not appear, the assumption must be heldunwarranted. To ascertain whether a State rightfully exercises a power, we haveonly to see whether by , the Constitution of the United States it is concededto the Union, or by that Constitution or that of the State prohibited to beexercised at all. The presumption must be that the State rightfully does whatit assumes to do, until it is made to appear how, by constitutionalconcessions, it has divested itself of the power, or by its own Constitutionhas for the time rendered the exercise unwarrantable.[1]
It is Supreme. By Article VI. it is declared that "ThisConstitution, and the laws of the United States which shall be made inpursuance thereof, and all treaties made, or which shall be made, under theauthority of the United States, shall be the supreme law of the land; and thejudges, in every State, shall be bound thereby, anything in the Constitutionand laws of any State to the contrary notwithstanding."[2] Upon thisit is to be observed:
1. The Congress of the United States derives its power to legislate fromthe Constitution, which is the measure of its authority; and any enactment ofCongress which is opposed to its provisions, or is not within the grant ofpowers made by it, is unconstitutional, and therefore no law, and obligatorsupon no one.[3]
2. As between a law of the United States made in pursuance of theConstitution and a treaty made under the
[1] Calder v. Bull, 3 Dall. 386; Golden v.Prince, 3 Wash C.C.313; Slaughter House Cases, 16 Wall. 36; United Statesv. Cruikshanks, 92 U. S. 642.
[2] Const. U. S., Art. VI. § 2.
[3] Ableman v. Booth, 21 How. 506, 520; United Statesv. Cruikshanks, 92 U. S. 542; United States v. Harris, 106 U. S.629; Civil Rights Cases, 109 U. S. 3.
authority of the United States, if the two in any of their provisionsare found to conflict, the one last in point of time mustcontrol.[1] For the one as well as the other is an act ofsovereignty, differing only in form and in the organ or agency through whichthe sovereign will is declared. Each alike is the law of the land in itsadoption, and the last law must repeal everything that is of no higherauthority which is found to come in conflict with it. A treaty may thereforesupersede a prior act of Congress; [2] and, on the other hand, an.act of Congress may supersede a prior treaty.[3]
3. A State law must yield to the supreme law, whether expressed in theConstitution of the United States or in any of its laws or treaties, so far asthey come in collision,[4] and whether it be a law in existence whenthe "supreme law" was adopted, or enacted afterwards.[5] The same istrue of any provision in the constitution of any State which is found to berepugnant to the Constitu-
[1] Foster v. Neilson. 2 Pet. 253, 314; Doe v.Braden, 16 How. 635.
[2] Foster v. Neilson, 2 Pet. 253.
[3] The Cherokee Tobacco, 11 Wall. 616; Head Money Cases, 112U. S. 580; Chinese Exclusion Case, 130 U. S. 581; Taylor v. Morton, 2Curt. C. C. 454. For a statement of the result of the Acts of Congresscontravening the Chinese treaties, see Wan Shing v. United States, 140U. S. 424; Fong Yue Ting v. United States, 149 U. S. 698; Wong Wingv. United States, 163 U. S. 228.
[4] "The United States is a government with authorityextending over the whole territory of the Union, acting upon the States and thepeople of the States. While it is limited in the number of its powers, so faras its sovereignty extends it is supreme. No State government can exclude itfrom the exercise of any authority conferred upon it by the Constitution,obstruct its authorized officers against its will, or withhold from it for amoment the cognizance of any subject which that instrument has committed toit." Tennessee v. Davis, 100 U. S. 257, per Strong, J. See also In reDebs, Petitioner, 158 U. S. 564; Logan v. United States, 144 U. S.263.
[5] Ware v. Hylton, 3 Dall. 199; Hauenstein v.Lynham, 100 U. S. 483; Parrott's Chinese Case, 6 Sawy. 349. In these cases atreaty was held of superior authority to an existing State statute, to asubsequent State statute, and to a subsequent State constitution,respectively.
tion of the Union.[1] And not only must "the judges in everyState" be bound by such supreme law, but so must the State itself, and everyofficial in all its departments, and every citizen.
4. The Constitution itself never yields to treaty or enactment; itneither changes with time, nor does it in theory bend to the force ofcirc*mstances. It may be amended according to its own permission; but while itstands it is "a law for rulers and people, equally in war and in peace, andcovers with the shield of its protection all classes of men, at all times andunder all circ*mstances." Its principles cannot, therefore, be set aside inorder to meet the supposed necessities of great crises. "No doctrine involvingmore pernicious consequences was ever invented by the wit of man, than that anyof its provisions can be suspended during any of the great exigencies ofgovernment. Such a doctrine leads directly to anarchy or despotism, but thetheory of necessity on which it is based is false; for the government withinthe Constitution has all the powers granted to it which are necessary topreserve its existence, as has been happily proved by the result of the greateffort to throw off its just authority."[2]
State Rights. This phrase is common in politicaldiscussions, and especially in those which relate to the powers of the Federalgovernment, and its proper sphere of action under the Constitution. The meaningis likely to differ as do the constitutional views of those who make use of
[1] Dodge v. Wolsey, 18 How. 331; Jefferson BranchBank v. Skelly, 1 Black, 436; Cummings v. Missouri, 4 Wall. 277;Railroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall.646; Gunn v. Barry, 15 Wall. 610; Pacific Railroad Co. v.Maguire, 20 Wall. 36; St. Louis, &c. Ry. Co. U. Vickers, 122 U. S. 360. AState cannot control the conduct of an agency of the Federal government withinits limits, if the result would be a conflict with national law or animpairment of the efficiency of the agency. Davis v. Elmira SavingsBank, 161 U. S. 275; McClellan v. Chipman, 164 U. S. 347. Compare Reaganv. Mercan tile Trust Co., 154 U. S. 413.
[2] Ex parte Milligan, 4 Wall. 2, 120.
it. At certain constitutional crises it has been insisted by somepersons that the right to nullify any congressional enactments which weredeemed to be unauthorized by the Constitution, and the right when the Unionbecame oppressive to withdraw the consent of the State thereto, and therebysecede from it, were within the compass of the reserved rights of the States;and therefore State rights, as a generic term, would in the minds of suchpersons include these. By their opponents the term would then be used as a termof reproach, and as indicating that those who professed to be their advocatesheld disorganizing views, and perhaps indulged revolutionary purposes. Theseextreme views are now for the most part abandoned, and those who profess to bethe special advocates and supporters of State rights put forward as theirleading principle a strict construction of the Federal Constitution, and insistthat that instrument has been greatly perverted from its original purpose, andfederal powers greatly enlarged at the expense of the States, under thedoctrine of a grant of powers by implication. Among those who profess to be thespecial advocates of national rights are also persons of extreme views, some ofwhom contend that the nation is to be considered the fountain and source of allsovereignty, and the States as emanations from it; a view that would changeradically the rules of constitutional construction which the courts have laiddown. Thus the extreme views on one side tend to disintegration, and on theother to centralization; but the adherents to the national, as distinguishedfrom the State rights idea, may be said to advocate only a liberal constructionof national powers as being essential to accomplish the purposes for which theUnion was formed, and therefore within the intent of those who formed it.
In a constitutional view, State rights consist of those rights whichbelonged to the States when the Constitution was formed, and have not by thatinstrument been granted to the Federal government, or prohibited to theStates.
They are maintained by limiting the exercise of federal power to thesphere which the Constitution expressly or by fair implication assigns to it.This is a statement of the legal principle, but the parties who accept it maystill in applying it find ample occasion for differences respecting the properscope of national and State powers respectively.
When a particular power is found to belong to the States, they areentitled to the same complete independence in its exercise as is the nationalgovernment in wielding its own authority. Each within its sphere has sovereignpowers.[1]
Concurrent Powers. The mere grant of a power to Congressdoes not of itself necessarily imply a prohibition upon the States to exercisethe like power. The full sphere of federal powers may, at the discretion ofCongress, be occupied or not, as the wisdom of that body may determine. If notfully occupied, the States may in some instances legislate within the samesphere, subject, however, to any subsequent legislation that Congress mayadopt. It is not the mere existence of the national power, but its exercise,which is incompatible with the exercise of the same power by theStates.[2] The power of the Federal government, said the writer inthe Federalist, would be exclusive "where the Constitution in express termsgranted an exclusive authority to the Union; where it granted, in one instance,an authority to the Union, and in another, prohibited the States fromexercising like authority; and where it granted an authority to the Union, towhich a similar authority in the States would be absolutely and totallycontradictory and repugnant."[3] In
[1] Golden v. Prince, 3 Wash. C. C. 313; Calderv. Bull, 3 Dall. 386; Ableman v. Booth, 21 How. 506; Tarble'sCase, 13 Wall. 397, 406.
[2] Sturges v. Crowninshield, 4 Wheat. 122, 196.
[3] Federalist, No. 32. "Whenever the terms in which a poweris granted to Congress, or the nature of the power, require that it should beexercised exclusively by Congress, the subject is as completely taken from theState legislatures as if they had been expressly forbidden to act." Marshall,C. J., in Sturges v. Crowninshield, 4 Wheat. 122.
some few instances it may be that the State and the Federal governmentcould occupy the same field concurrently and simultaneously. For example, thepower of Congress to levy taxes is not incompatible with a like power on thepart of the States.[1] In other instances the field of legislationmay be occupied by the State governments until the Federal government entersit. Such is the case with regard to bankrupt laws, the States being allowed tolegislate on the subject when Congress has not exercised thepower.[2] But where the nature of the power is such that it shouldbe exercised exclusively by the national government, the subject is completelytaken from the States.
Reserved Rights. In the incorporation in the Constitutionof a bill of personal rights and liberties by the first ten articles of theamendments, it was deemed important to declare in the ninth article that "theenumeration in the Constitution of certain rights shall not be construed todeny or disparage others retained by the people." The occasion for this articleis supposed to have been found in the apology of the Federalist for the absenceof a bill of rights in the Constitution as first adopted, where the writersuggested that such a bill might be dangerous, since it would contain variousexceptions to powers not granted, and on this very account would afford atolerable pretext to claim more than were granted.[3] Howeverunfounded such a fear might be, there could be no harm in affirming
[1] "Both may exist without interference, and if anyinterference should arise in a particular case, the question of supremacy wouldturn, not upon the nature of the power, but upon the supremacy of right in theexercise of the power in that case." Story, Com. § 438. With regard to thepunishment of certain crimes, the Supreme Court has said: "The same act orseries of acts may constitute an offence equally against the United States andthe State, subjecting the guilty party to punishment under the laws of eachgovernment." Cross v. North Carolina, 132 U. S. 131; Fox v. Ohio,5 How. 410, 433; Ex parte Siebold, 100 U. S. 371, 390.
[2] Ogden v. Saunders, 12 Wheat. 213; Butler v.Goreley, 146 U. S. 303
[3] Federalist, No. 84.
by this amendment the principle that constitutions are not made tocreate rights in the people, but in recognition of, and in order to preservethem, and that if any are specially enumerated and specially guarded, it isonly because they are peculiarly important or peculiarly exposed toinvasion.
The Territories. The Constitution was made for the States,not for Territories. It confers power to govern Territories, but in exercisingthis the United States is a sovereign dealing with dependent territoryaccording as in. its wisdom shall seem politic, wise, and just, having regardto its own interests as well as to those of the people of theTerritories.[1] It is believed, however, that the securities forpersonal liberty which are incorporated in the Constitution were intended aslimitations of its power over any and all persons who might be within itsjurisdiction anywhere, and that citizens of the Territories as well as citizensof the States may claim the benefit of their protection.
In this dependence of the Territories upon the central government thereis some outward resemblance to the condition of the American Colonies under theBritish Crown; but there are some differences which are important, and indeedvital. The first of these is that the territorial condition is understood underthe Constitution to be merely temporary and preparatory, and the people of theTerritories while it continues are assured of the right to create and establishState institutions for themselves so soon as the population shall be sufficientand the local conditions suitable; while the British colonial system containedno promise or assurance of any but a dependent government indefinitely. Thesecond is that
[1] American Ins. Co. v. Canter, 1 Pet. 511; Scottv. Jones, 5 How. 343; National Bank v. Yankton Co, 101 U. S. 129.It may exclude polygamists from the right of suffrage in the Territories.Murphy v. Ramsey, 114 U. S. 15. See on the government of the Territoriespost, Ch. VIII.
above given, that the people of the American Territories are guaranteedall the benefits of the principles of constitutional right which protect life,liberty, and property, and may defend them under the law, even as against theaction of the government itself; while in the Colonies these principles werethe subject of dispute, and, if admitted, would be within the control of anabsolute imperial legislature, which might overrule them at will. There is alsoa difference in respect to taxation, which, though not so striking, is stillimportant. The Territories levy their own taxes for all local purposes, andthey are never taxed separately for national purposes, but only as parts of awhole country, and under the same rules and for the same purposes as are theStates. Nor is it intended to realize from them any revenue for the nationaltreasury beyond what is expended by the United States in their interest.
Amendments. In the adoption of the Constitution provisionwas made for amendments to be made under regular forms, which should not onlygive to the people an easy method of removing any evils that might be found toexist in their institutions, and of keeping them in sympathy with theprevailing sentiments and desires of the people, but should take away allreasonable excuse for attempts at revolution by force. Two methods of amendmentwere provided for. First, by Congress two thirds of both housesassenting proposing amendments for ratification by the legislatures orby conventions of the States, which shall be valid to all intents and purposeswhen ratified by three fourths of the States; and second, by Congress onthe application of two thirds of the States calling a convention for proposingamendments, which when ratified in like manner shall be valid as aforesaid. Theonly restriction imposed on the power to amend is this: that "No State withoutit* consent shall be deprived of its equal suffrage in theSenate."[1] In theory, [1] Const., Art. V,
except as changes are so made, the Constitution is to remain the settledand definite law of the nation; meaning the same thing to-day, to-morrow, andforever; its written provisions, stipulations, and guaranties being subject tono such growth, amplification, and modification as inheres in the unwrittenconstitution of Great Britain.
But it is not in the nature of institutions to remain stationary,however they may be formulated and declared, especially when the government haswithin itself the power to determine its own jurisdiction, and to solve in itsown favor at discretion all questions of disputed authority. It has been trulysaid that " power, when it has attained a certain degree of energy andindependence, goes on generally to further degrees. But when below that degreethe direct tendency is to further degrees of relaxation, until the abuses ofliberty beget a sudden transition to an undue degree ofpower."[1] The government of the United States was below thedegree of self-protecting energy while the Articles of Confederationconstituted the bond of union, but it attained at a bound to due energy andindependence under the administration of Washington and Hamilton, while thejudiciary was in accord with their views, and if the period of relaxation evercame, its influence upon the authority asserted for the government was notgreat, and was only temporary. The principles that at one time applied thepower over commerce to the regulation of navigation,[2] at a laterday are found equally applicable to traffic and travel byrailroad,[3] and communication by telegraph[4] andtelephone;[5] and though these new applications of principle do notin the least depart from or enlarge former doctrines, they neverthelessstrengthen greatly the national power by the
[1] Madison, Life by Rives, ii 641.
[2] Gibbons v. Ogden, 9 Wheat 1.
[3] Railroad Co. v. Richmond, 19 Wall 584.
[4] Pensacola Tel Co v. West Un Tel Co, 96 U. S.1.
[5] In re Penn. Tel. Co., 48 N. J. Eq 91.
immensity of the interests it is thus invited to take under its control.So the authority to purchase territory at one time is found equal to theannexation of an independent State at another. The gradual energizing offederal authority has been accomplished quite as much by the course of publicevents as by the new amendments to the Constitution; and however careful everyFederal and State official and every citizen may be so to perform all politicalfunctions as to preserve under all circ*mstances the true constitutionalbalance of powers, and to sanction no unconstitutional encroachments, there canbe no question that the new interests coming gradually within the purview offederal legislation, and the increase in magnitude and importance of thosealready under federal control, must have a still further tendency in thedirection indicated.[1]
Majority Rule. Government in the United States and in theseveral States, in all its grades, is representative; the body of the peopleperforming very few acts directly, except that of adopting the Constitution.When they act directly, the result of their will must be ascertained by suchpreponderating vote as the law shall prescribe. This may be a majority vote, orit may be merely the vote in which the largest number of electors agree. Indetermining upon a majority or plurality, those only are counted who actuallyparticipated in the election, except in a few cases where by someconstitutional provision an actual majority of all the electors isrequired.
American government is frequently spoken of as a government based onfaith in majorities, and the machinery of election as being provided merely toascertain what the will of the majority is. But the government is never handedover to the absolute control of the majority, and many precautions are taken toprevent its expressing exclusively their will: 1. In the Constitutionmany per-
[1] For a discussion of this subject see Bryce, AmericanCommonwealth, 3d Am. ed., vol. i, ch. xxxi.-xxxv.
manent rules are prescribed which control the majority absolutely, andwhich cannot be changed except by the slow process of constitutional amendment.2. The times and methods of election of legislative and executive officers areso contrived that in different branches of the government the majority of oneperiod will be restrained and checked by the majority of another, and it isscarcely possible that any considerable minority shall not have itsrepresentatives, and be entitled to be heard through them in the legislature,in ways that shall at least hold the majority to due accountability for theirconduct and measures. It must often be the case that one house of thelegislature will represent the views of a popular majority, and the other thoseof a minority only; but for all purposes of enacting laws, the latter has asmuch authority as the former. 3. The electoral system is so contrived that thePresident is sometimes chosen by a minority of the people; but unless amajority is overwhelming, he may generally defeat its measures by his veto. 4.All the safeguards which under kingly government were ever interposed againstthe tyrannical power of rulers are incorporated in the bills of rights in theAmerican constitutions as absolute limitations laid on the power of themajority for the protection of the liberty, property, privileges, andimmunities of the minority, and of every individual citizen; and the judiciaryis given a power to enforce these limitations, irrespective of the will orcontrol of the legislature, such as it has never possessed in any othercountry. So far then from the government being based on unlimited confidence inmajorities, a profound distrust of the discretion, equity, and justice of theirrule is made evident in many precautions and checks, and the majority is infact trusted with power only so far as is absolutely essential to the workingof republican institutions.[1]
[1] See the discussion in Boutmy, Const. Law (Englishtranslation), p. 110.
Instruction of Representatives. The care taken to imposerestraints on the action of temporary majorities is sufficient to demonstratethe want of constitutional basis for the opinion that representatives are boundto obey the instructions of their constituents from time to time communicatedto them. But it would be conclusive also against such an opinion, that nomethod is provided, or is available, by means of which instructions can beauthoritatively given. A representative in Congress is chosen by popular vote,at an election of which all must take notice; but there is no machinery forgathering the voice of all electors again until the next general election, andit is then gathered only in the ballots which express a choice betweencandidates. Between the elections the constituents may speak through the pressand by petitions, but these are not authoritative, and it can seldom be knownfrom such expressions what is the popular will. Senators sometimes considerthemselves bound to respect and obey the instructions of State legislatures;but these are composed only of delegates of the people, and they may representthe sentiments of the constituency no more than the senator himself.
But aside from practical difficulties, the right to instructrepresentatives cannot on principle be sustained. Representatives are chosen inStates and districts; but when chosen they are legislators for the wholecountry, and are bound in all they do to regard the interest of the whole.Their own immediate constituents have no more right than the rest of the nationto address them through the press, to appeal to them by petition, or to havetheir local interests considered by them in legislation. They bring with themtheir knowledge of local wants, sentiments, and opinions, and may enlightenCongress respecting these, and thereby aid all the members to act wisely inmatters which affect the whole country; but the moral obligation to considerthe interest of one part of the country as much as that of another, and tolegislate with a
view to the best interests of all, is obligatory upon every member, andno one can be relieved from this obligation by instructions from any source.Moreover, the special fitness to legislate for all, which is acquired by theassociation, mutual information, and comparison of views of a legislative body,cannot be had by the constituency, and the advantages would be lost tolegislation if the right of instruction were recognized.
CHAPTER III.
DISTRIBUTION OF THE POWERS OF GOVERNMENT
Necessity of Separation of Powers. When all the powers ofsovereignty are exercised by a single person or body, who alone makes laws,determines complaints of their violation, and attends to their execution, thequestion of a classification of powers can have only a theoretical importance,for the obvious reason that nothing can depend upon it, which can havepractical influence upon the happiness and welfare of the people. But inasmuchas a government with all its powers thus concentrated must of necessity be anarbitrary government, in which passion and caprice is as likely to dictate thecourse of public affairs as a sense of right and justice, it is a maxim inpolitical science that, in order to the due recognition and protection ofrights, the powers of government must be classified according to their nature,and each class intrusted for exercise to a different department of thegovernment. This arrangement gives each department a certain independence,which operates as a restraint upon such action of the others as might encroachon the rights and liberties of the people, and makes it possible to establishand enforce guaranties against attempts at tyranny. We thus have the checks andbalances of government, which are supposed to be essential to freeinstitutions.
Classification. The natural classification of governmentalpowers is into legislative, executive, and judicial. The legislative power isthe power to make laws and to alter them at discretion; the executive power isthe power
to see that the laws are duly executed and enforced; the judicial poweris the power to construe and apply the law when controversies arise concerningwhat has been done or omitted under it. Legislative power therefore dealsmainly with the future, and executive power with the present, while judicialpower is retrospective, dealing only with acts done or threatened, promisesmade, and injuries suffered.[1] The line of division is neverthelesssomewhat indefinite, since in many cases the legislature may designate theagents for the execution of its enactments, and the judiciary is expected toenforce the law in such controversies as are brought before it; while theexecutive and the judiciary may respectively make rules which are in the natureof laws, for the regulation of its own course in the discharge of its duties.There are then powers strictly legislative, others strictly executive, andothers strictly judicial; while still other powers may be exercised by onedepartment or by another, according as the law may provide. For illustrationthe case may be taken of rules for regulating the practice of courts, which aresometimes made by the legislature and sometimes by the courts; and also thecase of the appointment of officers and agents, subordinate to the chiefexecutive, to see to the enforcement of the laws; which can be made by lawexcept as the Constitution has conferred the power upon theexecutive.[2] And whenever a power is not distinctly eitherlegislative, executive, or judicial, and is not by the Con-
[1] Wayman v. Southard, 10 Wheat 1, 46; Balesv. Chapman, 2 Chip. (Vt ) 77; Greenough v. Greenough, 11 Penn. St489, Jones v. Perry, 10 Yerg (Tenn ) 59; Shumway v. Bennett, 29Mich. 451; Taylor v. Place, 4 R I 324; Ex parte Burns, 1 Tenn Ch 83
2 Field v. People, 3 Ill 80, Bridges v. Shallcross, 6 W Va562; People v. Freeman, 80 Cal 233, People v. Osborn, 7 Col 605.The legislature may create a board of civil service commissioners who shallprescribe the qualifications of all officers except those provided for in theConstitution Opinion of Justices, 138 Mass 601. In Indiana legislative power toprescribe the manner of appointing does not empower the legislature to appoint.State v. Denny, 118 Ind 449.
stitution distinctly confided to a department of the governmentdesignated, the mode of its exercise, and the agency, must necessarily bedetermined by law; in other words, must necessarily be under the control of thelegislature.[1]
But when a department is created for the exercise of judicial authority,the act itself constitutes a setting apart to it for exercise of the wholejudicial power of the sovereignty with such exceptions only as the Constitutionitself may make.[2] As therefore the determination of a controversyon existing facts where there are adverse interests is judicial action, the actis not within the compass of legislation; neither is the setting aside ofjudgments and granting of new trials;[3] nor the opening ofcontroversies after remedy under the general law is gone;[4] nor, itseems, the giving of an appeal after the time allowed by law hasexpired,[5] though as to this last there are decisionscontra.[6] Neither can the legislature bind partiesinterested by a recital of facts, or prescribe conclusive rules of evidence,for either of these would be only an indirect method of disposing ofcontroversies.[7] These
[1] Calder v. Bull, 3 Dall. 386.
[2] Greenough v. Greenough, 11 Penn. St. 489;Alexander v. Bennett, 60 N. Y. 204; Van Slyke v. Ins. Co., 39Wis. 390; Risser v. Hoyt, 53 Mich. 185; In re Cleveland, 51 N. J. L.311. Courts established by the legislature cannot exercise jurisdiction to theexclusion of that
conferred by the Constitution on other courts. Montross v. State,61 Miss. 429. But if the Constitution does not distribute the judicial power,the legislature has the power to distribute it. Com. v. Hippie, 69 Penn.St. 9; State v. Brunswick, 42 N. J. L. 51.
[3] Lewis v. Webb, 3 Me. 326; Dorsey v. Dorsey,37 Md. 64; Oliver v. McClure, 28 Ark 555; Hooker v. Hooker, 18Miss. 599.
[4] Bradford v. Brooks, 2 Aik. (Vt) 284; Brentv. Chapman, 5 Cranch, 358; Leffingwell v. Warren, 2 Black,599.
v Hill v. Sunderland, 3 Vt. 507; Burch v. Newberry,10 N. Y. 374. See Carleton v. Goodwin's Executor, 41 Ala. 153.
[6] Prout v. Berry, 2 Gill (Md.), 147; Page v.Mathew's Admr., 40 Ala. 547; Wheeler's Appeal, 45 Conn. 306. To take away astatutory right of appeal is not an exercise of judicial authority. Ex parteMcCardle, 7 Wall. 506.
[7] Parmelee v. Thompson, 7 Hill (N. Y.), 77; Lothropv. Stedman,
cases will sufficiently suggest the proper rule of decision forothers.[1]
The Departments of Government. The Constitution of theUnited States creates three departments of government, and directly or byimplication determines their powers.
The Legislature. All the legislative powers granted by theConstitution are vested in a Congress consisting of a Senate and House ofRepresentatives,[2] subject to a qualified veto in thePresident.
The House of Representatives is composed of members chosen every secondyear by the people of the several States, and the electors in each State musthave the qualifications requisite for electors of the most numerous branch ofthe State legislature.[3] Each State will determine for itself whatthese qualifications shall be.
No person can be a representative who has not attained the age oftwenty-five years, and been seven years a citizen of the United States, or whoat the time is not an inhabitant of the State in which he ischosen.[4]
Representatives are apportioned among the States according to theirrespective numbers, counting the whole number of persons in each State,excluding Indians not taxed.[5]
The Senate is composed of two senators from each State, chosen by thelegislature thereof for six years, and divided into three classes, so that oneclass is chosen every second year. If vacancies happen, by resignation orotherwise, during the recess of the legislature of any State, the ex-
42 Conn. 583, 592; McCready v. Sexton, 29 Iowa, 356; Groesbeckv. Seeley, 13 Mich. 329.
[1] In Cooley, Const. Lim, ch. 5, is a large collection ofauthorities on this general subject.
[2] Const., Art. I. § 1. [3] Const., Art. I.§ 2.
[4] Const., Art. I. § 2, cl. 2. It is not necessary thata representative should be a resident of the district from which he may beelected.
[5] Const. Amendment 14, § 2. Note the qualification inthe latter part of the section.
ecutive thereof may make temporary appointments until the next meetingof the legislature, which shall then fill such vacancies.[1]
No person shall be a senator who shall not have attained the age ofthirty years and been nine years a citizen of the United States, and who shallnot, when elected, be an inhabitant of the State from which he shall bechosen.[2]
The House chooses its own Speaker, and other officers.[3] TheVice-President of the United States is President of the Senate, but without avote except in case of equal division. The Senate chooses its other officers,and also a President pro tempore in the absence of the Vice-President,or when he shall exercise the office of President.[4]
The times, places, and manner of holding elections for senators andrepresentatives shall be provided in each State by the legislature thereof; butCongress may at any time by law make or alter such regulations, except as tothe place of choosing senators.[5]
It is provided by law that representatives in Congress shall be chosenin single districts;[6] and that the elections shall take place onthe Tuesday next after the first Monday of November.[7] Vacanciesare filled as may be provided by State laws.[8] All votes forrepresentatives in Congress must be by written or printed ballot, and all votesreceived or recorded contrary to this provision are of noeffect.[9]
For the election of senators it is provided that the legislature of eachState which is chosen next preceding the expiration of the time for which anysenator was elected to represent such State in Congress, shall, on the secondTuesday after the meeting and organization thereof, proceed to elect asenator.[10] If an election fails to be made the first day, at leastone vote is required to be taken
[1] Const., Art. I. § 3.
[2] Const., Art I. § 3.
[3] Const., Art V. § 2.
[4] Const., Art I. § 3. [5] Const., Art. I.§ 4.
[6] Rev. Stat. U. S., § 23. [7] Rev. Stat. U.S., § 25.
[8] Rev. Stat. U. S., § 26.
[9] Rev. Stat. U. S., § 27.
[10] Rev. Stat. U. S., § 14.
every day thereafter, during the session of the legislature, until asenator is chosen.[1] An existing vacancy is filled at the same timeand in the same way;[2] and a vacancy occurring during the sessionis filled by election, the proceedings for which are had on the second Tuesdayafter the legislature has organized and has notice of suchvacancy.[3]
When Congress convenes, the President of the Senate administers the oathto its members,[4] and takes charge of the organization. The clerkof the next preceding House of Representatives makes a roll of therepresentatives elect, and places thereon the names of those persons, and ofthose only, whose credentials show that they were regularly elected inaccordance with the laws of their States respectively, or the laws of theUnited States.[5] In case of vacancy in the office of clerk, or ofhis absence or disability, the sergeant-at-arms of the next preceding houseperforms this duty; and, in turn, it may devolve upon the doorkeeper in case ofvacancy in the office of sergeant-at-arms, or his absence ordisability.[6] The clerk acts as temporary presiding officer of theHouse until a Speaker is chosen. The Senate is supposed to have a presidingofficer at all times.
Each house is judge of the elections, returns, and qualifications of itsown members, and may determine the rules of its proceeding,[7]punish its members for disorderly behavior, and, with the concurrence of twothirds, expel a member.[8] Each house shall also keep a journal ofits
[1] Rev. Stat. U. S., § 15. [2] Rev. Stat. U.S., § 16. [3] Rev. Stat. U. S., § 17
[4] Rev. Stat. U. S., § 28. [5] Rev. Stat. U.S., § 31. [6] Rev. Stat. U. S., §§ 32, 33.
[7] The House may pass a rale providing that the names ofmembers present but not voting may be noted by the clerk, reported to theSpeaker, and counted in determining the presence of a quorum. United Statesv. Baffin, 144 U. S. 1.
[8] This is a power that by common parliamentary law wouldexist without being expressly conferred. It is "a necessary and incidentalpower to enable the house to perform its high functions, and is neces-
proceedings,[1] and from time to time publish the same,excepting such parts as in their judgment may require secrecy, and the yeas andnays of the members of either house on any question shall, at the demand of onefifth of those present, be entered on the journal.[2]
A majority of each house constitutes a quorum to do business, but asmaller number may adjourn from day to day, and compel attendance of absentmembers. But neither house during the session of Congress shall without theconsent of the other adjourn for more than three days, nor to any other placethan that in which the two houses shall be sitting.[3]
Senators and representatives are paid by the United States acompensation determined by law.[4] They also, in all cases excepttreason, felony, and breach of the peace, are privileged from arrest duringtheir attendance at the sessions of their respective houses, and in going toand returning from the same; [5] and for any speech or debate
sary to the safety of the State. It is a power of protection." And amember may be expelled for misconduct when away from the house on duty as acommittee-man, as well as for misconduct during its sessions. Hiss v.Bartlett, 3 Gray (Mass.), 468. But if the house exceeds its authority in anattempted investigation, a person cannot be punished for contempt in refusingto answer before the investigating committee of the house. Kilbourn v.Thompson, 103 U. S. 168. See In re Chapman, 166 U. S. 661.
[1] Whether expunging a resolution, as was done by the Senatein the case of the resolution of censure of General Jackson, is not a violationof this provision, was much discussed in that case. Benton, Thirty Years' View,ch. 159-161; Webster's Speeches, iv. 259. If there is a variance between anenrolled act and the journal of Congress, the former will be held by the courtsto be the unimpeachable law. Field v. Clark, 143 U. S. 649. The rule isdifferent regarding State acts in some of the States. See cases cited, Ibid ,pp. 661-666; and also Harwood v. Wentworth, 162 U. S. 547.
[2] Const., Art. I. § 5. [3] Const., Art. I.§ 5.
[4] Const., Art. I. § 6.
[5] Const., Art. I. § 6. Holiday v. Pitt, 2Strange, 985; Hoppin v. Jenckes, 8 R. I. 453. This privilege is that ofthe house to enable it to perform its functions with the aid of all itsmembers, but it is also
In either house they shall not be questioned in any otherplace.[1]
All bills for raising revenue must originate in the House ofRepresentatives, but the Senate may propose or concur withamendments.[2] All other bills may originate indifferently in eitherhouse, and any member of either house may introduce bills under its rules.
No senator or representative shall, during the time for which he waselected, be appointed to any civil office under the authority of the UnitedStates which shall have been created, or the emoluments whereof shall have beenincreased, during such time; and no person holding any office under the UnitedStates shall be a member of either house during his continuance inoffice.[3]
The Veto Power. The power to veto legislation, which isconferred upon the President, makes him in effect a third branch of thelegislature. The power is legislative, not executive, and the questionspresented to his mind are precisely the same as those the two houses ofCongress must determine in passing a bill. Whether the proposed law isnecessary or expedient, whether it is constitutional, whether it is so framedas to accomplish its
the privilege of the people, as well as of the member himself. Coffinv. Coffin, 4 Mass. 1.
[1] Const., Art. I. § 6. It is held in England that theprivilege does not extend to the publishing by the member of his speeches TheKing v. Creevey, 1 M. & S. 273; The King v. Abingdon, 1 Esp.226. Compare Davison v. Duncan, 7 El. & Bl. 229. But in thiscountry, where all debates are published by authority of law, the rule, weshould say, must at least cover the official publication. But the privilege isconfined strictly to what is said in the house or in committee in the dischargeof legislative duty. Coffin v. Coffin, 4 Mass. 1.
[2] Const., Art. I. § 7. In this provision isincorporated a principle of the English constitution, which requires allrevenue bills to originate in the House of Commons. As to what are revenuebills, see May, Const. Hist., ch. 7. The subject was much considered in debatesin Congress in the year 1872. See also Twin City Bank v. Nebeker, 167 U.S. 196.
[3] Const., Art. I. § 6
intent, and so on, are questions transferred from the two houses to thePresident with the bill itself.
The Executive. The executive power is vested in aPresident, who holds his office during a term of four years, and, together witha Vice-President, chosen for the same term, is elected by electors appointed inthe several States for the purpose.[1] The State legislatures haveexclusive authority to determine the mode of choosing electors.[2]No person except a natural-born citizen, who has been fourteen years a residentwithin the United States, and has attained the age of thirty-five, is noweligible to the office of President[3] or ofVice-President.[4]
In case of the removal of the President from office, or his death,resignation, or inability to discharge its powers and duties, the same devolveson the Vice-President, and Congress may by law provide for the case of removal,death, or resignation, or inability both of the President and Vice-President,declaring what officer shall then act as President until the disability beremoved or a President elected.[5]
The Judiciary. The Constitution provides that the judicialpower of the United States shall be vested in one Supreme Court, and in suchinferior courts as Congress
[1] Const., Art. II. § 1; Amendment 12. The manner ofmaking choice, where no candidate has a majority of electoral votes, isexplained by this amendment.
[2] McPherson v. Blacker, 146 U. S. 1.
[3] Const., Art. II. § 1. [4] Const.,Amendment 12.
[5] Const., Art. II. §1. If the Vice-President becomesacting President, he holds for the full term. Congress has provided by law thatin case of removal, death, resignation, or inability of both the President andVice-President, the office shall devolve upon one of his constitutionaladvisers in the following order: Secretary of State, Secretary of the Treasury,Secretary of War, Attorney-General, Postmaster-General, Secretary of the Navy,Secretary of the Interior. But the officer must be one who has been confirmedby the Senate, and who is constitutionally eligible to the office of President.He will hold until the disability is removed, or until the office is filled atthe regular election. Act of 1886, 24 Stat. at Large, 1.
may from time to time ordain and establish.[1] The judgesboth of the Supreme and inferior courts hold their offices during goodbehavior. As the Constitution does not determine the number of the judges ofthe Supreme Court, the number may be changed at pleasure, except that it cannotbe diminished so as to deprive a judge of his office. The other courts exist atthe will of Congress, and may be changed and modified at discretion, subject toa like limitation that a judge cannot be legislated out of his office while theoffice itself remains.[2]
In a time of war, when portions of hostile territory are in the militaryoccupation of federal forces, the President as commander-in-chief may appointprovisional courts for the determination of controversies within suchterritory, and the administration of justice.[3] But such courts,established on foreign soil, are mere agents of the military power to assist inpreserving order and protecting the inhabitants in their persons and property;and they cannot adjudicate upon questions of prize, or decide upon the rightsof the United States or of individuals.[4]
The territorial courts are not created by Congress under , the powerconferred by the articles above referred to, but in the exercise of the generalsovereignty of the United States over the territory it may possess. The judgesof such courts may therefore be appointed for definite terms, removable by thePresident.[5]
Upon judges as such no functions can be imposed except those of ajudicial nature. They cannot therefore be
[1] Const., Art. III. § 1. The power "to constitutetribunals inferior to the Supreme Court" is conferred upon Congress by ArticleI. § 8, cl. 9.
[2] The legislative precedent is in favor of the power inCongress to indirectly deprive judges of their offices by abolishing courts.Reference is here made to the abolition of District Courts when Mr. Jeffersonbecame President. There are State precedents of the same sort.
[3] Jecker v. Montgomery, 13 How. 498; The Grape Shot,9 Wall. 129 See Edwards v. Tanneret, 12 Wall. 446. [4] Jeckerv. Mongomery, 13 How. 498. [5] American Ins. Co. v.Canter, 1 Pet. 511
required to act as commissioners to determine questions subject to theconsideration and supervision of Congress or of an executiveofficer;[l] or to make or review as appraisers the assessments thathave been made of property for taxation;[2] nor can they by virtueof equity powers appoint officers to assess and collect taxes frommunicipalities, even to pay judgments against such municipalities, standing ontheir own records;[3] nor can they determine whether territory shallbe incorporated as a village.[4] When judicial authority isconferred by law upon a court, it must be exercised by the judges sitting andorganized as a court, and not by the judge out of court.[5]
[1] Note to Hayburn's Case, 2 Dall. 409; United Statesv. Ferreira, 13 How. 40. The remark in the text has no reference tocourts like the Court of Claims, which, being a tribunal created to considerdemands against the government, may have its authority restricted to any extentthat seems wise.
[2] Auditor of State v. Railroad Co., 6 Kans. 500;Munday v. Rahway, 43 N. J. L. 338. In Massachusetts it has been heldthat courts cannot be empowered to appoint supervisors of election. Case ofSupervisors of Election, 114 Mass. 247.
[3] Rees v. Watertown, 19 Wall. 107; Heine v.Levee Commissioners, 1 Woods, 246; 19 Wall. 655.
[4] Shumway v. Bennett, 29 Mich. 451; State v.Simons, 32 Minn 540; Galesburg v. Hawkinson, 75 Ill. 152 But it is heldthat the propriety of bringing territory into a municipality by extending itslimits may be decided by a court, as being not purely a legislative question.Burlington v. Leebrick, 43 Iowa, 252; Wahoo v. Dickinson, 23 Neb.426.
[5] Note by the Chief Justice to United States v.Ferreira, 13 How. 52. A judge cannot be empowered to determine which claimantof an office is entitled to hold it during a contest. If such power isexecutive, it cannot be given to a judge; if judicial, it must be vested in acourt. In re Cleveland, 51 N. J. L. 311. But duties in connection with theadoption of children may be imposed by the legislature upon a judge withoutinvolving any exercise by him of judicial power. In re Stevens, 83 Cal.322.
CHAPTER IV.
THE POWERS OF CONGRESS.
National Powers. In any sovereign state, the lawmakingdepartment is the repository of most power, and it is also the most immediaterepresentative of the sovereignty. Not that the others are subordinate withintheir respective spheres, but the exercise of governmental authority beginswith the making of laws, and the other departments execute and administer whatthe law-making department enacts. For this reason the Constitution, inenumerating the powers which shall be exercised by authority of the generalgovernment, confers them in terms upon Congress. But this in legal effect isconferring them upon the United States, and by implication a correspondingexecutive and judicial power is also given, though to a large extent theexercise of these powers respectively is left to be provided for in thediscretion of Congress.
SECTION I. TAXES, LOANS, AND DEBTS.
The Power. In the specific enumeration of national powers,it is first declared that "The Congress shall have power to lay and collecttaxes, duties, imposts, and excises, to pay the debts, and provide for thecommon defence and general welfare of the United States; but all duties,imposts, and excises shall be uniform throughout the UnitedStates."[1] Thus a power is conferred which is essential to themaintenance of independent government, and the want of which was one of theprincipal causes of the failure of the Confederacy. The purposes for which
[1] Const., Art I. § 8, cl. 1.
the power may be exercised are also specified, but in such general termsthat they comprehend all the needs of government. The requirement of uniformityin the levy of duties, imposts, and excises is an important limitationto a power which otherwise might have been exercised partially andoppressively.
Definition. The word "taxes," in its most enlarged sense,embraces all the regular impositions made by government upon the person,property, privileges, occupations, and enjoyments of the people for the purposeof raising public revenue.[1] As duties, imposts, and excises arelaid or imposed for this purpose, they are in a strict sense taxes, and nodoubt might have been levied by the government under that designation, withoutbeing here specifically mentioned. But as the term "taxes" is sometimes used incontradistinction to these levies, it conduced to certainty to name themseparately. It was also a convenience in view of the special rule which wasprescribed for their levy. The terms "duties" and "imposts" are nearlysynonymous, and are usually applied to the levies made by government on theimportation or exportation of commodities, while the term "excises" is appliedto the taxes laid upon the manufacture, sale, or consumption of commoditieswithin the country, and upon licenses to pursue certainoccupations.[2]
Taxes are distinguished from arbitrary levies in that they are laidaccording to some rule which apportions the burden between the subjectsthereof. An exaction which is made without regard to any rule of apportionmentis therefore not a tax, and is not within the constitutional authority of thegovernment.[3]
[1] Montesq, Sp. of the L., b. 13, ch. 1; Perry v.Washburn, 20 Cal. 318, 350; Hilbish v. Catherman, 64 Penn. St. 154, 159;Loan Association v. Topeka, 20 Wall. 655, 664; Opinion of Judges, 58Maine, 590.
[2] Cooley on Taxation, 3
[3] Sutton's Heirs v. Louisville, 5 Dana (Ky.), 28-31;Grim v. School District, 57 Penn. St. 433.
The power to tax is an incident of sovereignty, and is coextensive withthe subjects to which the sovereignty extends. It is unlimited in its range,acknowledging in its very nature no limits, so that security against its abuseis to be found only in the responsibility of the legislature which imposes thetax to the constituency who are to pay it.[1] A people, however, inestablishing their constitution, and delegating to their representatives thispower, may impose at discretion limits to its exercise; and many effectivelimitations have been imposed in the constitutions of the States.
The Power Discretionary. As respects the kind oftax that shall be laid, or the subjects upon which it shall be imposed,every government will regulate its action according to its own view of whatwill best accomplish the end, and best subserve the general interest.Therefore, taxes may be levied upon either land or personalty to the exclusionof the other, or upon occupations in preference to either or both, or they maybe collected in the form of duties on imports or excises on domesticproductions. The United States for the most part has collected its revenuesfrom duties on imports, but at exceptional periods has levied taxes on land,occupations, manufactures, incomes, deeds and other contracts, and many othersubjects. The basis of apportionment in the case of imports and excises hassometimes been value, sometimes weight, quantity, or quality, and sometimesother standards, while upon deeds and contracts the apportionment has beenaccording to number or importance, and the tax has been collected by the saleof stamps. By the Constitution the United States is precluded from laying anytax or duty on articles exported from any State.[2] The requirementthat
[1] Veazie Bank v. Fenno, 8 Wall. 533, 548, McCullochv. Maryland, 4 Wheat. 316, 428 , Howell v. State, 3 Gill (Md.),14; People v. Brooklyn, 4 N Y. 419; Pullen v. Commissioners, 66N. C. 361; Tay lor v. Palmer, 31 Cal. 240; State v. Newark, 26 N.J. 519 , Williams v. Cammack, 27 Miss. 209, 219; Parham v.Justices, 9 Ga. 341, 352.
[2] Const., Art. I. § 9, cl. 5.
an article intended for exportation shall be stamped, to prevent fraudand secure the carrying out of the declared intent, is not laying a duty, eventhough a small charge is made for the stamp.[1] It would beotherwise if the stamp were required for the purpose ofrevenue.[2]
The Purposes. Constitutionally a tax can have no otherbasis than the raising of a revenue for public purposes, and whatevergovernmental exaction has not this basis is tyrannical and unlawful. A tax onimports, therefore, the purpose of which is, not to raise a revenue, but todiscourage and indirectly prohibit some particular import for the benefit ofsome home manufacture, may well be questioned as being merely colorable, andtherefore not warranted by constitutional principles. But if any income isderived from the levy, the fact that incidental protection is given to homeindustry can be no objection to it, for all taxes must be laid with some regardto their effect upon the prosperity of the people and the welfare of thecountry, and their validity cannot be determined by the money returns. Thisrule has been applied when the levy produced no returns whatever; it being heldnot competent to assail the motives of Congress by showing that the levy wasmade, not for the purpose of revenue, but to annihilate the subject of the levyby imposing a burden which it could not bear.[3] Practically,therefore, a law purporting to levy taxes, and not being on its face subject toobjection, is unassailable, whatever may have been the real purpose. Andperhaps even prohibitory duties may[] be defended as a regulation ofcommercial intercourse.
[1] Pace v. Burgess, 92 U. S. 372,
[2] Almy v. California, 24 How. 169.
[3] Veazie Bank v. Fenno, 8 Wall 533; National Bankv. United States, 101 U. S. 1. Mr. Justice Story, in his Commentaries onthe Constitution, asserts broadly that "the absolute power to levy taxesincludes the power in every form in which it may be used, and for every purposeto which the legislature may choose to apply it. It therefore includes thepower to levy protective duties, though the duties may in effect beprohibitory." Story on Const. § 965.
Levies for Private Purposes. Where, however, a tax isavowedly laid for a private purpose, it is illegal and void. The following areillustrations of taxes for private purposes. A tax levied to aid privateparties or corporations to establish themselves in business asmanufacturers;[1] a tax the proceeds of which are to be loaned outto individuals who have suffered from a great fire; [2] a tax tosupply with provisions and seed such farmers as have lost theircrops;[3] a tax to build a dam which at discretion is to be devotedto private purposes;[4] a tax to refund moneys to individuals whichthey have paid to relieve themselves from an impending militarydraft;[5] and so on. In any one of these cases the public may beincidentally benefited, but the incidental benefit is only such as the publicmight receive from the industry and enterprise of individuals in their ownaffairs, and will not support exactions under the name of taxation.
But, primarily, the determination what is a public purpose belongs tothe legislature, and its action is subject to no review or restraint so long asit is not manifestly colorable. All cases of doubt must be solved in favor ofthe validity of legislative action, for the obvious reason that the question islegislative, and only becomes judicial when there is a plain excess oflegislative authority. A court can only arrest the proceedings, and declare alevy void,
[1] Loan Association v. Topeka, 20 Wall. 655, 663;Cole v. La Grange, 113 U. S. 1; Alien v. Jay, 60 Me. 124; Matherv. Ottawa, 114 Ill. 659.
[2] Lowell v. Boston, 111 Mass. 454; Feldman v.Charleston, 23 S. C. 57.
[3] State v. Osawkee, 14 Kans. 418.
[4] Attorney General v. Eau Claire, 37 Wis. 400.
[5] Tyson v. School Directors, 51 Penn. St 9; Crowellv. Hopkinton, 45 N. H. 9; Usher v. Colchester, 33 Conn. 567;Freeland v. Hastings, 10 Alien (Mass.), 570; Miller v. Grandy, 13Mich. 540. It has been held that the legislature may constitutionally authorizecities to subscribe to the stock of railroads and to tax their citizens to paysuch subscriptions. See Taylor v. Ypsilanti, 105 U. S. 60. But there areauthorities which dispute the soundness of this ruling. On this subject seeCooley, Const. Lim., 6th ed., 264, 273.
when the absence of public interest in the purpose for which the fundsare to be raised is so clear and palpable as to be perceptible to any mind atfirst blush.[1]
But sometimes the public purpose is clear, though the immediate benefitis private and individual. For example, the government promises and paysbounties and pensions; but in every case the promise or payment is made on aconsideration of some advantage or service given or rendered, or to be given orrendered, to the public, which is supposed to be an equivalent; and the law forthe payment has in view only the public interest, and does not differ inprinciple or purpose from a law for the payment of salaries to public officers.The same is true where a State continues the payment of salaries to officerswho have become superannuated in its service. The question whether they shallbe paid is purely political, and resolves itself into this: whether the Statewill thereby probably secure better and more valuable service, and whethertherefore it would be wise and politic for the State to give the seemingbounty.[2]
Where a law for the levy of a tax shows on its face the purpose tocollect money from the people and appropriate it to some private object, theexecution of the law may be resisted by those of whom the exaction is made, andthe courts, if appealed to, will enjoin collection, or give remedy in damagesif property is seized. But if a tax law on its face discloses no illegality,there can in general be no such remedy. Such is the case with the taxes leviedunder authority of Congress; they are levied without any specification ofparticular purposes to which the collections shall be devoted, and the factthat an intent exists to misapply some portion of the revenue producedcannot
[1] Broadhead v. Milwaukee, 19 Wis. 624, 652; Cheaneyv. Hooser, 9 B. Monr. (Ky.) 330, 345; Booth v. Woodbury, 32 Conn.118, 128; Hammett v. Philadelphia, 65 Penn. St. 146; Tide Water Co.v. Coster, 18 N. J. Eq. 518.
[2] Cooley on Taxation, 2d ed., 111.
be a ground of illegality in the tax itself. In cases arising in localgovernment, an intended misappropriation may sometimes be enjoined; but thiscould seldom or never happen in case of an intended or suspectedmisappropriation by a State or by the United States, neither of them beingsubject to the process of injunction. The remedies for such cases are thereforepolitical, and can only be administered through theelections.[1]
Taxation of Government Agencies. The power to tax, whetherby the United States or by the States, is to be construed in the light of, andlimited by, the fact, that the States and the Union are inseparable, and thatthe Constitution contemplates the perpetual maintenance of each with all itsconstitutional powers, unembarrassed and unimpaired by any action of the other.The taxing power of the Federal government does not therefore extend to themeans or agencies through or by the employment of which the States performtheir essential functions, since, if these were within its reach, they might beembarrassed, and perhaps wholly paralyzed, by the burdens it should impose."That the power to tax involves the power to destroy; that the power to destroymay defeat and render useless the power to create; that there is a plainrepugnance in conferring on one government a power to control theconstitutional measures of another, which other, in respect to those verymeasures, is declared to be supreme over that which exerts the control, are propositions not to be denied."[2] It is true that taxation doesnot necessarily and unavoidably destroy, and that to carry it to the excess ofdestruction would be an abuse not to be anticipated; but the very power wouldtake from the States a portion of their intended liberty of independent actionwithin the sphere of their powers, and would constitute to the State aperpetual danger of embarrassment and possible annihilation. The Constitutioncontemplates no such
[l] Cooley on Taxation, 2d ed., 701, 724, 823. [2]McCulloch v. Maryland, 4 Wheat. 316, 431.
shackles upon State powers, and by implication forbids them.
The United States, therefore, cannot tax a State municipal corporationor its resources,[1] or the salary of a State officer,[2]or the process of State courts,[3] or a railroad owned by aState,[4] and so on.[5] And on the other hand a Statecannot tax the salary or emoluments of federal officers,[6] or thebonds or other securities issued under the power to borrow money on the creditof the United States,[7] or the revenue stamps or treasury notesissued by the United States,[8] or a bank created by the UnitedStates as its fiscal agent,[9] or the franchises of a corporationcreated by the United States, except with the consent ofCongress,[10] and so on. But the sovereignty whose means or agenciesof government would be affected by the tax might render it lawful by itsassent, as has been done in some cases. The fact that the general governmenthas chartered and brought into existence a corporation with stipulations in thecharter whereby the United States may have certain benefits from its use, doesnot exempt its property from State taxation,[11] butrestrictions
[1] United States v. Railroad Co., 17 Wall. 322.
[2] The Collector v. Day, 11 Wall. 113.
[3] Warren v. Paul, 22 Ind. 276; Moore v.Quirk, 105 Mass. 49; Union Bank v. Hill, 3 Cold. (Tenn.) 325.
[4] Georgia v. Atkins, 1 Abb. U. S. 22.
[5] Ward v. Maryland, 12 Wall. 418, 427; Statev. Gustin, 32 Ind. 1; Sayles v. Davis, 22 Wis. 225.
[6] Dobbins v. Commissioners, 16 Pet. 435.
[7] Weston v. Charleston, 2 Pet. 442; Bank Tax Case, 2Wall. 200.
[8] Palfrey v. Boston, 101 Mass. 329; Montgomeryv. Elston, 32 Ind. 27; The Bank v. The Supervisors, 7 Wall. 26.But taxation cannot be evaded by putting taxable funds temporarily into UnitedStates notes just before the time for assessment. Shotwell v. Moore, 129U. S. 590.
[9] McCulloch v. Maryland, 4 Wheat. 316, 368; Osbornv. Bank of United States, 9 Wheat. 738. See United States v.Railroad Co., 17 Wall. 322.
[10] California v. Pacific R. R. Co., 127 U. S. 1.
[11] Railroad Co. v. Peniston, 18 Wall. 5; CentralPacific Ry. Co. v.
to prevent unjust discriminations might be imposed, as has been done inthe case of the existing national banks.
Land of the United States lying within a State is not taxable by theState.[1] If such land has been bought, or taken up, by anindividual, it is not subject to State taxation so long as something remains tobe done by the individual to perfect his right to a patent from the UnitedStates.[2] If, however, his right to the patent is complete and theUnited States holds a naked legal title, the land is really private property,and may be taxed by the State.[3]
Direct Taxes. It is provided in the Constitution thatdirect taxes shall be apportioned among the States according to theirrepresentative population.[4] What was meant by direct taxes in thisprovision is not entirely clear. Taxes are usually classed as direct when theyare assessed upon the persons, property, business, income, &c. of those whoare to pay them, and as indirect when they are levied on commodities beforethey reach the consumer, and are paid by those upon whom they ultimately fall,not as taxes, but as a part of the market price of the commodity.[5]But whether the term "direct taxes," as used in the Constitution, is to begiven this meaning has been a matter of considerable discussion. In an earlycase,[6] it was decided that a tax upon carriages kept for use wasnot a direct tax. In this case Justice Chase said: "I am inclined to think, butof this I do not give a judicial opinion, that the direct taxes contemplated bythe Constitution are
California, 162 U. S. 91. A railroad corporation chartered by Congressmay be subject to reasonable regulations by a State. Reagan v.Mercantile Trust Co., 154 U. S. 413.
[1] Van Brocklin v. Tennessee, 117 U. S. 151.
[2] Railway Co. v. McShane, 22 Wall. 444; WisconsinCentr. R. R. Co. v. Price Co., 133 U. S. 496.
[3] Deffeback v. Hawke, 115 U. S. 392; WisconsinCentr. R. R Co. v. Price Co., 133 U. S. 496.
[4] Const., Art. I. § 2. See Art. I. § 9, cl.4.
[5] 1 Kent, 254; Story on Const., §§ 950-957.[6] Hylton v. United States, 3 Dall. 171.
only two, to wit: a capitation or poll tax ... and a tax on land." At alater time it was decided that a tax on the business of an insurance companywas not a direct tax,[1] and the same ruling was made in the case ofa tax on the circulation of banks,[2] a successiontax,[3] and a tax on private incomes.[4] In deciding allof these cases, the court gave great weight to the proposition that onlycapitation and land taxes are direct. But in 1895 the Supreme Court declaredthat a tax upon income from either personal or real property isdirect.[5] As the law now stands, therefore, the following aredirect taxes: a capitation tax, a tax on real estate, on the income from realestate, on personal property, and on the income from personal property.
Collection. The power to tax includes the power to makeuse of all customary and usual means to enforce payment. But legislation mustprescribe these means and give full directions for their employment, and it isessential to the validity of the proceedings that the statute in all essentialparticulars shall be followed.[6]
Borrowing Money. Congress is also empowered to borrowmoney on the credit of the United States.[7] This power may beexercised directly, in the usual mode, but
[1] Pacific Ins. Co. v. Soule, 7 Wall. 433.
[2] Veazie Bank v. Fenno, 8 Wall. 533.
[3] Scholey v. Rew, 23 Wall. 331.
[4] Springer v. United States, 102 U. S. 586.
[5] In this case the court was divided and there was strongdissent The scope of the decision is shown by the following words: "We haveconsidered the act only in respect to a tax on income derived from real estate,and from invested personal property, and have not commented on so much of it asbears on gains or profits from business, privileges, or employments, in view ofthe instances in which taxation on business, privileges, or employments hasassumed the guise of an excise, and been sustained as such." Pollock v.Farmers' Loan and Trust Co., 158 U. S. 601, 635.
[6] Stead v. Course, 4 Cranch, 403; Williams v.Peyton, 4 Wheat. 77; Parker v. Overman, 18 How. 137. [7]Const., Art. I. § 8, cl. 2.
the indirect method, of issuing government obligations for debts orservices, is equally admissible. And all such obligations are excepted from theState power to tax, since otherwise they might be so burdened with taxation asto render it impossible for the government to negotiate them atall.[1]
Public Faith and the Public Debt. In the Constitution itwas declared that "all debts contracted and engagements entered into before theadoption of this Constitution shall be as valid against the United States underthis Constitution as under the Confederation."[2] This was perhapsintended merely as a solemn assurance to public creditors and the world thatthe public faith should be inviolably kept by the United States under itschanged government; but it might have had a special significance and importancehad one or more of the States failed to adopt the Constitution. In that event,although the general rule would apply that a public corporation remains liablefor pre-existing debts notwithstanding the changes in its organization, or inits corporators, and notwithstanding any loss of territory, yet it would havebeen easy to raise cavils concerning it, had some States escaped the debt byrejecting the Union. It was therefore as politic as it was just to pledge theUnited States to the payment of the whole debt, that no one might be encouragedto raise questions respecting it afterwards. A like pledge was made in one ofthe amendments adopted after the close of the great civil war. It was thendeclared that "the validity of the public debt of the United States, authorizedby law, including debts incurred for payment of pensions and bounties forservices in suppressing insurrection or rebellion, shall not be questioned. Butneither the United States nor any State shall assume or pay any debt orobligation
[1] The "Banks v. The Mayor, 7 Wall. 16; The Bankv. The Supervisors, 7 Wall. 26. So of the premium on United States bondsPeople v. Com'r, 90 N. Y. 63.
[2] Const., Art. VI. cl. 1.
incurred in aid of insurrection or rebellion against the United States,or any claim for loss or emancipation of any slave; but all such debts,obligations, and claims shall be held illegal and void."[l] Theprohibitory portion of this provision was as unnecessary as the other for thepurpose of settling any principle. No nation can be expected to, or does, makecompensation for losses occasioned in war to its enemies. It might be said,however, that slave property of loyal and disloyal alike was destroyed by thegovernment under circ*mstances rendering the destruction equivalent to anappropriation, and that the equitable claim to compensation was such as shouldbe respected. But the prevailing view was that slavery was itself the cause ofthe civil war, with all its losses and calamities, and that its destruction wasthe destruction of a public enemy, and no just claim could arise from it. Theexample was therefore followed which was set at the Revolution, of making nocompensation for the incidental losses of the war; and this was made impossibleby expressly prohibiting it.
SECTION II. REGULATION OF COMMERCE.
The Constitution. It is further provided by theConstitution, that Congress shall have power "to regulate commerce with foreignnations, and among the several States, and with the Indiantribes."[2]
Commerce. The word commerce is not limited totraffic; to buying and selling and the exchange of commodities; but itcomprehends navigation also, and all that is included in commercial intercoursebetween nations and parts of nations in all its branches, and is regulated byprescribing rules for carrying on that intercourse.[3]
[1] Amendment 14. [2] Const., Art. I. § 8,cl. 3.
[3] Gibbons v.Ogden, 9 Wheat 1, 189; Passenger Cases,7 How. 288; Welton v. Missouri, 91 U. S. 275; Henderson v. NewYork, 92 U. S
Navigation and intercourse, therefore, upon the natural highways bywater is under the regulating control of Congress, wherever it is notexclusively limited to a single State.[1] So are transportation andintercourse by railroad between different parts of the country; and it istherefore competent for Congress to provide that all railroad compares maycarry passengers, mails, and property over their roads, boats, bridges, andferries, on their way from one State to another, and receive compensationtherefor, and may connect with other roads so as to form continuous lines forthe transportation of the same to their places of destination; also to providefor the construction of bridges over navigable rivers between States, and toprovide that the bridges when constructed shall be free for the crossing of alltrains of railroads terminating on the sides of the riversrespectively.[2] Congress may also regulate communication bytelegraph between the States, and where a State has given exclusive privilegeswhich would preclude free intercourse, it may under this power and the power toestablish post-offices and post-roads, provide for the construction ofcompeting lines. These powers "keep pace with the progress of the country, andadapt themselves to the new developments of times and circ*mstances. Theyextend from the horse with its rider to the stage-coach, from the sailingvessel to the steamboat, from the coach and the steamboat to the railroad, andfrom the railroad to the telegraph, as these new agencies are successivelybrought into use to meet the demands of increasing population and wealth. Theywere intended for the government of the business to which they relate, at alltimes and under all circ*mstances. As they were intrusted to the generalgovernment for the good of the nation, it is not only the right but the duty ofCongress
259; Pensacola Tel. Co. v. West, &c. Tel. Co , 96 U. S. 1, 9;Robbins v. Shelby Tax. Dist., 120 U. S. 489.
v Gibbons v. Ogden, 9 Wheat. 1.
[2] Railroad Co v. Richmond, 19 Wall. 584.
to see to it that intercourse among the States and the transmission ofintelligence are not obstructed or unnecessarily encumbered by Statelegislation."[1]
Commerce between States. To constitute commerce betweenStates it is essential that it be not confined to one State exclusively, butconcern more than one.[2] The ordinary trade of a State, the localbuying, selling, and exchange, the making of contracts and conveyances, therules for the regulation of local travel and communication, and all theinfinite variety of matters which are of local interest exclusively, are leftwholly to the regulation of State law. The commerce of a State which Congressmay control must in some stage of its progress be extra-territorial. It cannever include transactions wholly internal, between citizens wholly of the samecommunity, or extend to a polity and laws whose ends and purposes andoperations are restricted to the territory and soil and jurisdiction of suchcommunity. Nor can it be properly concluded, because the products of domesticenterprise in agriculture or manufactures or in the arts may ultimately becomethe subjects of commerce outside the State, that the control of the means orthe encouragements by which enterprise is fostered and protected is implied inthis important grant of power.[3] The Federal government may havethe
[1] Pensacola Tel. Co. v. Western, &c. Tel. Co.,96 U. S. 1, 9.
[2] Gibbons v. Ogden, 9 Wheat. 1, 189; The PassaicBridges, 3 Wall. 782. But a tax levied by a State on receipts fromtransportation carried on by a railroad between different points in the sameState is not an interference with interstate commerce, even though in thecourse of transportation the property passes without the limits of the Stateand back again. Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192.Compare Lord v. Steamship Co., 102 U. S. 541.
[3] Veazie v. Moor, 14 How. 568, 574. It is well saidin this case that "a pretension as far-reaching as this would extend tocontracts between citizen and citizen of the same State, would control thepursuits of the planter, the grazier, the manufacturer, the mechanic, theimmense operations of the collieries, the mines, and furnaces of the country;for there is not one of these avocations the results of which may not becomethe subjects of foreign commerce, and be borne,
power to suppress monopolies when they operate to control interstatetraffic; but a combination to control the production of an article onlyindirectly affects interstate commerce, and is not a subject for federallegislation.[1] Congress cannot legislate for the regulation ofcommerce on a stream whose navigable waters are exclusively within the limitsof a State, and which does not, by connecting with other waters, form acontinuous highway over which commerce is or may be carried on with otherStates or with foreign countries.[2] It is otherwise, however, witha river which, though wholly within a State, forms, with the lake into which itruns, a highway for interstate commerce; and the regulations may extend to thevehicles of commerce which are used upon the river exclusively, but delivermerchandise upon the vessels navigating the
lake.[3]
Commerce with Indian Tribes. It is immaterial to the powerof Congress over commerce with an Indian tribe that the tribe resides withinthe limits of a State.[4] The power of regulation may extend to theprohibition of all intercourse except that carried on underlicense,[5] and at the discretion of Congress the prohibition may nodoubt be made total.
either by turnpikes, canals, or railroads, from point to point withinthe several States, towards an ultimate destination."
[1] United States v. E. C. Knight Co., 156 U. S. 1. Inthis case the court interpreted the anti-trust law of 1890. The question waswhether the law was directed against such a combination as the sugar trust, andwhether under it persons resident in Pennsylvania could be enjoined from makinga combination with a New Jersey corporation. The court held that, in view ofthe general principles of interstate commerce law, the statute in question wasnot to be so interpreted.
[2] Veazie v. Moor, 14 How. 568.
[3] The Daniel Ball, 10 Wall. 557; Withers v. Buckley,20 How. 84; The Bright Star, 1 Woolw. 266; The Montello, 2 Wall. 430.
[4] United States v. Holliday, 3 Wall. 407; Worcesterv. Georgia, 6 Pet. 515; Johnson v. McIntosh, 8 Wheat. 543;Jackson v. Goodell 80 Johns. (N. Y.) 188.
[5] United States v. Cisna, 1 McLean, 254.
Embargo. At one notable period in the history of thecountry it was deemed wise to lay an embargo upon all commerce with GreatBritain and France, as a means of obtaining redress against unfriendly actionon their part, under which the commerce of the country was being seriouslycrippled. The embargo act was contested as unconstitutional. It was said thatit was not a regulation of commerce, but a total destruction of commerce, andtherefore not warranted by the power now under consideration. The act wasnevertheless sustained in the District Courts.[1] The purpose was toprotect and save commerce, not to destroy it. As an embargo is commonlyintended to be hurtful to another nation, and is likely to be followed byhostilities if redress is not obtained, it would seem to be justified under thewar power also. But the power that controls commerce must from the very natureof things include the power to restrict and limit, to prohibit as tocertain things, and to suspend altogether when for the time it seems wise. Itis a sovereign power, and therefore knows no limit.
Concurrent Power. The right to regulate interstatecommerce belongs to the national government, and the regulation of commerceentirely within the limits of a State is left to the State; but the mereexistence of this power in Congress does not necessarily exclude the Statesfrom all authority whatever which might affect the commerce falling within thecontrol of Congress, provided no actual legislation of Congress is interferedwith. Some regulations of minor importance it is usual to leave exclusively tothe States; such, for example, as the regulation of pilots, and the policing ofharbors into which foreign and interstate commerce is brought.[2]The State may also pass
[1] United States v. The William, 2 Am. Law Jour. 255;Wheeling Bridge Case, 18 How. 421, 439.
[2] Cooley v. Wardens, &c., 12 How. 299; The JamesGray v. The John Fraser, 21 How. 184; Steamship v. Joliffe, 2Wall. 450. But the regulations must not discriminate between vessels fromdifferent States. Spraigue v. Thompson, 118 U. S. 90.
quarantine laws for its own protection against the introduction ofdisease from other States or foreign countries,[1] may require thatall locomotive engineers running engines in the State, even though engaged ininterstate transportation, may be examined for color blindness,[2]and, in general, may make many police regulations to prevent injury to theircitizens.[3] The power that controls the foreign and interstatecommerce of the country must undoubtedly have the authority to take thesesubjects under its control as part of its commercial regulations. But althoughsuch State regulations may affect interstate commerce in some measure, if theregulations are local in their nature and adapted to the locality they will notbe considered void, unless they run counter to legislation that Congress hasenacted.
Power exclusive in National Government. But, on the otherhand, when State legislation is in its essence and of necessity a regulation ofinterstate commerce, and therefore of national importance, it is anencroachment upon the power of Congress over the subject, and is thereforevoid, even though Congress may never have legislated upon thesubject.[4] If the legislation is not merely of
[1] License Cases, 5 How, 504, 632; Railroad Co. v.Husen, 95 U. S. 465; Morgan S. S. Co. v. Louisiana, 118 U. S. 455. Aninspection law to be valid must not substantially hamper or burden the right tomake or receive a shipment. Vance v. Vandercook Co., decided by U. S.Supreme Court, May 9, 1898.
[2] Smith v. Alabama, 124 U. S. 465.
[3] N. Y., N. H., & H. R. R. v. N. Y., 165 U. S.628. In this case a statute of New York directing that passenger cars shouldnot be heated by stoves, was held to be a proper police regulation, and validin the absence of Congressional action, even though it had to do with carsentering the State from another. "The mere grant of the power to regulatecommerce ... did not in itself and without legislation by Congress impair theauthority of the States to establish such reasonable regulations as wereappropriate for the protection of the health, the lives, and the safety of thepeople." See also West. Un. Tel Co. v. James, 162 U. S. 650; Henningtonv. Georgia, 163 U. S. 299; Chicago, &c. Ry. v. Solan, 169 U.S. 133.
[4] Welton v. Missouri, 91 U. S. 275.
local importance, but the subject with which it deals is national in itscharacter or if it interferes with means and methods of communication thatought to be the same over the whole country, or if under the guise ofprotecting its citizens the State passes laws that are an interference withlegitimate commerce,[1] such legislation is invalid even in theabsence of Congressional regulation.[2] By refraining from action,Congress in effect adopts as its own regulations those which the common law, orthe civil law where that prevails, has provided for the government of suchbusiness, and those which the States, in the regulation of their domesticconcerns, have established affecting commerce, but not regulating it, withinthe meaning of the Constitution. In fact, Congressional legislation is onlynecessary to cure defects in existing laws as they are discovered, and to adaptsuch laws to new developments of trade.[3] Inaction by Congress isequivalent to a declaration that the commerce under its control shall remainfree and untrammelled.[4] The fundamental principles here
[1] "While we unhesitatingly admit that a State may passsanitary laws, and laws for the protection of life, liberty, health, orproperty within its borders, ... while for the purpose of self-protection itmay establish quarantine, and reasonable inspection laws, it may not interferewith transportation into or through the State, beyond what is absolutelynecessary for its self-protection. It may not, under the cover of exerting itspolice powers, substantially prohibit or burden either foreign or interstatecommerce." Strong, J., in Railroad Co. v. Husen, 95 U. S. 465, 472.
[2] Welton v. Missouri, 91 U. S. 275. [3]Hall v. De Cuir, 95 U. S. 485, 490.
[4] Welton v. Missouri, 91 U. S. 275; Brown v.Houston, 114 U. S. 622; Walling v. Michigan, 116 U. S. 446; Robbinsv. Shelby Taxing District, 120 U. S. 489. This subject is clearlydiscussed in an opinion by Fuller, C. J., in Leisy v. Hardin, 135 U. S.100, 108: "The power to regulate commerce among the States is a unit, but ifparticular subjects within its operation do not require the application of ageneral or uniform system, the States may legislate in regard to them with aview to local needs and circ*mstances until Congress otherwise directs....Where the subject matter requires a uniform system as between the States, thepower controlling it is vested exclusively in Congress."
laid down may be better understood by the more explicit and detailedstatements which are given in the following paragraphs. It is often a matter ofconsiderable difficulty to determine whether a State statute is local in itsnature or an actual regulation of interstate commerce as such, or imposes anunnecessary burden upon such commerce.
The right to navigate freely the public waters of the United States hasalways been recognized, and any legislation on the part of the State whichwould tend to restrict or limit that right is necessarily void, while a localpolice regulation or inspection law would not be considered beyond the power ofthe State. The leading case is that of Gibbons v. Ogden,[1]in which Chief Justice Marshall laid down at length the general principles ofthe law of interstate commerce. The State of New York granted to Robert Fultonand his associates, in consideration of the valuable service rendered inbringing the steamboat into practical use, the exclusive right to navigate thewaters of the State with vessels propelled by steam for a series of years. Theact was held void so far as concerned waters which constituted highways offoreign and interstate commerce.
The State has no right to levy a tax upon the occupation or business ofimporting as such. No more important regulation can well be imposed than thatof taxation,
[1] 9 Wheat. 1. License laws passed by the States requiringthe owners of boats using the public waters to be enrolled, and to pay fees,and an act providing that vessel owners should, under a penalty fornon-compliance, file statements with local authorities as to ownership ofvessels, and other facts, have been declared void as in palpable conflict withlaws passed by Congress. Sinnot v. Davenport, 22 How. 227; Moranv. New Orleans, 112 U. S. 69; Foster v. Davenport, 22 How. 244.And a law providing that every vessel arriving in a port should pay fivedollars to the master or warden of the port whether he performed service ornot, was held not to be an inspection law, but a regulation of commerce.Steamship Co. v. Port Wardens, 6 Wall. 31. See also Foster v.Master, 94 U. S. 246.
and the taxation of an importer because of his business as an importeris manifestly a tax upon the business itself. This principle was laid down inthe leading case of Brown v. Maryland, where an act of the State,requiring importers to take out a license and pay a license fee, was declaredvoid, whether the law was considered as imposing a tax or merely for thepurpose of regulating the employment.[1]
It is equally clear that a State cannot discriminate against goods thatare introduced from other States by demanding a license tax from those engagedin selling such goods while imposing no corresponding tax upon those dealing inthe goods which are the products of the State;[2] and moreover a taxupon persons selling goods by sample is inoperative as to persons solicitingorders for a house without the State, even where there is no discrimination,because "interstate commerce cannot be taxed at all, even though the sameamount should be laid on domestic commerce."[3] A State statuterequiring every master of a vessel bringing passengers from other countries,and landing them within the limits of the State, to pay a certain sum of moneyfor every such passenger, is void, as a very evident interference with thefreedom of commerce with foreign nations.[4]
[1] Brown v. Maryland, 12 Wheat. 419, 437; Lowv. Austin, 13 Wall. 29.
[2] Welton v. Missouri, 91 U. S. 275; Wallingv. Michigan, 116 U. S. 446.
[3] Robbins v. Shelby Taxing District, 120 U. S. 489;Brennan v. Titusville, 153 U. S. 289. A license tax cannot be imposed onthe agent of a foreign express company. Crutcher v. Kentucky, 141 U. S.47. Nor upon the agent of a railroad, situated in a distant State, who solicitstravel over that road, though every railroad agent in the State is subject to alike tax. McCall v. California, 136 U. S. 104. And a non-residentrailroad company whose road forms a part of a line of interstate traffic cannotbe taxed for maintaining an office in furtherance of its business. Norfolk,&c. R. R. Co. v. Pennsylvania, 136 U. S. 114.
[4] Passenger Cases, 7 How. 283. And an act imposing a verybur-
A law imposing a stamp duty upon goods sent out of the State would be apalpable burden on interstate or foreign traffic,[1] and likewise atax imposed upon railroads for freight brought within the State or carried outof it.[2] Although, as we shall see, a State may tax the property ofa corporation within the State, even though it is engaged in interstate trafficand may indeed tax business that is carried on wholly within a State, a Statecannot levy a tax upon the gross receipts from the business of transportationbetween it and foreign countries or other States.[3] Such a tax is aburden on commerce, inasmuch as the fares and freights received fortransportation are an essential ingredient of commerce.[4]
densome condition on the shipments with an alternative payment of asmall sum of money is in effect to demand payment of that sum, and is void.Henderson v. Mayor, 92 U. S. 259. Followed in People v. Compagnie& Co., 107 U. S. 59. It is, however, entirely competent for the UnitedStates to levy a tax upon each person brought into the country. Head MoneyCases, 112 U. S. 580.
[1] Almy v. California, 24 How. 169. On the otherhand, the mere fact that property produced in a State is ready for shipment,and that the owner intends to ship it, will not exempt it from State taxation.Coe v. Errol, 116 U. S. 517. And under the police power a State canprohibit the exportation of game shot within its limits. Geer v.Connecticut, 161 U. S. 519. And if liquor distilling is forbidden it cannot bemanufactured solely because it is intended for export. Kidd v. Pearson,128 U. S. 1.
[2] Case of Freight Tax, 15 Wall. 232. The same principle isapplied to tax on telegraph messages. Telegraph Co. v. Texas, 105 U. S.460; Leloup v. Port of Mobile, 127 U. S. 640.
[3] Philadelphia S. S. Co. p. Pennsylvania, 122 U. S. 326;Fargo v. Michigan, 121 U. S. 230; State v. Woodruff P. C. Co.,114 Ind. 155; West. Un. Tel. Co. v. Alabama, 132 U. S. 472.
[4] Compare State tax on Railway Gross Receipts, 15 Wall.284. In this case the court upheld an act imposing a tax upon gross receipts.The decision is seriously questioned in Phila. Steamship Co. v.Pennsylvania, 122 U. S. 326. And if the decision is to be held good, it must bebecause, in this instance, the tax was not in reality levied on the receipts assuch, but upon the franchise which the company received from the State, theamount of the tax being simply measured by the income of the road.
A State cannot levy a tax upon the capital stock of a foreigncorporation engaged in interstate commerce which does business within itslimits; such a tax being, in effect, either upon its right to use navigablepublic waters, or upon its property because engaged in interstatecommerce.[1]
The States in the exercise of the police power have often attempted toprevent the introduction within their limits of articles that were consideredinimical to the public health or safety. The power of the State to pass suchlegislation, at least in the absence of conflicting Congressional legislation,cannot be denied; but the Supreme Court has not admitted that the States can bethe final judge of what would be injurious to the welfare of their citizens,for, if that principle were adopted, legitimate articles of commerce might beexcluded from a State under the pretence that they were harmful, and thusinterstate commerce would be in a large measure subject to regulation andcontrol according to the caprice or prejudice of the individual members of theUnion. Moreover, a law so sweeping in its terms that wholesome as well asunwholesome articles would be excluded would evidently be beyond the competenceof the State. A statute of Missouri prohibiting the driving or conveying ofTexan, Mexican, or Indian cattle into it during certain seasons of the year washeld by the Supreme Court invalid, as an interference with commerce, while thecourt asserted that animals actually suffering under infectious or contagiousdiseases might be excluded by the State.[2] Similarly, a lawrequiring the inspection before slaughter of all animals to be
[1] So held in Gloucester Ferry Co. v. Pennsylvania,114 U. S. 196, where the court held void a law of Pennsylvania taxing thecapital stock of a New Jersey ferry corporation which had leased a wharf inPennsylvania at which it landed passengers.
[2] Railroad Co. v. Husen, 95 U. S. 465. CompareKimmish v. Ball, 129 U. S. 217, and see post, page 80. Thecarrier may be made liable for damage done as a result of bringing in cattlethat spread disease. Missouri, Kansas, &c. Ry. p. Haber, 169 U. S. 613.
used as food prevents the introduction of sound meat killed in otherStates, and is invalid.[1] A State cannot forbid the bringing ofliquor into it from another State, liquor being a legitimate and customaryarticle of commerce.[2] Nor can a State forbid the sale of liquor orother merchantable commodities in the original package by the person whobrought them into the State, inasmuch as the right of importation necessarilyincludes the right of sale. Not until the original package has been broken, orthe commodities have passed from the hands of the importer, do they becomemingled with the mass of property in the State, and subject to the legislativepower of the State.[3]
[1] Minnesota v. Barber, 136 U. S. 313. So of a lawforbidding the sale of meat more than one hundred miles from the place ofslaughter, unless inspected there. Brimmer v. Rebman, 138 U. S. 78. Soif flour from other States must be inspected, while domestic flour need not be.Voight v. Wright, 141 U. S. 62.
[2] Bowman v. Chicago, &c. Ry. Co., 125 U. S. 465.In this case the court quoted with approval the opinion of Justice Catron inthe License Cases, 5 How. 504, 600: "If from its nature, it [any article] doesnot belong to commerce, or if its condition is such ... that it no longerbelongs to commerce, or, in other words, is not a commercial article, then theState power may exclude its introduction.... That which does not belong tocommerce is within the jurisdiction of the police power of the State." An actof Massachusetts forbidding the sale of oleomargarine colored in imitationof butter was held good, even against a person who imported theoleomargarine from another State, and offered it for sale in the originalpackage. Plumley v. Massachusetts, 155 U. S. 461. But a statute ofPennsylvania forbidding the sale of oleomargarine, even in its pure andunadulterated state, was held invalid so far as it prohibited introduction fromanother State and sale in the original package. Schollenberger v.Pennsylvania [decided by Federal Supreme Court, May 23, 1898]. The distinctionis important. In the former, the article excluded was calculated to deceive thepeople; in the latter, it was a legitimate article of commerce, and had been sorecognized by Congress. See also Collins v. New Hampshire [decided byFederal Supreme Court, May 23, 1898].
[3] Leisy v. Hardin, 135 U. S. 100; Brown v.Maryland, 12 Wheat. 419. In Bowman v. Chicago, &c. Ry. Co., 125 U.S. 465, and in Leisy v. Hardin, the court declared invalid a portion ofan Iowa statute having for its purpose the exclusion of liquor from the Stateor its sale
While it is within the power of the State, when Congress has notlegislated on the subject, to pass reasonable inspection laws regulating, forthe common well-being, the introduction of persons and property within itslimits, it cannot impose needlessly burdensome conditions and restrictions. Thecommerce should be left free and untrammelled save as needful inspection andordinary police regulations may affect it. Therefore, an act requiring a Stateofficer to satisfy himself whether a passenger is deaf, dumb, crippled,&c., and is likely to become a public charge, forbidding any such personsto land unless the master give a bond of indemnity to every city in the Statefrom loss from such lauding, is void.[1]
If each one of the States could regulate the charges of railroadsengaged in interstate commerce and coming within their limits, the manifestresult would be confusion and disorder, and to restore in large measure thecon-within the State. To avoid the effect of this decision Congress almostimmediately passed an act providing that all liquors transported into any Stateor remaining therein for use should, upon arrival in the State, be subject toits laws as though produced there, and should not be exempt therefrom by reasonof being introduced therein in the original package. 26 Stat. at Large, 313. Aquestion at once arose whether the State laws held void as to interstatetraffic became operative by reason of this statute, or whether it was necessaryto re-enact them. It was determined that they did not need re-enactment; thatthe statute merely removed the impediment to their operation caused by thecommerce clause and the inaction of Congress. In re Rahrer, Petitioner, 140 U.S. 545. A law of South Carolina, known as the State dispensary law, was heldinvalid in so far as it forbade private persons from bringing in for their ownuse liquor from other States. The court held that the State cannot under theFederal statute establish a system which, in effect, discriminates betweeninterstate and domestic commerce in commodities to make and use which areadmitted to be lawful. Scott v. Donald, 165 U. S. 58. See also Rhodesv. Iowa, 170 U. S. 412; Vance v. W. A. Vandercook Co., 170 U. S.438.
[1] Chy Ling v. Freeman, 92 U. S. 275, where thislegislation is characterized as "most extraordinary." It seems, however, to bewithin the power of the State to require from masters of vessels the names ofpassengers, as being a proper police regulation. New York v. Miln,
11 Pet. 103. Compare Henderson v. Mayor, 92 U. S. 259.
ditions that existed before the Constitution was adopted providing forgeneral power in Congress to legislate on such subjects. This species ofregulation is one which must be, if established at all, of a general andnational character, and cannot be safely and wisely remitted to locallegislation.[1] Any general regulation of the means and methods ofinterstate transportation, under circ*mstances where uniformity should prevail,or where the subject is a matter of national concern, is manifestly beyond thepower of the State.[2]
Power of the State. The regulation of the internalcommerce and police of the State is with equal exclusiveness left to the State,so far as its rules will operate only within its own limits, even thoughindirectly foreign and interstate commerce may be affected by it.[3]The power of the States to protect the lives, health, and property of theircitizens, and to preserve good order and public morals, is a power originallyand always belonging to the States, and not surrendered by them to the generalgovernment.[4] Therefore a law of Congress which undertakes toregulate the sale of an article within a State, and to impose penalties forpreparing or offering for sale or selling it, except after it has beensubjected to a prescribed test as a protection against explosions, isinoperative within
[1] Wabash Ry. Co. v. Illinois, 118 U. S. 557. In thiscase a statute of Illinois forbidding a greater charge by railroads for ashorter than a longer haul of freight in the same direction was held to have noapplication to freight taken up within the State and carried outside of it. Seealso Covington Bridge Co. v. Kentucky, 154 U. S. 204.
[2] Hall v. DeCuir, 95 U. S. 485. In this case astatute of Louisiana compelling all carriers of passengers to provide equal andimpartial accommodations to those applying for carriage, irrespective of race,color, &c., was declared invalid so far as it applied to vesselstransporting passengers from other States. The commerce upon the Mississippi,said the court, is immense, "and its regulation clearly a matter of nationalconcern."
[3] Pervear v. Commonwealth, 5 Wall. 475; Sherlockv. Alien, 93 U. S. 99.
[4] United States v. E. C. Knight Co., 156 U. S.1.
State limits.[1] A State law granting to a State corporationthe exclusive right for a term of years to control the slaughtering of cattlein and near to one of its cities, and requiring that all cattle and otheranimals intended for sale or slaughter in that district shall be brought to theyards and slaughter-houses of the corporation, and authorizing the corporationto exact certain prescribed fees for the use of its wharves, and for eachanimal landed or slaughtered, may be maintained as a State regulation ofpolice.[2] So the regulation of the sale of intoxicating drinkswithin a State belongs to the State itself, and it may require the taking outof a license as a condition to the dealing in intoxicating drinks, whether ofhome or foreign production, or may prohibit the sale of such drinks as abeverage, including those imported after they have passed from the hands of theimporter and become a part of the general merchandise of theState.[3] So it is competent to require railroad companies toadvertise annually, and adhere through the year to a tariff offares.[4] It may provide for separate, if equal, accommodation inpublic conveyances within it of white and colored persons.[5] It maymake any person who has Texas cattle, which have not wintered north of acertain line, liable for damage done by them to other cattle through thecommunication of disease.[6]
The citizens of one State cannot be taxed by another for a license orprivilege to carry on interstate or foreign commerce;[7] but a Statemay tax personal property,
[1] United States v. DeWitt, 9 Wall. 41.
[2] Slaughter House Cases, 16 Wall. 36. See also Pittsburg,&c. Coal Co. v. Louisiana, 156 U. S. 590.
[3] License Cases, 5 How. 504; License Tax Cases, 5 Wall.462. [4] Railroad Co. v. Fuller, 17 Wall. 560.
[5] Louisville, &c. Ry. Co. v. Mississippi, 133 U.S. 587; Plessy v. Ferguson, 163 U. S. 537.
[6] Kimmish v. Ball, 129 U. S. 217.
[7] Moran v. New Orleans, 112 U. S. 69; Pickardv. Pullman Car Co., 117 U.S. 34; Robbins v. Shelby TaxingDistrict, 120 U. S. 489.
employed in interstate commerce, like other personal property within itsjurisdiction,[1] and may provide in various methods for discoveringthe actual value of such property. A statute of Ohio provided for the taxationof the property of express, telegraph, and telephone companies, and directedthat the board of assessors should be guided by the value of the property asdetermined by the entire capital stock, and by any other evidence that wouldenable the board to arrive at the true value of the property in Ohio in theproportion which such property bore to the entire property of such companies;the statute was upheld as against the Adams Express Company, the court holdingthat the property of the company within the State formed a unit, the real valueof which might be ascertained in the method prescribed in the statute, andthat, as to companies engaged in interstate commerce, their property in theseveral States through which they pass may be valued as a unit for the purposeof taxation.[2] It has likewise been held in sev-
[1] Marye v. Baltimore & Ohio R. R., 127 U. S.117; West. Un. Tel Co. v. Massachusetts, 125 U. S. 530; West. Un. Tel.Co. v..Taggart, 163 U. S. 1. A statute of Pennsylvania imposed a tax onthe capital stock of every railroad and car company, in the proportion whichthe number of miles operated by it within the State bore to the whole numbereverywhere. It was Upheld as to the non-resident Pullman Car Company because ithad within the State constantly engaged in its business, though mainly operatedin interstate journeys, a certain number of cars which thus acquired asitus there for taxation, the tax being in reality upon the cars asproperty. Pullman P. C. Co. v. Pennsylvania, 141 U. S. 18. There was astrong dissent in the case. The majority distinguished the tax from anoccupation or license tax, or a tax upon right of transit, and applied thedoctrine of the West. Un. Tel. Co. v. Massachusetts, 125 U. S. 530,where a tax upon fixed property was sustained.
[2] Adams Express Co. v. Ohio, 165 U. S. 194. Therewas strong dissent in this case also. The statute was attacked on the groundthat it provided for a tax on property without the limits of the State inasmuchas it was not the horses and wagons and other tangible property of the companythat was appraised and taxed, at their ordinary market value. But the courtheld that it was a tax upon property, and not
eral instances that, although a company is engaged in interstate as wellas local commerce, if the subjects of taxation can be separated so that thepart which arises from interstate commerce can be distinguished from that whicharises from business wholly within the State, the State can collect a tax uponthe business within its limits.[1] A State has a perfect right totax a trade, profession, or occupation of its citizens; and where a residentcitizen engages in general business, subject to a particular tax, the fact thatfor the time being the business chances to consist, in whole or in part, innegotiating sales, between residents and non-residents, of goods made inanother State does not make such tax an imposition on interstatecommerce.[2] Although, as we have seen when considering thelimitations upon State power, a State cannot demand a license fee from citizensof other States selling goods by sample within its limits,[3] it canlevy a tax or demand a license fee if the article offered for sale is in thepossession of the seller, even if it is the product of anotherState.[4] Moreover, goods which are the products of other States arenot free from taxation within the State into which they may be brought,provided there is no discrimination in favor of local commodities, and theproperty has
unconstitutional. See also Pittsburgh, &c. Ry. Co. v. Backus,154 U. S. 421.
[1] Ratterman v. West. Un. Tel. Co., 127 U. S. 411;Pacific Ex. Co. v. Seibert, 142 U. S. 339. In Postal Tel. Cable Co.v. Charleston, 153 U. S. 692, the court held valid an ordinance of thecity providing that telegraph companies should pay a license fee of $500 forbusiness done exclusively within the city of Charleston. But a tax upon thereceipts of a company arising from messages from points within the State topoints without, or from points without to points within, is invalid. West. Un.Tel. Co. v. Alabama, 132 U. S. 472; Leloup v. Port of Mobile, 127U. S. 640; Telegraph Co. v. Texas, 105 U. S. 460.
[2] Ficklen v. Shelby Taxing District, 145 U. S.1.
[3] Robbins v. Shelby Co. Taxing District, 120 U. S.489; Asher v. Texas, 128 U. S. 129; Brennan v. Titusville, 153 U.S. 289.
[4] Bmert v. Missouri, 156 U. S. 296; Machine Co.v. Gage, 100 U. S. 676.
become part of the general mass of property of the State.[1]Although a State cannot exclude from its limits, either directly or indirectly,a corporation engaged in interstate commerce, it may levy an excise tax for theprivilege of exercising its franchise within the State, if the payment be notmade a condition precedent to the right to carry on the business, but itsenforcement left to the ordinary means devised for the collection of taxes, andit may make the amount of the tax depend upon the gross receipts of thebusiness done within the State.[2]
Bridges, Dams, and Ferries. It has been customary sincethe beginning to leave with the States the control and management of bridges,dams, and ferries, on the ground that they are subjects of local importancedeeply affecting the interests of the people, and properly subject to the localauthority, which can better appreciate their necessity and better direct themanner in which they can be regulated than a government at a distance. They mayserve on the whole as aids to commerce[3] rather than obstructions.But Congress can interfere and supersede the authority of the State when itseems necessary to do so for the regulation of interstatecommerce.[4]
[1] Brown v. Houston, 114 U. S. 622; Pittsburg,&c. Coal Co. v. Bates, 156 U. S. 577.
[2] Postal Tel. Cable Co. v. Adams, 155 U. S. 688. InMaine v. Grand Trunk Ry. Co., 142 U. S. 217, the court upheld a statuteproviding that every railroad corporation should pay to the State treasurer anannual excise tax for the privilege of exercising its franchises, and that theamount of the tax should depend upon the gross receipts; but that when a roadwas partly within and partly without a State the tax should be determined bythe proportion of the gross receipts within the State, to be ascertained byfinding the proportion which the mileage within the State bore to the totalmileage. The court held that this was not a tax upon gross receipts of acompany derived from interstate commerce. See also St. Louis v. WesternUnion Tel. Co., 148 U. S. 92.
[3] Pound v. Turck, 95 U. S. 459; Escanaba Co.v. Chicago, 107 U. S. 678.
[4] Monongahela Nav. Co. v. United States, 148 U. S.312; Wisconsin v. Duluth, 96 U. S. 379. In some of the decisions thecourt seems
When, however, the national government condemns and takes possession ofproperty that has been lawfully used under authority from the State, it mustproceed subject to the limitations of the Fifth Amendment, and must make justcompensation to the owners.[1] The States may establish ferriesacross navigable waters, and require the owners of ferryboats to take outlicenses and pay fees therefor.[2] Sometimes the State regulationsof these navigable waters[3] go to the extent of establishingpractical monopolies; as in case of provision in the lumber regions of thecountry, under which rafting companies are empowered to take control of alllogs thrown into a public stream, and raft them to their destination, as theirowners may direct. And the States may cause navigable streams within theirlimits to be improved, and impose tolls on those making use of them to defraythe expense.[4 ]How the highways of a State, whether on land or bywater, shall be best improved for the public good, is a matter for Statedetermination, subject always to the right of Congress to interpose when Stateaction is deemed to encroach upon the navigation of a river as a means ofinterstate commerce.[5]
to intimate that the regulation of ferries belongs exclusively to theState, and is not one of those matters which Congress can at discretion takeunder its authority. This would in principle hardly seem to be tenable. SeeGloucester Ferry Co v. Pennsylvania, 114 U, S. 196, 217.
[1] Monongahela Nav. Co. v. United States, 148 U. S.312.
[2] United States v. The James Morrison, Newb. Adm.241; Conway v. Taylor, 1 Black, 603; Ferry Co. v. East St. Louis,107 U. S. 365.
[3] As to what are navigable waters of the United States, seeWilson v. Blackbird Creek Marsh Co., 2 Pet. 245; The Daniel Ball, 10Wall. 557; The Montello, 20 Wall. 430.
[4] Mobile v. Kimball, 102 U. S. 691: Huse v.Glover, 119 U. S. 543; Sands v. Manistee Imp. Co., 123 U. S. 288; Palmerv. Cuyahoga Co., 3 McLean, 226. But a license fee, not charged as a tollor compensation for any specified improvement, but exacted for the use of thestream in interstate commerce, is an invalid exaction, even though the Statemay have expended money to improve the navigation of the stream. Harmanv. Chicago, 147 U. S. 396.
[5] Congress has power to establish a corporation to build abridge
A State may authorize the bridging of a river constituting a part of thenavigable waters of the Union, even though the bridge may to some extent be animpediment to commerce which is carried on upon the river under the protectionof Federal law. In the absence of Federal regulation to the contrary, thenecessity for the erection of such structures is generally left to thediscretion of the local authority. "It must not be forgotten that bridges,which are connecting parts of turnpikes, streets, and railroads, are means ofcommercial transportation as well as navigable waters, and that the commercewhich passes over a bridge may be much greater than would ever be transportedon the water it obstructs. It is for the municipal power to weigh theconsiderations which belong to the subject, and to decide which shall bepreferred, and how far either shall be made subservient to theother."[1]
between two States. Luxton v. North River Bridge Co., 153 U. S.525. An act of Congress providing that location and plans of a bridge overnavigable waters shall be approved by the Secretary of War does not deprive theStates of power to authorize bridges under this condition. Lake Shore, &c.Ry. Co. v. Ohio, 165 U. S. 365.
[1] Swayne, J., in Gilman v. Philadelphia, 3 Wall.713, 729. See also Escanaba Co. v. Chicago, 107 U. S. 678; Cardwellv. American Bridge Co., 113 U. S. 205; Hamilton v. Vicksburg,&c. R. R. Co., 119 U. S. 280; Lake Shore, &c. Ry. Co. v. Ohio,165 U. S. 365; Willamette Bridge Co. v. Hatch, 125 U. S. 1.
"There must be a direct statute of the United States in order to bringwithin the scope of its laws ... obstructions and nuisances in navigablestreams within the States." Willamette Bridge Co. v. Hatch, 125 U. S. 1,8. "Until Congress intervenes in such cases ... the power of the State isplenary." Hamilton v. Vicksburg, &c. R. R. Co., 119 U. S. 280, 281.Where a bridge is thrown across a river not altogether within the limits of aState, somewhat different questions arise, and perhaps it is not entirelysettled what principle would hold. In the Wheeling Bridge Case, 13 How. 518,the court held that such a bridge could be abated by a Federal court if itsadvantage to the general business of the country was not so great as tooverbalance the inconvenience caused by it. But there were many circ*mstancesin the case that affected the decision; one that, as the court seemed to hold,Congress had legislated concerning the free navigation of the
The ordinance of 1787 for the government of the Northwest Territoryprovided that all navigable waters of the Territory should be common highwaysand forever free. When a new State was admitted to the Union, formed from theNorthwest Territory, the ordinance ceased to have any operative force inlimiting its powers of legislation as compared with those possessed by theoriginal States.[1] But on the admission of some of the new States aclause with regard to free navigation was introduced into the Congressionalact, and this may be held to be a new enactment by Congress regulatingcommerce.[2] But it does not prevent the States from interferingwith the navigation of rivers by the erection of bridges overthem.[3]
State Duties on Imports and Exports. Further to precludeinterference with the control by Congress over commerce, it is declared by theConstitution that no State shall, without the consent of Congress, lay anyimposts or duties on imports or exports, except what may be absolutelynecessary for executing its inspection laws.[4] The imports andexports here intended are imports from and exports to foreign countriesonly.[5] The clause has no reference to
Ohio, and another that a State was a party. In the Willamette Bridgeease, supra, the court held that the principles of international lawwere applied in the Wheeling case; it was not, therefore, strictly aninterpretation of the interstate commerce clause of the Constitution.
[1] Willamette Bridge Co. v. Hatch, 125 U. S. 1; Sandsv. Manistee Imp. Co., 123 U. S. 288; Escanaba Co. v. Chicago, 107U. S. 678.
[2] Pollard's Lessee v. Hagan, 3 How. 212.
[3] Willamette Bridge Co. v. Hatch, 125 U. S. 1;Escanaba Co. v. Chicago, 107 U. S. 678; Cardwell v. AmericanBridge Co., 113 U. S. 205; Hamilton v. Vicksburg, &c. R. R. Co., 119U. S. 280. Nor from charging reasonable tolls for use of improvements in them.Huse v. Glover, 119 U. S. 543; Sands v. Manistee Imp. Co, 123 U.S. 288. The word free refers to the imposition of duties, &c., not tophysical obstructions.
[4] Const., Art. I. § 10, cl. 2.
[5] Brown v. Houston, 114 U. S. 622; Woodruffv. Parham, 8 Wall. 123
persons.[1] A State in the execution of its inspection lawsmay lay a reasonable charge upon goods produced in it which are to be sentbeyond its borders,[2] but it is believed that a State cannot levy atax upon property because of the intent of the owner to export it to another,or discriminate in taxation between articles intended for consumption withinthe State and those sold to be taken into another.[3]
Federal Duties on Exports. On the other hand, Congress isforbidden to lay any tax or duty on articles exported from anyState.[4] A small fee for a stamp, required to be placed upontobacco intended to be sent out of the State, is not a tax within thisclause.[5]
Tonnage Duties. The States are also forbidden, without theconsent of Congress, to lay any duty of tonnage.[6] It is,therefore, not competent to levy dues upon vessels measured by theircapacity,[7] nor indeed any dues at all which are imposed upon thevessels as instruments of commerce, or are levied for the mere privilege oftrading to a port.[8] But owners of vessels may be taxed by theState for their interests in them as property, by the same standards employedin other cases.[9] Wharfa*ge dues are not taxes, and they may,therefore, be laid in proportion to tonnage.[10]
[1] People v. Compagnie, &c., 107 U. S. 59.
[2] Turner v. Maryland, 107 U. S. 38.
[3] Jackson Iron Co. v. Auditor General, 32 Mich.488.
[4] Const., Art. I. § 9, cl. 5.
[5] Pace v. Burgess, 92 U. S. 372. [6]Const., Art. I. § 10, cl. 3.
[7] Cannon v. New Orleans, 20 Wall. 577; State TonnageTax Case, 12 Wall. 204; Inman Steamship Co. v. Tinker, 94 U. S. 238.
[8] Steamship Co. v. Port Wardens, 6 Wall. 31; Peetev. Morgan, 19 Wall. 581; Transportation Co. v. Wheeling, 99 U. S.273.
[9] Peete v. Morgan, 19 Wall. 581. Only, however,where they have their home situs. St. Louis v. Ferry Co., 11Wall. 423.
[10] Packet Co. v. Keokuk, 95 U. S. 80; St Louisv. Ferry Co., 11 Wall. 423; Packet Co. v. Catlettsburg, 105 U. S.559; Transportation Co. v. Parkersburg, 107 U. S. 691.
Preferences. An important restriction is imposed upon thepower of Congress in the provision that "no preference shall be given by anyregulation of commerce or revenue to the ports of one State over those ofanother; nor shall vessels bound to or from one State be obliged to enter,clear, or pay duties in another."[1] The provision is plain, simple,and just, and requires no comment.[2]
Possession of Imported Goods. Goods imported but not yetdelivered to the importer are in the custody of the United States, and processfrom State courts will not reach them. They can only be delivered to the personentitled to receive them under the laws of Congress.[3]
SECTION III. NATURALIZATION.
The Constitution. Congress is further empowered "toestablish an uniform rule of naturalization." [4] Naturalization isthe act by which the rights, privileges, and immunities of citizenship areconferred upon a person born an alien. There is no doubt that, when Congresshas prescribed a rule, its power is exclusive, since any regulation by a State,not in force in every other State, would break the rule ofuniformity.[5] The States have, therefore, by their assent to thisprovision, made Congress the exclusive depositary of the power to confercitizenship.[6]
A citizen, in the full acceptation of that term, may be said to be amember of the civil state entitled to all its privileges. The principaldifferences in privilege between
[1] Const., Art. I. § 9, cl. 6.
[2] It was somewhat considered in the Wheeling Bridge Case,18 How. 421.
[3] Harris v. Dennie, 3 Pet 292.
[4] Const., Art. I. § 8, cl. 4. And see post, Ch.XIV. sec. 1.
[5] Chirac v. Chirac, 2 Wheat. 259; Houston v.Moore, 5 Wheat 1, 48; Thurlow v. Massachusetts, 5 How. 504; Smithv. Turner, 7 How. 283.
[6] United States v. Villato, 2 Dall. 370.
an alien and a citizen consist in these: the former when he resides inthe country is there by sufferance merely; he cannot own real estate therein,and he cannot exercise political rights. But these differences do not alwaysexist: the States of the Union recognize fully the right of aliens to residewithin their limits without hindrance, and in many States they are permittedfreely to hold, convey, and transmit to their descendants real estate. Some ofthe States also permit aliens, after a short residence therein, and afterdeclaring their intention to become citizens, to exercise the electivefranchise. When an alien is thus given the privilege permanently to residewithin a State, and to hold property of all kinds therein, and to exercise theprivilege of suffrage, the distinction in right and privilege and immunitybetween him and a citizen is not very plain. Indeed, as the suffrage would seempeculiarly to belong to citizens, and as the voter for representatives in theState legislature may vote for representatives in Congress also,[1]it would seem that there might be some question whether a State could conferupon an alien this high privilege. It is a question, however, which has neverbeen made. One privilege, at least, the State could not confer upon an alien.Without the power of naturalization she could not give him as a citizen a titleto all those privileges and immunities of citizens of the several States whichthe Federal Constitution guarantees and secures.[2]
SECTION IV. BANKRUPTCY.
The Constitution. Congress may also establish "uniformlaws on the subject of bankruptcy throughout the United States."[3]This is a power which Congress may or may not exercise, and, when itabstains from doing so, the States are at liberty to legislate on the subject.Nevertheless their legislation must yield to the uniform
[1] Const., Art. I. § 2, cl. 1. [2] Const.,Art. IV § 1, cl. 1 [3] Const., Art. I. § 8, cl. 4.
laws whenever Congress shall see fit to pass them.[1] Thepower of Congress extends to voluntary as well as involuntary bankruptcy; andthough formerly merchants and traders alone were subjected to the bankruptlaws, it is competent for Congress to bring all persons within theirpurview.[2]
Exemptions. A bankrupt law may recognize and give to thosewho become subject to its provisions the benefit of the exemption laws of theStates in which they respectively reside, and the fact that these differ inliberality is not to be regarded as depriving the bankrupt law of the characterof uniformity.[3] Indeed, this is a just and equal rule, since thebankrupt's debts are contracted on the understanding that he is entitled to theexemptions provided by the laws of his own State, and creditors cannot complainwhen he is allowed them.
SECTION V. THE CURRENCY.
Coining Money and regulating its Value. Among the mostimportant of the powers conferred upon Congress is that " to coin money andregulate the value thereof and of foreign coin."[4] This power wouldseem to be made exclusive by the further provision that no State shall "coinmoney," or "make anything but gold and silver a tender in payment ofdebts."[5] The general purpose in-
[1] Sturges v. Crowninshield, 4 Wheat. 122; Ogdenv. Saunders, 12 Wheat. 213; Baldwin v. Hale, 1 Wall. 223; Exparte Eames, 2 Story, 322. Upon repeal of the Federal bankrupt law, the Statelaw previously passed may become operative. Butler v. Goreley, 146 U. S.303
[2] Re California Pac. R. R. Co., 3 Sawyer, 240; ReSilverman, 1 Sawyer, 410; 2 Abb. U. S. 243.
[3] Re Smith, 2 Woods, 458; Re Affold's Estate, 16 Am. LawReg. 624. There are other decisions on the subject, and some of them are inconflict. See Re Deckert, 10 Bank. Reg. 1; Re Shipman, 14 Bank. Reg. 570.
[4] Const., Art. 1. § 8, cl. 5.
[5] Const., Art. I. § 10, cl. 1. Practically, the poweris made exclusive, though doubtless the States might legislate on the subjectof
tended to be accomplished by these provisions was, to confer uponCongress the power of general regulation of the currency of the country, with aview to uniformity.
To coin money is to stamp pieces of metal for use as a medium ofexchange in commerce, according to fixed standards of value. When money is thuscoined and valued by sovereign authority, and when by law no other standardexists, it would by force of these facts become a lawful tender; but wheremoney is coined of two or more metals it is usual to restrict the legal tenderquality of the baser metal to small sums, as has been done with silver, copper,and nickel coins in this country.
Legal Tender Paper. In 1872 it was decided that Congresshas power to make treasury notes a legal tender in the payment of debtspreviously as well as subsequently contracted.[1] It was not agreedfrom what clause or portion of the Constitution this power is derived; and asthe legal tender act was passed during the existence of a civil war which putthe existence of the Union in peril, some jurists have been inclined to justifythe exercise of the power as they would any other act made imperative by theextreme exigencies of war. In the law it is declared that "United Statestreasury notes shall be lawful money";[2] as though the making themwith the legal tender quality was the coining of money; but there is nothing inthe debates attending the making and adoption of the Constitution, or incontemporary history, which
legal tender, if at any time the legislation of Congress should be foundnot fully to cover the subject. And possibly a State might establishstandards differing from those fixed by Congress, for the discharge ofcontracts subsequently made within the State. But when Congress alone can coinmoney and regulate its value, it is difficult to understand how this canbe.
[1] Legal Tender Cases, 12 Wall. 457, overruling Hepburn p.Griswold, 8 Wall. 602.
[2] Rev. Stat. U. S. § 3588. See Trebilco*ck v.Wilson, 12 Wall. 687 695, per Field, J.: and more particularly the opinion ofBradley, J. in Legal Tender Cases, 12 Wall. 554.
would lead to the belief that the phrase "to coin money" was understoodin a broader sense than is above expressed.
But a power whose justification rests upon necessity can never berestricted to any one period or exigency; and from the nature of thejustification it must rest in the discretion of Congress, to be exercisedwhenever in its opinion the need is sufficiently urgent. Accordingly, the actof 1878, adopted in time of peace, authorizing the issue of treasury notes andmaking them a legal tender, was sustained, irrespective of the war power. Thecourt puts its decision upon the ground that "the power to make the notes ofthe government a legal tender in payment of private debts" is "one of thepowers belonging to sovereignty in other civilized nations," and that, as it isnot expressly withheld by the Constitution, it is by necessary implicationvested in Congress in connection with the powers over the currency expresslygranted.[1]
Changing Values. Under the power to regulate, the legalvalue may be changed at discretion. As the relative values of the differentmetals change from time to time, it becomes necessary to employ this power witha view to uniformity in standards, since otherwise the coin of least intrinsicvalue in proportion to its legal rating would in time drive the other fromcirculation. Any considerable change in the legal standards for any otherreason is not to be expected, and, as it would operate to change the value ofall existing credits, would be tyrannical.
Dues to the States. The States, in the exercise of theirown sovereignty, will determine for themselves in what currency they willcollect their taxes, and the act making treasury notes a legal tender can haveno application as between a State and those upon whom the State imposespecuniary burdens for its own necessary purposes.[2] And privateparties in their contracts may stipulate in what currency they shall bedischarged, and the
[1] Legal Tender Case, 110 U. S. 421.
[2] Lane County v. Oregon, 7 Wall. 71.
courts will enforce the stipulation.[1] And, on common lawprinciples, a tender in whatever passes current as money in the businesstransactions of the day is a sufficient tender, if not objected to by thecreditor at the time the tender is made.[2]
SECTION VI. BILLS OF CREDIT.
Prohibition. The States are also prohibited to "emit billsof credit." This inhibition was in furtherance of the same general policy whichtook from the States the power to coin money and restricted their power overthe legal tender. Previous to the Revolution, the Colonies from time to timehad issued paper obligations, promising to pay to the holders certain definitesums of money, and had put these in circulation as money among the people.These were bills of credit, based on the credit of the Colony issuing them; andthey had had when issued an invariable tendency to depreciation and to thedishonor of the public credit. The Constitutional Convention, and the people inadopting their work, agreed that the States should surrender the power torepeat this painful history. The prohibition, however, does not go so far as topreclude the State from chartering banks of issue; for to "emit bills ofcredit" the State itself must put them out on its own credit.
Definition. By bill of credit, then, is meant a billissued by the State, involving the faith of the State, and designed tocirculate as money on the credit of the State, in the ordinary uses ofbusiness.[3] And the bills of a bank chartered by the State are notbills of credit in this sense, even though the State is sole stockholder in thebank,[4] or
[1] Brownson v. Rodes, 7 Wall. 229; Butler v.Horwitz, 7 Wall. 258; Trebilco*ck v. Wilson, 12 Wall. 687.
[2] Warren v. Manis, 7 Johns. (N. Y.) 476; Snowv. Perry, 9 Pick. (Mass.) 540; Wheeler v. Knaggs, 8 Ohio,169.
[3] Craig v. Missouri, 4 Pet. 410; Woodruff v.Trapnall, 10 How. 109. [4] Briscoe v. Bank of Kentucky, 11Pet. 257.
though the State has pledged its credit for their payment in case thebank shall fail to do so;[1] nor are coupons of State bonds, thoughthey are made receivable for taxes.[2]
SECTION VII. WEIGHTS AND MEASURES.
Standards. Congress is further empowered "to fix thestandard of weights and measures."[3] When this power is exercisedit is exclusive, or there would be no "standard."
SECTION VIII. COUNTERFEITING.
Congress may also "provide for the punishment of counterfeiting thesecurities and current coin of the United States."[4]
"This power," it has been said, "would naturally flow as an incidentfrom the antecedent powers to borrow money and regulate the coinage; and,indeed, without it those powers would be without any adequatesanction."[5] The United States, by necessary implication from itspower to coin money, has power to punish the circulation of counterfeitmoney.[6] Nevertheless, the States may punish as offences againstthemselves counterfeiting and the circulation of counterfeited securities andcoin.[7]
SECTION IX. POST OFFICES AND POST ROADS.
The Constitution. Congress is further given power "toestablish post offices and post roads." Every road within a State, includingrailroads, canals, turnpikes, and
[1] Darrington v. State Bank, 13 How. 12.
[2] Poindexter v. Greenhow, 114 U. S. 270.
[3] Const., Art. I. § 8, cl. 5. [4] Const.,Art. I. § 8, cl. 6.
[5] Story on Const., § 1123.
[6] United States v. Marigold, 9 How. 560.
[7] Fox v. Ohio, 5 How.410, 433. See Moore v.Illinois, 14 How. 13; Cross v. North Carolina, 132 U. S. 131.
navigable waters, existing or created within a State, becomes a postroad when by law or by the action of the post office department provision ismade for the transportation of the mail upon or over it. Whether by the powerto establish post roads any more was intended than a power to designate orpoint out what roads shall be mail roads, and the right of way along them whenso designated, has always been and is still made a question. Many statesmen andjurists have contended that the power comprehends the laying out andconstructing any roads which Congress may deem proper and needful for theconveyance of the mails, and the keeping them in due repair for thepurpose.[1] This last view has been acted upon by Congress in someinstances. The power to establish post offices includes everything essential toa complete postal system under federal control and management, and the power toprotect the same by providing for the punishment as crimes of such acts aswould tend to embarrass or defeat the purpose had in view in theirestablishment. And whatever place is officially kept as a place of deposit ofmailable matter is a post office, though it be merely a desk or a trunk or boxcarried about a house or from one building to another.[2]
SECTION X. COPYRIGHTS AND PATENTS.
The Constitution. Congress is further empowered " topromote the progress of science and useful arts, by securing for limited timesto authors and inventors the exclusive right to their respective writings anddiscoveries."[3] Under this power, exclusive copyrights are
[1] See 1 Kent, 268, and note; Story on Const., §§1128-1150, and notes; Wheeling Bridge Case, 18 How. 421; Dickey v.Turnpike Co., 7 Dana (Ky.), 113.
[2] United States v. Marselis, 2 Blatch. 108 As toexcluding immoral matter from the mails, see Ex parte Jackson, 96 U. S. 727; Inre Rapier, 143 U. S. 110.
[3] Const., Art. I. § 8, cl 8.
granted for a term of years to the authors, inventors, designers, orproprietors of books, maps, charts, pictures, prints, statues, models, etc.,and exclusive rights to make, use, and vend new inventions.[1] Actsof Congress undertaking to secure exclusive rights in the use of registeredtrade-marks have recently been held void, as not being within this grant ofpower.[2] The same cases hold that Congress cannot pass such actsunder its power to regulate commerce with foreign nations and among the severalStates and with the Indian tribes; at least if such laws are general in theiroperation, and not limited to the commerce over which Congress is givencontrol.
Common Law Rights. An author has in the United States noexclusive property in a published work except under the Federallaws.[3] But the common law protects him against the unauthorizedpublication of his manuscripts and letters.[4]
The Power Plenary. The power to legislate on the subjectof patents is plenary, and may be exercised in the passage of either general orspecial laws.[5] But such laws have no extra-territorial effectwhatever.[6] The States have no power to regulate or restrict thesale of patent rights,[7] but they are not restrained from
[1] The United States cannot use a patented invention withoutthe consent of the patentee or making suitable compensation. Belknap v.Schild, 161 U. S. 10.
[2] Trade Mark Cases, 100 U. S. 82. How far photographs maybe copyrighted, see Lithograph Co. v. Sarony, 111 U. S. 53.
[3] Wheaton v. Peters, 8 Pet. 591.
[4] Wheaton v. Peters, 8 Pet. 591, 657; Bartlettv. Crittenden, 5 McLean, 32; Pope v. Curl, 2 Atk. 342.
[5] Evans v. Eaton, Pet. C. C. 322; Bloomer v.Stolley, 5 McLean, 158; Blanchard v. Sprague, 2 Story, 164; Blanchard'sFactory v. Warner, 1 Blatch. 258.
[6] Brown v. duch*esne, 19 How. 183.
[7] Woollen v. Banker, 2 Flipp, 33; Cranson v.Smith, 37 Mich. 309; Hollida v. Hunt, 70 Ill. 109.. But there are casescontra. Tod v. Wick, 36 Ohio St. 370; Herdic v. Roessler,109 N. Y. 127; New v. Walker, 108 Ind. 365.
regulating under the police power the use of patentedarticles.[1]
SECTION XI. PIRACIES, FELONIES ON THE HIGH SEAS, ETC.
Punishment. Congress is further empowered "to define andpunish piracies and felonies committed on the high seas, and offences againstthe law of nations." Piracy is universally understood in the law of nations asrobbery or a forcible depredation on the high seas, animo furandi. It isthe same offence at sea with robbery on land,[2] and a statute forthe punishment of piracy, "as defined by the law of nations," is sufficientwithout further definition.[3] But the manifest purpose of thisprovision is to empower Congress to provide for the punishment as crimes of allsuch infamous acts committed on the high seas as constitute offences againstthe United States or against all nations.[4] But robbery committedon a ship belonging to subjects of a foreign state, by one not a citizen of theUnited States, is a crime only against such foreign state, and not punishablein the courts of the United States.[5] Where an American citizen hasdiscovered an unoccupied guano island, which the President under Congressionalauthority has recognized as part of the United States, Congress may ordain thatcrimes committed there shall be considered as though committed on a domesticvessel on the high seas.[6]
[1] Patterson v. Kentucky, 97 U. S. 501; Statev. Telephone Co., 36 Ohio St. 296.
[2] 1 Kent, 183; 4 Bl. Com., 71-73.
[3] United States v. Smith, 5 Wheat. 153. See UnitedStates v. Brig Malek Adhel, 2 How. 210.
[4] 1 Kent, 188.
[5] United States v. Palmer, 3 Wheat. 610; UnitedStates v. Kessler, Baldw. 15, 22.
[6] Jones v. United States, 137 U. S. 202. The SupremeCourt hag recently held that the Great Lakes are high seas. United Statesv. Rodgers, 150 U. S. 249. And see 26 Stat. at Large, 424, c. 874; 1Sup. Rev. Stat. c. 874, p. 799.
SECTION XII. WAR.
The Constitution. It is further provided that Congressshall have power "to declare war, to grant letters of marque and reprisal, andmake rules concerning captures on land and water."[l]
Definition. War is said to be "that state in which anation prosecutes its right by force."[2] It may exist without beingdeclared, through the hostile acts of a foreign power, or through armedinsurrection, and may then be recognized and repelled by the President ascommander-in-chief of the army and navy.[3] The power to grantletters of marque and reprisal is included in the power to declare war; butthere is a propriety in granting it specifically, since they are sometimesissued with a view to obtain redress for some national injury without resort tofurther hostile measures. Until rules are made concerning captures andconfiscations, no private citizen can enforce rights of forfeiture, either withor without judicial assistance.[4] But as a legitimate means ofprosecuting war the property of a belligerent may be seized and confiscated,and disposed of absolutely at the will of the captor.[5] And thisright exists in favor of the United States in respect to its citizens engagedin rebellion against its authority.[6] So as a war measure theslaves of persons in rebellion may be given their freedom.[7] Whenwar exists the government possesses and may exercise all those extreme powerswhich any sovereignty can wield under the rules of
[1] Const., Art. I. § 8, cl. 11.
[2] The Prize Cases, 2 Black, 635, 666. [3] ThePrize Cases, 2 Black, 635, 668.
[4] Brown v. United States, 8 Cranch, 110.
[5] Miller v. United States, 11 Wall. 268; Tylerv. Defrees, 11 Wall. 331.
[6] The Prize Cases, 2 Black, 635, 673; The Grape Shot, 9Wall. 129, 132.
[7] Slabach v. Cushman, 12 Fla. 472; Dorris v.Grace, 24 Ark. 326; Weaver v. Lapsley, 42 Ala. 601; Hall v.Keese, 31 Texas, 504.
war recognized by the civilized world; and among these is the power toacquire territory, either by conquest or by treaty,[1] to createmilitary commissions for the trial of military and other offences in districtswhere the civil law is displaced by warlike operations,[2] and toestablish provisional courts in conquered territory.[3] But there isand can be no power to displace the guaranties and protections of theConstitution where the civil courts are discharging their functions and canenforce them.[4]
Armies. Congress may also "raise and support armies; butno appropriation of money to that use shall be for a longer term than twoyears." [5] The purpose of this restriction is to put it out of thepower of the executive to keep on foot a standing army, when in the opinion ofthe legislature it is not needful.[6] Who shall compose thesearmies, and how they shall be raised, must be determined by law. Minors may beenlisted without the consent of their parents or guardians when the law failsto require such consent.[7] Enlistment is not a voidable contract.It changes the status of the person enlisting, and a minor is not entitled toMs discharge because he has falsely represented himself to be of fullage.[8] All persons capable of performing military duty,irrespective of age or of previous exemptions, may be compelled to do so underlaws for the purpose.[9]
[1] American Ins. Co. v. Canter, 1 Pet. 511, 542.
[2] Ex parte Milligan, 4 Wall. 2.
[3] Jecker v. Montgomery, 13 How. 498; The Grape Shot,9 Wall. 129.
[4] Ex Parte Milligan, 4 Wall. 2.
5 Const., Art. I. § 8, cl. 12.
[6] Story on Const., § 1188. The same end isaccomplished in Great Britain by passing mutiny laws only from year toyear.
[7] Ex parte Brown, 5 Cranch, C. C. 554; United Statesv. Bainbridge, 1 Mason, 71.
[8] In re Morrisey, 137 U. S. 157. See also In re Grimley,137 U. S. 147.
[9] It was so held in the Confederate States, where thequestion would be the same. Ex parte Conpland, 26 Texas, 386; Barberv.
Navy. Congress may also "provide and maintain anavy."[1] What has been said respecting armies applies equally here.The powers of enlistment and conscription are the same, but conscription mustoperate under prescribed and impartial rules: the impressment of seamen,formerly practised in England, is not admissible in thiscountry.[2]
Military Law. Congress may also "make rules for thegovernment and regulation of the land and naval forces."[3] Theserules must not be inconsistent with the proper authority of the President ascommander-in-chief of the army and navy, which, being conferred by theConstitution, cannot be taken away by Congress.
Militia. Congress may also "provide for calling forth themilitia, to execute the laws of the Union, suppress insurrections, and repelinvasions."[4] The militia consists of those persons who under thelaw are liable to perform military duty, and who are enrolled and officered soas to be ready for service when called upon; and they are State forces untilactually called into the service of the Union. Congress may confer upon thePresident the power to call them forth, and this makes him the exclusive judgewhen the exigency has arisen for the exercise of the authority, and renders onewho refuses to obey the call liable to punishment under militarylaw.[5] The President may make his requisition directly upon theexecutive of the State, or upon the militia officers.[6]
Congress may also "provide for organizing, arming, and disciplining themilitia, and for governing such part of them as may be employed in the serviceof the United
Irwin, 34 Ga. 27; Ex parte Tate, 39 Ala. 254. See also Kneedleiv. Lane, 45 Pa. St. 238.
[1] Const., Art. I. § 8, cl. 13.
[2] Cooley, Const. Lim., 6th ed., 363.
[3] Const., Art. I. § 8, cl. 14. See In re Griner, 16Wis. 423.
[4] Const., Art. I. § 8, cl. 15.
[5] Houston v. Moore, 5 Wheat. 1; Martin v.Mott, 12 Wheat. 19. [6] See cases cited in last note.
States, reserving to the States respectively the appointment of theofficers, and the authority of training the militia according to the disciplineprescribed by Congress."[1] But though the States have theappointment of the officers, the bodies of militia called into the service ofthe United States are subject not only to the orders of the President ascommander-in-chief, but also to those of any officer outranking their own, whomay, under the authority of the commander-in-chief, be placed over them. Anarmy obtained by conscription is not the militia, though conscripted fromit.[2]
State Power Subordinate. The intent of the foregoingprovisions is to render the federal government supreme in all that pertains towar, with subordinate authority in the States. This is made more apparent by asubsequent provision that no State shall enter into any treaty, alliance, orconfederation, or grant letters of marque and reprisal;[3] and bystill another, which declares that no State without the consent of Congressshall keep troops or ships of war in time of peace, enter into any agreement orcompact with another State, or with a foreign power, or engage in war unlessactually invaded, or in such imminent danger as will not admit ofdelay.[4] By troops here are meant a standing force, in distinctionfrom the militia, which the States are expected to enrol, officer, equip, andinstruct.[5] The agreements and compacts which may be entered intowith the consent of Congress differ from the treaties, alliances, andconfederations which are absolutely forbidden, in this: that the latter aremade for perpetuity or for a considerable time, and generally have successiveexecution, while the former are made for temporary purposes, and are perfectedin their execution once for all.[6] But all agree-
[1] Const., Art. I. § 8, cl. 16.
[2] See the discussion in Kneedler v. Lane, 45 Penn.St. 238.
[3] Const., Art. I. § 10, cl. 1. [4] Const.,Art. I. § 10, cl. 3 [5] See Luther v. Borden, 7 How.1.
[6] Holmes v. Jennison, 14 Pet. 540, 572.
ments are not prohibited; there are many matters upon which thedifferent States may agree, that can in no way concern the United States. Theprohibition is directed against the formation of any combination tending toincrease the political power of the State, or to encroach upon the supremacy ofthe United States.[1] A final agreement fixing the boundary betweenStates is however plainly of such a nature as to require the consent ofCongress.[2] An attempt by a State to deliver a fugitive fromjustice to a foreign sovereignty, in response to a demand therefor, would be anattempt to perfect and perform an agreement, and is thereforeunauthorized.[3]
SECTION XIII. CEDED DISTRICTS.
The Constitution. Congress is further empowered "toexercise exclusive legislation in all cases whatsoever over such district, notexceeding ten miles square, as may by cession of particular States and theacceptance of Congress become the seat of the government of the United States,and to exercise like authority over all places purchased by the consent of thelegislature of the State in which the same shall be, for the erection of forts,magazines, arsenals, dock-yards, and other needfulbuildings."[4]
District of Columbia. The cession contemplated by thisclause was afterwards made by the legislatures of Maryland and Virginia, andCongress, as the legislature of the Union,[5] assumed the exerciseof exclusive legislation over it, but creating municipal governments withlimited powers. This exclusive legislation over people who have no voice in theselection of legislators is inconsistent with the right of self-government, onthe recogni-
[1] Virginia v. Tennessee, 148 U. S. 503, 518; Whartonv. Wise, 153 U. S. 155.
[2] Poole v. Fleeger, 11 Pet. 185; Virginia v.Tennessee, 148 U. S. 503. [3] Holmes v. Jennison, 14 Pet.540.
[4] Const., Art. I. § 8, cl. 17.
[5] Cohens v. Virginia, 6 Wheat. 264. 424.
tion of which American institutions rest, and, like the control overterritories, must be regarded as one of the necessary exceptions to which, intheir application, such general principles are subject.[1] Inrespect to a portion of this territory Congress has relinquished itsjurisdiction by retroceding it to Virginia, and for a time it gave to theremainder a territorial government. But the power in Congress thus to delegateits general legislative authority has been denied, with much apparentreason.[2]
Jurisdiction, when Exclusive? The Constitution, as we haveseen, provides for the exclusive jurisdiction in the United States, not onlyover the seat of government, but over other places purchased with the consentof the legislature of the State for the erection of needful buildings. Thispower of exclusive legislation carries with it exclusivejurisdiction;[3] the full sovereign authority over such placespasses under such circ*mstances into the hands of the national government. TheState, therefore, cannot take cognizance of acts committed there, and theinhabitants of those places cease to be inhabitants of the State, and can nolonger exercise any civil or political rights under the laws of theState.[4] But land within the limits of a State can be acquired forgovernmental purposes in other ways than by purchase with the consent of thelegislature; and if acquired in any other way, exclusive jurisdiction andlegislative power do not pass to the
[1] Loughborough v. Blake, 5 Wheat. 317, 322.
[2] Roach v. Van Riswick, MacArthur and Mackey, 171.The District of Columbia is properly not a sovereign community, but a municipalcorporation. Metropolitan R. R. Co. v. District, 132 U. S. 1. But it mayin some sense be regarded as a State of the Union, if it is necessary so tohold in order to prevent defeating the provisions of a foreign treaty. Geofroyv. Riggs, 133 U. S. 258.
[3] United States v. Cornell, 2 Mason, 60.
[4] Commonwealth v. Clary, 8 Mass. 72; Sinks v.Reese, 19 Ohio St.
306. Crimes committed in such a place are not punishable by the
State laws, even though, in case of murder, the death ensues beyond
the limits of the place. State v. Kelly, 76 Me. 331; Kellyv. United
States, 27 Fed. Rep. 616.
United States. The property may be purchased without the consent of thelegislature, may be taken under the power of eminent domain,[1] ormay be part of territory originally belonging to the United States, and notexempted from the jurisdiction of the State at the time of the admission of theState wherein the property lies. In these cases the interest of the UnitedStates is that of an ordinary proprietor;[2] but doubtless under anycirc*mstances the federal property, however acquired, would be free from anysuch interference and jurisdiction of the State as would destroy its effectiveuse for federal purposes.[3] The State may also cede jurisdiction tothe federal government over any such place, and in doing so may make suchrestrictions or conditions as it may see fit, provided they are notinconsistent with the effective use of the property for the purposes for whichit was acquired.[4]
SECTION XIV. TREASON.
Punishment. Congress is further empowered "to declare thepunishment of treason; but no attainder of
[1] Kohl v. United States, 91 U. S. 367.
[2] Port Leavenworth R. R. Co. v. Lowe, 114 U. S. 525,531. People v. Godfrey, 17 Johns. 225. "We are of the opinion," said thecourt in the latter case, "that the right of exclusive legislation within theterritorial limits of any State can be acquired by the United States only inthe mode pointed out by the Constitution, by purchase, by consent of thelegislature of the State."
[3] Fort Leavenworth R. S. Co. v. Lowe, 114 U. S. 525,539. The admission of a Territory as a State does not deprive the Federalgovernment of the power to legislate for the protection of its lands, althoughit may involve the exercise of what is ordinarily known as the police power.Canfield v. United States, 167 U. S. 518.
[4] Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525;Benson v. United States, 146 U. S. 325; Palmer v. Barrett, 162 U.S. 399; Opin. Attorneys Gen., 16, 592. The student should notice that the rightto acquire property without the consent of the State does not flow from theclause of the Constitution before referred to, but is a right incident to thegeneral power and authority of the government, which cannot be made dependenton the good will of a State legislature.
treason shall work corruption of blood, or forfeiture, except during thelife of the person attainted."[1] By this last clause the cruelfeature of the old law, which punished the traitor in the persons of hisdescendants, was forever precluded.[2]
SECTION XV. NON-ENUMERATED AND IMPLIED POWERS.
General Powers. Congress is further empowered "to make alllaws which shall be necessary and proper for carrying into execution theforegoing powers, and all other powers vested by this Constitution in thegovernment of the United States, or in any department or officerthereof."[3] The import of the clause is, that Congress shall haveall the incidental and instrumental powers necessary and proper to carry intoexecution all the express powers. It neither enlarges any power specificallygiven, nor is it a grant of any new power to Congress, but it is merely adeclaration, for the removal of all uncertainty, that the means for carryinginto execution those otherwise granted are included in the grant.[4]The grant of the principal must include the necessary and proper incidentswithout which the grant would be ineffectual. It would be as undesirable as itwould be impracticable to enumerate all the means by the use of which thepowers expressly conferred shall be exercised, since what may be suitable andproper means at one period may be wholly unsuitable and ineffectual at anotherperiod, under conditions which had not been anticipated, and thus the iron ruleof limitation to means specified would defeat the grant itself. The clauseabove recited distinctly negatives any suggestion that so unwise andimpracticable a restriction was intended.
[1] Const., Art. III. § 3. See United States v.Greathouse, 2 Abb. U. S. 364; Bigelow v. Forrest, 9 Wall. 339; Millerv. United States, 11 Wall. 268.
[2] Forfeiture, except during the life of the personattainted, was abolished in England by Stat. 3 & 4 Wm. IV. c. 106.
[3] Const., Art. I. § 8, cl. 18. [4] Story onConst., § 1243.
Those who made the Constitution conferred upon the government of theircreation sovereign powers; they prescribed for it a sphere of action, limited,indeed, as respects subjects and purposes, but within which it should move withsupreme authority, untrammelled except by the restraints which were expresslyimposed, or which were implied in the continued existence of the States and offree institutions. But there cannot be such a thing as a sovereign without achoice of the means by which to exercise sovereign powers.
In any particular in which the powers of the United States arecontemplated, the necessity for the exercise of incidental powers is apparent.Congress, as a means to the collection of its revenues, provides for theseizure, sale, or confiscation of property; in its regulation of commercebuilds lighthouses and removes obstructions from harbors; in establishing postoffices, prescribes the rates of postage, provides for the appointment ofpostmasters and other agents, for the free delivery of postal matter, and forthe sale and payment of postal money orders, &c. But whatever may be thepower it exercises in these and other cases, it must provide against its beingrendered nugatory, and its purpose thwarted, by enacting laws for thepunishment of those who commit acts which tend to obstruct, defeat, or impairthe force of their due execution, or who neglect duties essential to theaccomplishment of the ends designed.[1] Without these and similarincidental powers, the government would be as completely without the means ofperpetuating its existence as was the Confederation itself.
The necessity that shall justify the making of particular laws is not anabsolute necessity, but Congress may make any law, not by the Constitutionexpressly or impliedly prohibited, which it shall deem conducive, to theexecution of any express power.[2] It may therefore charter a
[1] United States v. Bevans, 3 Wheat. 336.
[2] Legal Tender Cases, 12 Wall. 457, 539; Martin v.Hunter, 1 Wheat. 304.
national bank as a necessary and useful instrument in the fiscaloperations of the government.[1] It may give a preference to thedemands of the United States in case of insolvent estates.[2] It mayprovide for the punishment of acts which interfere with, obstruct, or preventnavigation, though done on land,[3] and may prevent all obstructionto the freedom of interstate commerce or the transportation of themails.[4] It may protect voters at federal elections from violence,corruption, and fraud;[5] and may guard persons who make homesteadentries of public land from dispossession by force orintimidation.[6] It may give its treasury notes the quality of legaltender,[7] and may forbid assessments for political purposes uponits employees.[8] It may dissolve a territorial corporation, whichwhen the territory was organized was in existence de facto, and seizeits property and apply it to the use of common schools.[9] AndCongress is of necessity the exclusive judge of what is needful and proper,when the means chosen conduce to the end and are notforbidden.[10]
Internal Improvements. How far Congress as an incident topowers expressly granted has a right to appropriate money or public lands towhat are called internal
[1] McCulloch v. Maryland, 4 Wheat. 316, 413; Osbornv. United States Bank, 9 Wheat. 738.
[2] United States v. Fisher, 2 Cranch, 358.
[3] United States v. Coombs, 12 Pet. 72.
[4] It may accomplish this by having persons arrested andtried before a jury, or by using the forces of the army and navy, or byinvoking the power of the court to enjoin persons from such unlawfulinterference. In re Debs, 158 U. S. 564. See also In re Quarles and Butler, 158U. S. 532; Logan v. United States, 144 U. S. 263.
[5] Ex parte Yarborough, 110 U. S. 651.
[6] United States v. Waddell, 112 U. S. 76.
[7] Legal Tender Case, 110 U. S. 421.
[8] United States v. Curtis, 106 U. S. 371.
[9] Mormon Church v. United States, 136 U. S. 1.
[10] McCulloch v. Maryland, 4 Wheat. 316, 413. SeeAnderson v. Dunn, 6 Wheat. 204.
improvements within the States, has been the subject of earnestdiscussion, almost from the foundation of the government, and is even now notauthoritatively determined. It is for the most part conceded that suchappropriations may be made for the improvement of the navigable waters whichconstitute highways of foreign and interstate commerce, and the harbors whichare important to such commerce, and to build breakwaters, lighthouses, andpiers; but it is contended by some that Congress may also assist in the makingor improvement of highways, railroads, and canals, existing or authorized underState authority. To some extent such assistance has been given in money, but toa much greater extent in lands, and the question of right, like that ofprotective duties, has always been treated as exclusivelypolitical.[1]
Alien and Sedition Laws. Two noted instances of theexercise of implied powers in the early history of the country led to muchearnest and excited discussion of the theory of the Constitution, and to bitterand dangerous controversies respecting it. The first was in the AlienLaw, so called,[2] which authorized the President to order outof the country such aliens as he should deem dangerous to the peace and safetyof the United States, or should have reasonable grounds to suspect to beconcerned in any treasonable or secret machinations against the government, andimposed severe penalties for disobedience to the order. The other was in theSedition Law,[3] which declared it to be a public crime,punishable with fine and imprisonment, for any persons unlawfully to combineand conspire together with intent to oppose any measure or measures of theUnited States, &c., or with such intent to counsel, advise, or attempt toprocure any insurrection, unlawful assembly, or combination, or to write,print, utter, or publish, or cause or procure to be written, &c., orwilfully to assist in writing, &c., any false, scandalous,
[1] Story on Const., ch. 26 and notes.
[2] Act of June 25, 1798. [3] Act of July 14,1798.
and malicious writings against the government of the United States, oreither house of Congress, or the President, with intent to defame them, or tobring them into contempt or disrepute, or to excite against them the hatred ofthe people, or to stir up sedition, or to excite any unlawful combination foropposing or resisting any law, or any lawful act of the President, or toresist, oppose, or defeat any such law or act, or to aid, encourage, or abetany hostile designs of foreign nations against the United States.[1]Prosecutions were had under this last law, and it was sustained by thejudiciary, but the prosecutions had the effect to excite a violent publicclamor throughout the country, and were held up to the people as attempts tostifle constitutional discussion, and to prolong the ascendency of the party inpower, by holding the threat of punishment over the heads of those who wouldvigorously assail its conduct, measures, and purposes.[2]
Resolutions of '98. These laws were the immediateincitement to the Kentucky and Virginia Resolutions of 1798-99, passed by thelegislatures of those States respectively. The Virginia Resolutions, afteravowing a firm attachment to the Constitution, and a determination to supportit, declared that the legislature "views the powers of the federal governmentas resulting from the compact to which the States are parties, as limited bythe plain sense and intention of the instrument constituting that compact, asno further valid than they are authorized by the grants enumerated in thatcompact, and that, in case of a deliber-
[1] Story on Const., § 1293.
[2] The prosecutions under the Sedition Law are given inWharton's State Trials. The right of the government to exclude aliens and theappropriate procedure are discussed at length in Fong Yue Ting v. UnitedStates, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538.The government through administrative officers may remove aliens, and to thatend may it seems detain and temporarily imprison; but an alien cannot besubjected to long imprisonment, or to infamous punishment, without a trial.Wong Wing v. United States, 163 U. S. 228.
ate, palpable, and dangerous exercise of other powers not granted by thesaid compact, the States, who are the parties thereto, have the right and arein duty bound to interpose for arresting the progress of the evil, and formaintaining within their respective limits the authorities, rights, andliberties appertaining to them."[1] Of the Kentucky Resolutionsthere were two sets, the first of which, after declaring that the Constitutionwas a compact between the States and the government founded by it, proceeded toassert that "this government, created by this compact, was not made theexclusive or final judge of the extent of the powers delegated to itself, sincethat would have made its discretion, and not the Constitution, the measure ofits powers, but that, as in all other cases of compact among parties having nocommon judge, each party has an equal right to judge for itself as well ofinfractions as of the mode and measure of redress."[2] The second,passed in the following year, declared that a nullification by the States ofall unauthorized acts done under color of the Constitution is the rightfulremedy.[3]
The Alien and Sedition Laws were temporary, and soon expired, and it haslong been settled that there must be and is within the federal governmentauthority to decide finally upon the extent and scope of its powers. Thejudicial decisions to this effect are numerous,[4] and the practiceof the other departments, and of the States also, is in accord with them.
[1] Elliott's Debates, iv. 528, where Madison's report on theResolutions is also published.
[2] Elliott's Debates, iv. 540. [3] Elliott'sDebates, iv. 544.
[4] Martin v. Hunter's Lessee, 1 Wheat. 304, 334;Cohens v. Virginia, 6 Wheat. 264; Chisholm v. Georgia, 2 Dall.419; Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397. Therewas always a dispute whether the "nullification" intended by the Kentucky andVirginia Resolutions was anything more than a resort to such means of redressas were admissible under the Constitution, and to an amendment of thatinstrument if needful.
SECTION XVI. RESTRICTIONS ON THE POWERS OF
CONGRESS.
Implied Restrictions. In the preceding chapter allusionhas been made to certain restrictions on the powers of Congress, which areimplied from the division of powers as between the nation and the States, andas between the several departments of the national government. First,that it must not exercise the powers, or any portion thereof, conferred by theConstitution on the executive or the judiciary; and, second, that itmust not encroach upon the sphere of sovereignty which by the Constitution isleft in or assigned to the States. Some others will now be mentioned.
1. No legislative body can delegate to another department of thegovernment, or to any other authority, the power, either generally orspecially, to enact laws. The reason is found in the very existence of its ownpowers. This high prerogative has been intrusted to its own wisdom, judgment,and patriotism, and not to those of other persons, and it will act ultravires if it undertakes to delegate the trust, instead of executingit.[1] But this principle does not preclude conferring local powersof government upon the local authorities, according to the immemorial practiceof our race and country,[2] nor the giving to the Territories ageneral authority to legislate on their own affairs. It is competent also, andsometimes necessary to confer authority on the executive or the judiciary todetermine in what cases a particular law shall be applied.
[1] Locke on Civil Government, § 142; Barto, v.Himrod, 8 N. Y. 483; Rice v. Foster, 4 Harr. 479; In re Rahrer, 140 U.S. 545; Cooley, Const. Lim., 6th ed., 137-146.
[2] Durach's Appeal, 62 Penn. St. 491; Mills v.Charleton, 29 Wis. 415; People v. Kelsey, 34 Cal. 470; People v.Hurlbut, 24 Mich. 44; Cross v. Hopkins, 6 W. Va. 323; Stone v.Charlestown, 114 Mass. 214; and many cases collected in Cooley, Const Lim., 6thed., 227, and 137-146, where among other matters the validity of local optionlaws is discussed.
For example, the act of Congress suspending the privilege of the writ ofhabeas corpus during the late civil war did not declare a generalsuspension, which would have been entirely needless, and therefore anact of tyranny, but it empowered the President to exercise his judgment,and supersede the writ in particular cases, as he might deem the publicinterest to require. A similar discretionary power is conferred upon thePresident, or upon one of the heads of department, in manycases.[1]
2. No legislative body under its general authority can pass any actwhich shall limit or be derogatory to the authority of its successors. If onelegislature could in any degree limit the power of its successors, the processmight be repeated from time to time, until the State would be stripped of itslegislative authority, and of the sovereignty itself. It is for this reasonthat a State can pass no irrepealable law; for an irrepealable law mustnecessarily remove something from the reach of subsequentlegislation.[2]
3. Every legislative body is to make laws for the public good, and notfor the benefit of individuals; and it is to make them aided by the light ofthose general principles which lie at the foundation of representativeinstitutions. Here, however, we touch the province of legislative discretion.What is for the public good, and what is required by the principles underlyingrepresentative government, the legislature must decide under the responsibilityof its members to their constituents.
Express Restrictions. Those express restrictions upon
[1] See Field v. Clark, 143 U. S. 649, where the courtheld good part of a tariff act empowering the President under certainconditions to suspend certain provisions. See also In re Kollock, 165 U. S.526. To empower a commission to fix maximum railroad rates is not anunconstitutional delegation of power. Chicago, B. & Q. R. R. v.Jones, 149 Ill. 361.
[2] 1 Bl. Com., 90; Bloomer v. Stolley, 5 McLean, 161;Cooley, Const. Lim., 6th ed., 146-149; Illinois Central R. R. v.Illinois, 146 U. & 387, 460.
the powers of Congress which are intended for the protection of personalrights and liberties, it will be more convenient to refer to hereafter, inconnection with other protections. The following are some which concern generalpolicy.
Slave Trade. Congress was forbidden, though in obscurelanguage, to prohibit the importation of slaves prior to the year1808.[1] The forbidden power was exercised as soon as this time hadexpired.
Titles, Presents, &c. The granting of titles ofnobility is prohibited.[2] Their inconsistency with republicaninstitutions, based upon perfect equality of rights, was so manifest as torender the prohibition an important security. It is also provided, that noperson holding an office of profit or trust under the United States shall,without the consent of Congress, accept any present, emolument, office, ortitle of any kind whatever, from any king, prince, or foreign state. A wisejealousy of foreign influence in the affairs of government will amply justifythis provision.[3]
[1] Const., Art. I. § 9, cl. 1. [3] Story onConst., § 1352.
[2] Const., Art. I. § 9, cl. 8.
CHAPTER V.
THE POWERS OF THE EXECUTIVE.
Commander-in-Chief. The President is Commander-in-Chief ofthe army and navy of the United States, and of the militia of the severalStates when called into actual service.[1] This important power isconfided to him to be exercised in his discretion, but it is expected to beexercised through the War Department, and not by taking command in the field,or by any personal direction of armies.[2] As commander, while warprevails the President has all the powers recognized by the laws and usages ofwar, but at all times he must be governed by law, and his orders which the lawdoes not warrant will be no protection to officers acting underthem.[3] An example is where he appoints an unlawful militarycommission, which proceeds to try and punish offenders against thelaw.[4] The power to declare war being confided to the legislature,he has no power to originate it, but he may in advance of its declarationemploy the army and navy to suppress insurrection or repelinvasion.[5]
The Cabinet. The President may require the opinion inwriting of the principal officer in each of the executive departments upon anysubject relating to the duties of
[1] Const., Art. II § 2.
[2] United States v. Eliason, 16 Pet. 291.[3] Little v. Barreme, 2 Cranch, 170.
[4] Milligan v. Hovey, 3 Biss. 13.
[5] The Prize Cases, 2 Black, 635, 668.
their respective offices.[1] The Constitution is silentrespecting the convening of these officers as a council; but custom sanctionsit, and it is usual for the President to call them together and act upon theirjoint advice on all important matters coming within his cognizance. The headsof departments do not act independently of the President, except in such casesas the law may specially provide for, nor are they responsible to Congress; butthey are executive agents, and any official act done by any one of them is, incontemplation of law, done by the President himself, and the responsibility isupon him.[2] The responsibility, however, is only political; thePresident cannot be called to account in prosecutions, civil or criminal,impeachment alone excepted.[3] In customary language the heads ofdepartment collectively are spoken of as the Cabinet; but a cabinet council,not created or required by the Constitution or by law, can only be an advisorybody, which the President will convene or consult in his own discretion.
Reprieves and Pardons. The President has power to grantreprieves and pardons, for offences against the United States, except in casesof impeachment.[4] There are several ways in which this power may beexercised: 1. A pardon may be given to a person under conviction byname; and this will take effect from its delivery, unless otherwise providedtherein. 2. It may be given to one or more persons named, or to a class ofpersons by description before conviction, and even before prosecution begun.Such a pardon is rather in the nature of an amnesty or act of oblivion orforgiveness, blotting out the
[1] Const., Art. II. § 2. These departments are createdby law, and are increased as the exigencies of the public service seem torequire.
[2] Parker v. United States, 1 Pet. 293; Wilcoxv. Jackson, 13 Pet. 498; United States v. Eliason, 16 Pet. 291;United States v. Freeman, 3 How. 556; Marbury v. Madison, 1Cranch, 137. But this is otherwise as to any duties imposed by law on heads ofthe departments specially. Kendall v. United States, 12 Pet. 524.
[3] Durand v. Hollis, 4 Blatch. 451. [4]Const., Art. II. § 2.
supposed offence, and relieving the parties from all actual or supposedcriminality. 3. It may be given by general proclamation, forgiving all personswho may have been guilty of the specified offence, or offences,[1]and in this case the pardon takes effect from the time the proclamation is,signed.[2] 4. It may in any of these ways be made a pardon onconditions to be first performed, in which case it has effect only onperformance; or on conditions to be thereafter performed, in which case abreach in the condition will place the offender in the position occupied by himbefore the pardon was issued.[3] The power of the President is notsubject to the control of Congress. It cannot limit the effect of a pardon, norexclude from its operations any class of offenders.[4] The power topardon includes the power to reduce or commute the punishment, but not tosubstitute one of a different nature.[5] A reprieve is a withdrawalor withholding of punishment for a time after conviction and sentence, and isin the nature of a stay of execution.
By a full pardon the offender is relieved from all consequences of thecriminal conduct,[6] except so far as the government or a thirdperson, by the prosecution of judicial proceedings, may have acquired rights toproperty forfeited and actually sold,[7] or an informer
[1] Ex parte Garland, 4 Wall. 333, 380; United Statesv. Klein, 13 Wall. 128, 147.
[2] Lapeyre v. United States, 17 Wall 191; UnitedStates v. Norton, 97 U. S. 164.
[3] United States v. Wilson, 7 Pet. 150; United Statesv. Greathouse, 2 Abb. U. S. 382; Haynes v. United States, 7 Courtof Claims, 443.
[4] Ex parte Garland, 4 Wall. 333; United States v.Klein, 13 Wall. 128.
[5] Ex parte Wells, 18 How. 305.
[6] Armstrong Foundry Case, 6 Wall. 766; Carlisle v.United States, 16 Wall. 147; Osborn v. United States, 91 U. S. 474.
[7] Knote v. United States, 95 U. S. 149; Wallachv. Van Riswick, 92 U. S. 202; United States v. Lancaster, 4 Wash.C. C. 64. A pardon does not give any right to compensation for what has beensuffered in his person by the offender by imprisonment Knote v.United
may have acquired a vested right to a share in apenalty.[1]
Treaties. The President has power, by and with the consentof the Senate, to make treaties, provided two thirds of the Senatorsconcur.[2] The Constitution imposes no restriction upon this power,but it is subject to the implied restriction that nothing can be done under itwhich changes the constitution of the country, or robs a department of thegovernment or any of the States of its constitutional authority.[3]But foreign territory may be acquired by treaty;[4] the operation ofacts of Congress as to the contracting parties may be modified and controlled,and the treaty will take effect as law from its enactment, provided it iscapable of operating of itself without new legislation to give iteffect.[5] Whether those with whom
States, supra. The power to pardon extends to punishments forcontempts. Re Muller, 7 Blatch. 23.
[1] As long as the proceeds of a sale of forfeited propertyare not paid into the treasury or to the informer, a pardon cuts off all rightof the informer to the penalty. Osborn v. United States, 91 U. S. 474;United States v. Thomasson, 4 Biss. 236.
[2] Const., Art. II. § 2, cl. 2.
[3] Story on Const., § 1508; 1 Tucker's Bl., Ap.332.
[4] American Ins. Co. v. Canter, 1 Pet 511. Louisiana,Florida, ana Alaska were so annexed, as well as the territory acquired fromMexico, in 1848 and 1853. In two instances, the annexation of Texas and of theHawaiian Islands, territory has been annexed to the United States, not bytreaty, but by virtue of a resolution passed through Congress. In the formercase it might be argued that this power was exercised under the clause of theConstitution providing that Congress may admit new States into the Union; forTexas was by the resolution admitted as a State when it gave its consent tocertain provisions; in other words, the resolution constituted an enabling act.See post, p. 189; Act of March 1,1845, 3 Stat. at Large, 797. Theannexation of Hawaii could not have been brought about under this clause,inasmuch as there was no intention of recognizing the islands as a State in theUnion.
[5] Foster v. Neilson, 2 Pet. 253; United Statesv. Arredondo, 6 Pet. 691; Garcia v. Lee, 12 Pet. 511. A treaty iscapable of so operating if it prescribes a rule by which the rights of aprivate citizen may be determined. Head Money Cases, 112 U. S. 580.
the President has dealt in making a treaty had proper authority fromtheir own government for the purpose, and whether that government could givethe right it has assumed by the treaty to transfer, are political questions,and the judiciary cannot inquire into them.[1] If by a treaty a sumof money is to be paid to a foreign nation, it becomes the duty of Congress tomake the necessary appropriation; but in the nature of things this is a dutythe performance of which cannot be coerced.[2] The payment of awardsunder arbitration is therefore, in one sense, discretionary, but only as thepayment of public debts is discretionary, that is, it cannot becompelled by any process of execution.
Appointments and Removals. The President shall nominate,and by and with the advice and consent of the Senate shall appoint ambassadors,other public ministers and consuls, judges of the Supreme Court, and all otherofficers of the United States whose appointments are not in the Constitutionotherwise provided for, and which shall be established by law; but Congress mayby law vest the appointment of such inferior officers in the President alone,in the courts of law, or in the heads of departments.[3]
The power to appoint includes the power to remove;[4]
[1] Doe v. Braden, 16 How. 635; Fellows v.Blacksmith, 19 How. 366.
[2] This subject underwent much discussion at the time of thetreaty of 1794, known as Jay's treaty, with England; at the time of thepurchase of Alaska; and in the later case of the award to England by theCommission on the Fisheries.
[3] Const., Art. II. § 2, cl. 3. As to who are inferiorofficers, see United States v. Hartwell, 6 Wall. 385; United Statesv. Moore, 95 U. S. 760; United States v. Germaine, 99 U. S. 508;United States v. Tinklepaugh, 3 Blatch. 425; United States v.Perkins, 116 U. S. 483; United States v. Mouat, 124 U. S. 303.
[4] Ex parte Hennen, 13 Pet. 230 See Keyes v. UnitedStates, 109 U. S. 336. The judges of courts of the United States hold duringgood behavior. Const., Art. III. § 1. But judges of territorial courts donot come within this clause. McAllister v. United States, 141 U. S.174.
but this, it seems, equally requires the advice and consent ofthe Senate, or may by law be made to do so.[1] But the consent ofthe Senate to an appointment in the place of an incumbent is sufficient for thepurpose.[2]
The President has power to fill all vacancies that may happen during therecess of the Senate, by granting commissions which shall expire at the end oftheir next session.[3] But he cannot by removals make vacancies inorder that he may fill them. The President commissions all the officers of theUnited States.[4]
Messages. The President from time to time shall give tothe Congress information of the state of the Union, and recommend to theirconsideration such measures as he shall judge necessary andexpedient;[5] he may on extraordinary occasions convene both houses,or either of them, and, in case of disagreement between them in respect to thetime of adjournment, he may adjourn them to such time as he shall thinkproper.[6]
Veto Power. Every bill passed by the two houses shall,before it shall become a law, be presented to the
[1] Act of March 2, 1867, Rev. Stat. of U. S. § 1767et seq. This act was repealed March 3, 1887. See United States v.Avery, Deady, 204.
[2] Ex parte Hennen, 13 Pet. 230; Blake v. UnitedStates, 103 U. S. 227; Mullan v. United States, 140 U. S. 240; Bowerbankv. Morris, Wall. C. C. 118.
[3] Const. Art. II., § 2, cl. 3. A newly created office,which has never been filled, is not a case of vacancy within the meaning ofthis provision. McCrary, Am. Law of Elections, § 237. The President has noauthority to anticipate a vacancy, and make an appointment in advance to fillit. Ibid., § 257. The decision of the executive that a vacancy exists isnot conclusive. Page v. Hardin, 8 B. Monr. (Ky.) 648.
[4] Const., Art. II. § 3. As to the time when acommission takes effect, see Marbury v. Madison, 1 Cranch, 137;Bowerbank v. Morris, Wall. C. C. 118; United States v. Le Baron,19 How. 73.
[5] Const., Art. II. § 3. In practice, since Mr.Jefferson's time, this information is conveyed by written message, transmittedby the President's private secretary.
[6] See People v. Hatch, 33 Ill. 9, as to thecirc*mstances which amount to such a disagreement as will justify hisinterference,
President; if he approve, he shall sign it, but if not, he shall returnit with his objections to the house in which it originated, who shall enter theobjections at large on their journal, and proceed to reconsider it. If aftersuch reconsideration two thirds of that house shall agree to pass the bill, itshall be sent, together with the objections, to the other house, by which itshall likewise be reconsidered; if approved by two thirds of that house, itshall become a law. In the reconsideration the yeas and nays must be entered atlarge on the journals of the houses respectively. If any bill shall not bereturned by the President within ten days Sundays excepted afterit shall have been presented to him, it will become a law in like manner as ifhe had signed it, unless the Congress by their adjournment prevent itsreturn.[1] All orders, resolutions, and votes to which the assent ofboth houses may be necessary, except on a question of adjournment, must takethe course of bills.[2]
Compensation. The salary of the President is fixed by law,and can neither be increased nor diminished during the period for which heshall have been elected, and he shall not receive during that period any otheremolument from the United States, or any of them.[3] According tothe legislative precedent of 1873 an increase made after a President has beenre-elected, but before the second term has begun, may apply to his salaryduring the second term.
Appropriations. The provision that no money shall be drawnfrom the treasury but in consequence of appropriations made bylaw,[4] applies with peculiar force to the President, and is aproper security against the executive assuming unconstitutional powers. Thefurther provision that periodical statements of receipts and expenditures
[1] Const., Art. I. § 7, cl. 2. [2] Const.,Art. I. § 7, cl. 3. [3] Const., Art. II. § 1, cl. 6. Thesalary was twenty-five thousand dollars until 1873, when it was increased tofifty thousand. [4] Const., Art. I. § 9, cl. 7.
shall be published, is intended as a means of holding all departments ofthe government, and particularly the legislature, under a due sense ofresponsibility to the people. The duty to see to this publication is properlyexecutive.
General Powers. The President "shall take care that thelaws be faithfully executed." Under this clause his duty is not limited to theenforcement of acts of Congress according to their express terms. It includes"the rights and obligations growing out of the Constitution itself, ourinternational relations, and all the protection implied by the nature of thegovernment under the Constitution." He has power, therefore, acting through theDepartment of Justice, to protect from threatened personal attack a judge of aFederal court while travelling on his circuit in the discharge of hisduties.[1] The foreign intercourse of the country being committed tothe charge of the President,
"he shall receive ambassadors and other public ministers";[2]and this implies that, for reasons satisfactory to himself, he may refuse toreceive those who are sent, or, after having received, may dismiss them, orrequest their recall, or refuse longer to hold relations with them.
Executive Independence. The judiciary cannot control thePresident nor his subordinate officers in the performance of executive duties,by mandamus,[3] injunction,[4] orotherwise.[5] But if an executive officer is charged with a
[1] In re Neagle, 135 U. S. 1, the case of the deputy marshalwho shot Judge Terry in defence of Mr. Justice Field. See, also, on the extentof this power of the executive, the cases cited in the opinion.
[2] Const., Art. II. § 3.
[3] Marbury v. Madison. 1 Cranch, 137; Games v.Thompson, 7 Wall. 347; The Secretary v. McGarrahan, 9 Wall. 298, 311;United States v. Black, 128 U. S. 40; United States v. Windom,137 U. S. 636; United States v. Blaine, 139 U. S. 306; New Orleansv. Paine, 147 U. S. 261.
[4] Mississippi v. Johnson, 4 Wall. 475; Georgiav. Stanton, 6 Wall. 57.
[5] "In exercising the functions of his office the head of anExecutive Department, keeping within the limits of his authority, should notbe
purely ministerial duty, involving the exercise of no discretion on hispart, the courts may compel his performance of it.[1]
under an apprehension that the motives that control his official conductmay ... become the subject of inquiry in a civil suit for damages." Spaldingv. Vilas, 161 U. S. 483.
[1] Kendall v. United States, 12 Pet. 524, and casescited in note 3 on the preceding page. As to whether these principles apply tothe executive officers of the States, the courts differ. See Cooley, Const.Lim., 6th ed., p. 136, note.
CHAPTER VI.
THE JUDICIAL DEPARTMENT OF THE FEDERAL GOVERNMENT.[1]
Extent. The judicial power of the United States extends toall cases, in law and equity, arising under the Constitution, the laws of theUnited States, and the treaties made under their authority; to all casesaffecting ambassadors, other public ministers, and consuls; to all cases ofadmiralty and maritime jurisdiction; to controversies to which the UnitedStates shall be a party; to controversies between two or more States, between aState and citizens of another State, between citizens of different States,between citizens of the same State claiming lands under grants of differentStates, and between a State or the citizens thereof and foreign states,citizens, or subjects.[2]
The power thus defined is commensurate with the ordinary legislative andexecutive powers of the general government, and the powers which concerntreaties; but it is also still broader, and in some cases is made to embracecontroversies from regard exclusively to the parties suing or sued,irrespective of the nature of the questions in dispute. The cases in which thisauthority has been given are cases in which the influence of State interestsand jealousies upon the administration of State laws might
[1] Those using this book in non-professional academic workmay find it advisable to omit the technical portions of this chapter, onlytouching upon the essentials of such topics as Admiralty, Jurisdiction ofFederal Courts, Transfer of Causes, etc. ED.
[2] Const., Art. III. § 2.
possibly be unfavorable to impartial justice, and which for that reasonit was deemed wise to remove to the Federal jurisdiction.
Laws for its Exercise. But although the Constitutionextends the power to the cases specified, it does not make complete provisionfor its exercise, except in the few cases of which the Supreme Court isauthorized to take cognizance. For other cases it is necessary that courtsshall be created by Congress, and their respective jurisdictions defined; andin creating them Congress may confer upon each so much of the judicial power ofthe United States as to its wisdom shall seem proper and suitable, and restrictthat which is conferred at discretion. In doing so it may apportion among theseveral Federal courts all the judicial power of the United States, or it mayapportion a part only, and in that case what is not apportioned will be left tobe exercised by the courts of the States. Thus the States may have a limitedjurisdiction within the sphere of the judicial power of the United States, butsubject to be further limited or wholly taken away by subsequent Federallegislation.[1] Such is the state of the law at this time: manycases within the reach of the judicial power of the United States are leftwholly to the State courts, while in many others the State courts are permittedto exercise a jurisdiction concurrent with that of the Federal courts, but witha final review of their judgments on questions of Federal law in the UnitedStates Supreme Court.
Cases arising under the Constitution, Laws, and Treaties. The reasons for conferring jurisdiction of these cases upon the Federal courtswere manifest, and were also imperative. The alternative must be that the finaldecision upon questions of Federal law must be left to the
[1] It must always appear by the record that a case in theFederal court is within its jurisdiction: the presumption is against it untilit is shown. Robertson v. Cease, 97 U, S. 646; Godfrey v. Terry,97 U. 8. 171.
courts of the several States, and this multitude of courts of finaljurisdiction of the same causes, arising upon the same laws, would, in thelanguage of the Federalist, be a hydra in government from which nothing butcontradiction and confusion could proceed.[1] Uniformity of decisioncould seldom or never be expected, and never relied upon; and the federal law,interpreted and applied one way in one State and another way in another, wouldcease to be a law for the United States, because the decisions would establishno rule for the United States; and the Constitution itself thus administeredwould lose its uniform force and obligation. Such confusion in the laws whichconstitute the bond of union for the States must be intolerable while itexisted, but could not be of long duration, for a speedy dissolution of theUnion must follow. Any government that must depend upon others for theinterpretation, construction, and enforcement of its own laws, is at all timesat the mercy of those on whom it thus depends, and will neither be respected athome nor trusted abroad, because it can neither enforce respect nor performobligations.
These reasons, however, do not apply to the original jurisdiction over acase, but only to the final application in the case of the rule of law thatshall govern it. The full purpose of the Federal jurisdiction is subserved ifthe case, though heard first in the State court, may be removed at the optionof the parties for final determination to the courts of the UnitedStates.[2] The legislation of Congress has therefore left theparties at liberty, with few exceptions, to bring their suits in the Statecourts irrespective of the questions involved, but has made provision forprotecting the Federal authority by a transfer to the Federal courts, eitherbefore or after judgment, of the cases to which the Federal judicial powerextends. The exceptions will appear as we proceed.
[1] Federalist, No. 80.
[2] Gaines v. Fuentes, 92 U. S. 10.
A case may be said to arise under the Constitution, or under a law ortreaty, when a power conferred or supposed to be, a right claimed, a privilegegranted, a protection secured, or a prohibition contained therein, is inquestion.[1] It matters not whether the party immediately concernedbe the United States, in its sovereign capacity, asserting one of its mostimportant powers, or a State defending what it believes to be its own reservedjurisdiction, or a humble citizen contending for a trivial interest: if thecase turns wholly or in part on the interpretation or application of theConstitution, the validity or construction of an enactment of Congress, theforce or extent of a treaty, the justification of any act of a Federal officeror agent by the Federal authority under which he assumes to act, or thevalidity of any State enactment, or any act under supposed State authority,which is disputed as an encroachment upon Federal jurisdiction, or as beingexpressly or by implication forbidden by the Federal Constitution, ineach instance the case is fairly within the intent of the provision underconsideration, and within its reason and necessity.[2]
To give the necessary effect to this provision it has been provided that"a final judgment or decree in any suit in the highest court of a State inwhich a decision in the suit could be had, where is drawn in question thevalidity of a treaty or statute of, or an authority exercised under, the UnitedStates, and the decision is against their
[1] Story on Const., § 1647. But the fact that a Federalexecutive officer erroneously construes a statute does not make a case wherethe validity of an authority under the United States is drawn in question.United States v. Lynch, 137 U. S. 280. Nor is a suit on the judgment ofa Federal court necessarily such a case. Metcalf v. Watertown, 128 U. S.586.
[2] See Tennessee v. Davis, 100 U. S. 257. It is heldthat jurisdiction of all controversies to which corporations created by theUnited States are parties may he conferred on the Federal courts: Osbornv. Bank of the United States, 9 Wheat. 738; and that suits against themmay be removed to those courts. Pacific Railroad Removal Cases, 115 U. S.2.
validity; or where is drawn in question the validity of a statute of, oran authority exercised under, any State, on the ground of their being repugnantto the Constitution, treaties, or laws of the United States, and the decisionis in favor of their validity; or where any title, right, privilege, orimmunity is claimed under the Constitution, or any treaty or statute of, orcommission held or authority exercised under, the United States, and thedecision is against the title, right, privilege, or immunity specially set upor claimed by either party, under such Constitution, treaty, statute,commission, or authority, may be re-examined, and reversed or affirmed in theSupreme Court [of the United States] on a writ of error."[1]
A careful reading of this statute will show that the review in theFederal Supreme Court is only provided for when the decision in the State courtis against the title, right, privilege, or immunity set up or claimed under theFederal authority. Where the decision does not deny what is thus claimed, thereason for a review is wanting.[2] Nor is it sufficient to authorizethe removal of the case to the Federal Supreme Court that some one of theenumerated questions might have arisen in or been applicable to it; it mustappear by the record itself, either expressly or by clear and necessaryintendment, that some one of them did arise in the State court, and was therenecessarily passed upon as the basis of the judgment, and the right, title,privilege, or immunity denied.[3] If the case
[1] Act of Sept. 24, 1789, as amended. Rev. Stat. U. S.,§ 709.
[2] Gordon v. Caldcleugh, 3 Cranch, 268; Burkev. Gaines, 19 How. 388; Ryan v. Thomas, 4 Wall. 603. Under theact of 1885, 23 Stat at Large, 443, error lies to the Supreme Court of aTerritory whether the decision is against or in favor of the title, &c.claimed. Clayton v. Utah, 132 U. S. 632. But in certain cases, under theact of March 3, 1891, 26 Stat. at Large, 826, appeal is taken to the CircuitCourt of Appeals. See Shute v. Keyser, 149 U. S. 649; Aztec Mining Co.v. Ripley, 151 U. S. 79.
[3] Owings v. Norwood's Lessee, 4 Cranch, 344;Messenger v. Mason, 10 Wall. 507; Bolling v. Lersner, 91 U. S.594; De Saussure v. Gail
involves an independent ground sufficiently broad to sustain thejudgment, there can be no review, though a Federal question was likewise passedupon.[1]
Cases affecting Ambassadors, etc. In all cases affectingambassadors, other public ministers and consuls, and those in which a Stateshall be a party, the Supreme Court has original jurisdiction.[2]These are the only cases in which original jurisdiction is conferred upon thatcourt, and it cannot be extended by statute. Therefore the court cannot havejurisdiction to issue the writ of mandamus to one of the heads of the executivedepartment,[3] or a writ of certiorari to one of the district judgessitting as commissioner under a treaty,[4] or to a militarycommission ordered by a general officer of the United States army, commanding amilitary department which has tried and sentenced a civilian topunishment,[5] or a writ of habeas corpus, except as anappellate process.[6] The rule of construction that is applied inthese cases is this: that the affirmative words of the Constitution, declaringin what cases the Supreme Court shall have original jurisdiction,
lord, 127 U. S. 216; Hale v. Akers, 132 U. S. 554; Chicago,&c. Ry. Co. v. Chicago, 164 U. S. 454. Compare Murray v.Charleston, 96 U. S. 432; Roby v. Colehour, 146 U. S. 153. Forillustrations of the difference in the extent of the jurisdiction of theSupreme Court on appeals from a State court and from a Federal court, asaffected by the ground of the decision of the lower court, see New OrleansWater Works v. La. Sugar Co., 125 U. S. 18, and cases cited.
[1] Hopkins v. McLure, 133 U. S. 380; Beatty v.Benton, 135 U. S. 244; Hammond v. Johnston, 142 U. S. 73.
[2] Const., Art. III. § 2, cl. 2. See Kentucky v.Dennison, 24 How. 66. But Congress may give concurrent jurisdiction to othercourts in cases involving consuls, &c, and in cases brought by a State.Börs v. Preston, 111 U. S. 252; In re Baiz, 135 U. S. 403; Amesv. Kansas, 111 U. S. 449.
[3] Marbury v. Madison, 1 Cranch, 137 See cases,ante, p. 121. [4] Ex parte Metzger, 5 How. 176.[5] Ex parte Vallandigham, 1 Wall. 243.
[6] See Ex parte Yerger, 8 Wall. 85; Ex parte Hung Hang, 108U. S. 552.
must be construed negatively as to all other cases.[1] Givingthe Supreme Court original jurisdiction does not exclude the jurisdiction ofother courts, and therefore cases affecting foreign representatives mayoriginate in other courts,[2] but they will be subject in suchcourts to all the rules of privilege conferred by international law, and to theappellate jurisdiction of the Federal Supreme Court. And Congress in itsdiscretion may, as it has done,[3] exclude altogether thejurisdiction of State tribunals over suits against foreign representatives. Asthe privileges of ambassadors, ministers, and consuls are conferred, not fortheir own advantage, but as the privileges of their government, it is fit andproper that the courts of the government to which they are accredited, and withwhich alone they can have official dealings, should have exclusive cognizanceof suits against them.[4]
Admiralty and Maritime Cases. Although the grant ofjurisdiction in these cases is not in terms exclusive, it has been practicallyconceded, from the first, that it is exclusive in cases of prize, since thosewere always excluded from the cognizance of the courts of law. But it is alsoexclusive in all cases of maritime torts and contracts, and liens for maritimeservices, if the proceeding is in rem.[5] If, however, thecause of action is one for which the common law gives a remedy, the proceedingmay be taken in the State courts, notwithstanding a remedy in personammight likewise be had in admiralty.[6] Justice Story, in discussingthe character of this juris-
[1] Marbury v. Madison, 1 Cranch, 137; Ex parteVallandigham, 1 Wall. 243.
[2] See cases, note 3, page 128. [3] Rev. Stat. U.S., § 687.
[4] Davis v. Packard, 7 Pet. 276.
[5] The Moses Taylor, 4 Wall. 411; The Hine, 4 Wall. 555; TheBelfast, 7 Wall. 624.
[6] Leon v. Galceran, 11 Wall. 185; Schoonmackerv. Gilmore, 102 U.S. 118. See Rev. Stat. U. S., § 711, cl. 2;post, p. 138. For the distinction between actions in rem andin personam, see post, p. 349.
diction, uses the following words: "The admiralty and maritimejurisdiction (and the word 'maritime' was doubtless added to guard against anynarrow interpretation of the preceding word 'admiralty') conferred by theConstitution embraces two great classes of cases, one dependent uponlocality and the other upon the nature of the contract. The first respects actsor injuries done upon the high seas, where all nations claim common right andcommon jurisdiction; or acts or injuries done upon the coasts of the sea; or,at farthest, acts or injuries done within the ebb and flow of the tide. Thesecond respects contracts, claims, and services purely maritime, and touchingrights and duties appertaining to commerce and navigation. The former is againdivisible into two great branches, one embracing captures and questionsof prize arising jure belli; the other embracing acts, torts, andinjuries strictly of civil cognizance, independent of belligerentoperations."[1] But it is now settled, overruling the early opinionsand decisions, that the admiralty and maritime jurisdiction is not limited tothe high seas, or to tide-water, or even to waters navigable from the ocean,but that it extends to the Great Lakes and their navigablewaters,[2] and to the great rivers,[3] even though theirnavigable course may be entirely within the limits of a singleState.[4] "Nor can the jurisdiction of the
[1] Story on Const., § 1666. The scope of civiladmiralty jurisdiction may be made plainer by the following statement: itembraces (1) prize causes; (2) contracts that are of a maritime nature; (3)torts that arise on navigable waters. As to what are contracts of a maritimenature, see Curtis, Jurisprudence of the United States Courts, 2d ed., pp.286-293. The navigable waters are the public waters constituting avenues offoreign or interstate commerce: The Montello, 11 Wall. 411, 415. But, as saidin the text, admiralty jurisdiction does not come from the interstate commerceclause of the Constitution, or depend upon the fact that the vessel in questionwas actually engaged in foreign or interstate commerce.
[2] The Genesee Chief, 12 How. 443; The Eagle, 8 Wall. 15.[3] Fretz v. Bull, 12 How. 466.
[4] Jackson v. The Magnolia, 20 How. 296; The GeneralCass, 1
courts of the United States be made to depend on regulations ofcommerce. They are entirely distinct things, having no necessary connectionwith one another, and are conferred in the Constitution by separate anddistinct grants."[1] While the limits of the general maritime laware matters of judicial determination, within those limits it is subject tosuch modifications as Congress may adopt, and no State law can override theaction of Congress.[2] The Federal jurisdiction will thereforeinclude the case of collisions at sea between foreign vessels,[3]the case of collisions on navigable lakes or rivers of vessels engaged incommerce between ports of the same State, and occurring within the body of acounty,[4] and also the case of contracts of affreightment, thoughto be performed within the State where made.[5] So cases ofcollision of vessels passing from one navigable body of water to anotherthrough a connecting canal, like the Welland Canal, are of Federalcognizance.[6] And admiralty has jurisdiction of collisionsoccurring on tide-water, though the vessel be at a wharf or pier in aharbor,[7] but it has none where the injury is done on land, aswhere a fire is set on shore by sparks from a steamer.[8]
Brown, Adm. 334. The first of these cases arose on the Alabama River,and the second on the Saginaw.
[1] The Commerce, 1 Black, 574, 579.
[2] Butler v. Boston S. S. Co., 130 U. S. 527; In reGarnett, 141 U. S. 1, where the limited liability act was held operative onnavigable water within a State.
[3] The Belgenland, 114 U. S. 355.
[4] The Commerce, 1 Black, 574; Waring v. Clark, 5How. 441.
[5] The Belfast, 7 Wall. 624.
[6] Scott B. The Young America, Newb. Adm. 101; The Avon, 1Brown Adm. 170; The Oler, 14 Am. Law Reg. N. S. 300. So of a canal whollywithin the State, and a vessel on a voyage between two ports in the State. Exparte Boyer, 109 U. S. 629. Compare McCormick v. Ives, Abb. Adm.418.
[7] The Lotty, Olcott, 329.
[8] The Plymouth, 3 Wall. 20; Ex parte Phenix Ins. Co., 118U. S. 610. So if a vessel's boom damages a building. Johnson v. Chicago,&c. El. Co., 119 U. S. 388. A dry dock is not a subject of salvage ser-
The general jurisdiction over the place within a State which is subjectto the grant of admiralty power adheres to the territory, as a portion of thesovereignty not given away, and the residuary powers of legislation remain inthe States. Therefore the admiralty jurisdiction does not divest the Statejurisdiction to punish crimes.[1] Neither does it divest the Statejurisdiction to regulate the fisheries, and to punish those who transgress theregulations.[2]
Suits by and against the United States. The United States,like any other sovereignty, is not suable in its own courts, except with itsown consent; but it may consent, as has been done by creating and defining thejurisdiction of the Court of Claims. Neither is the United States suable in aState court, for the United States is supreme within its sphere, and the Statescannot subordinate it to their authority.[3] It has been quiteauthoritatively conceded, however, by the Federal judiciary, "that land withina State, purchased by the United States as a mere proprietor, and not reservedor appropriated to any special purpose, may be liable to condemnation forstreets or highways, like the land of other proprietors, under the rights ofeminent domain";[4] and the concession will cover all cases ofappropriations for public purposes.[5]
vice. Cope v. Vallette Dry Dock Co., 119 U. S. 625. But if one isinjured on a vessel lying at a wharf at the end of the voyage through thenegligence of her officers, a libel in personam will lie. Leathersv. Blessing, 105 U. S. 626.
[1] United States v. Bevans, 3 Wheat. 336. Congresshas by statute extended the criminal jurisdiction of the Federal courts to theGreat Lakes and their connecting waters. 26 Stat. at Large, 424, c. 874; 1 Sup.Rev. Stat. p. 799. See also United States v. Rodgers, 150 U. S. 249.
[2] Corfield v. Coryell, 4 Wash. C. C. 371; Smithv. Maryland, 18 How. 71; McCready v. Virginia, 94 U. S. 391;Manchester v. Massachusetts, 139 U. S. 240.
[3] Ableman v. Booth, 21 How. 506. [4]United States v. Chicago, 7 How. 185, 194.
[5] The right was asserted to the fullest extent by Mr.Justice McLean in United States v. Railroad Bridge Co., 6 McLean,517.
A right to appropriate implies a right to provide the means whereby acourt may obtain jurisdiction, which in these cases may be some other meansthan the ordinary writs. But the States can have no right to appropriate anyportion of the land which has been purchased, or otherwise acquired, by theUnited States, as a means in the performance of any of its governmentalfunctions; such as land held for a fortification,[1] or for anarsenal and government manufactory of arms.[2]
As a corporation the United States may sue as plaintiff in either itsown or the State courts, or in the courts of a foreign country, as occasion mayrequire.[3]
Controversies between States. Many questions might ariseunder this clause concerning the reach of the Federal jurisdiction overcontroversies between States, the subjects that may be dealt with anddetermined, and how far the sovereign rights of the States, and the extent oftheir respective territorial jurisdictions, may be brought within thecognizance and final determination of the Federal judiciary. The clauseconferring jurisdiction of such controversies is general, and only as casesarise can it be determined whether they present questions which are properly ofjudicial cognizance as between the States. A question of boundary is plainlysuch a question,[4] and so is the question whether the conditions ina compact between two States, on the performance of which certain territory wasto be detached from the one and become a
[1] United States v. Chicago, 7 How. 185.
[2] United States v. Ames, 1 Wood. & M. 76 Whethera suit is against the United States or its officers as individuals isdetermined on much the same principles as in case of a State. See post,p. 134, and also Belknap v. Schild, 161 U. S. 10.
[3] Queen of Portugal v. Grymes, 7 Cl. & Fin. 66;United States v. Wagner, L. R. 2 Ch. App. 582.
[4] Rhode Island v. Massachusetts, 12 Pet. 657;Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 How. 478;Alabama v. Georgia, 23 How. 505.
part of the other, have ever been complied with, so as to effect thetransfer.[1]
By "States," in the provision of the Constitution conferring thisjurisdiction, is intended the States in the Union.[2] An Indiantribe is neither a State in the Union in this sense, nor a foreign state, andentitled as such to sue in the Federal courts.[3]
Suits by States. The Federal jurisdiction extends to suitsby States against citizens of other States, and against foreign states,citizens, or subjects. The States intended here are States holding theirconstitutional relations to the United States. A State which has been inrebellion, and is not restored to peaceful relations as a member of the Union,cannot sue in the Federal courts.[4] The fact that, in a suitbetween two individuals to which a State does not appear to be a party ofrecord, a question of boundary between States may incidentally arise, does notmake the case one to which the State is a party within the meaning of theprovision which gives to the Supreme Courts original jurisdiction of suitswhere a State is a party.[5] A suit against a State agent for moneysor securities wrongfully taken by him under a void law is not a suit againstthe State;[6] but a suit by the Governor of the State, in his titleof office and in the interest of the State, is a suit by theState.[7] The courts of one country do not execute the penal laws ofanother, and hence a State cannot bring an action in the Supreme Court of theUnited States on a judgment of its court based on one of its own penalstatutes. Such a judgment would not be recognized in any manner in the courtsof another State, and the grant of judicial power to the Federal
[1] Virginia v. West Virginia, 11 Wall. 39.
[2] Scott v. Jones, 5 How. 343, 377.
[3] Cherokee Nation v. Georgia, 5 Pet. 1.
[4] Texas v. White, 7 Wall. 700.
[5] Fowler v. Lindsey, 3 Dall. 411.
[6] Osborn v. Bank of the United States, 9 Wheat. 738.[7] The Governor v. Madrazo, 1 Pet. 110, 124.
courts was not intended to confer upon them jurisdiction of a suit ofsuch a nature that it could not be entertained by the judiciary of anotherState at all.[1]
Suits against States. The clause of the Constitution Whichat first conferred the Federal jurisdiction extended to suits against States byother States, by citizens of other States, and by foreign states, citizens, orsubjects.[2] But by amendment to the Constitution this jurisdictionhas been so limited as to be confined to suits brought by States in the Union,and by foreign states, and the States are no longer subject to be sued in theFederal courts by private persons.[3] But the fact that a State hasan interest in the controversy, however extensive, will not bring the caseunder the amendment and exclude the Federal jurisdiction so long as the Stateitself is not a party.[4] Therefore a State corporation may be suedin the Federal courts, notwithstanding the State is the solestockholder.[5] But if the State is an indispensable party and mustbe brought into the litigation, a suit will not lie.[6] It is notbelieved, however, that a State can be indirectly sued by
[1] Wisconsin v. Pelican Ins. Co., 127 U. S. 265. Theobject of vesting in the Federal courts this jurisdiction of suits by a Stateagainst the citizens of another was to enable the State to avoid the partialitywhich might exist in the courts of another State. The courts of the UnitedStates have no power to execute the penal laws of the individual States. Gwinv. Breedlove, 2 How. 29, 36, 37.
[2] Chisholm v. Georgia, 2 Dall. 419.
[3] Const., Amendment 11. A State may not be sued without itsown consent by its own citizens or by citizens of another State. Hans v.Louisiana, 134 U. S. 1; Railroad Co. v. Tennessee, 101 U. S. 337. And itmay attach any conditions it pleases to its consent. De Saussure v.Gaillard, 127 U. S. 216. By appearing in a suit against it, the State may waiveits immunity. Clark v. Barnard, 108 U. S. 436. A State cannot, by takingassignments from its citizens of claims held by them against another State,entitle itself to sue thereon in the Federal courts. New Hampshire v.Louisiana, 108 U. S. 76. See Cunningham v. Railroad Co., 109 U. S.446.
[4] Osborn v. Bank of United States, 9 Wheat. 738.
[5] Bank of Kentucky v. Wister, 2 Pet. 318.
[6] Cunningham v. Macon, &c. R. R. Co, 109 U. S.446.
making its agent or officer the nominal defendant, where the agent orofficer merely holds the State property or securities, or occupies a positionof trust under the State, and in the performance of its duties commits uponothers no trespass, so that the cause of action relied upon must be one inwhich he would be responsible only as such agent, officer, or trustee. If suchaction were permitted, the Eleventh Amendment might be nullified. A suit,therefore, whether brought by a citizen of the same State or of another State,will not lie against an officer, if the real purpose of it is to compel theperformance by the State of its obligations.[1] But where anofficer, claiming to act as such, under color of unconstitutional laws invadesproperty or rights acquired under contracts with the State, and makes himself atrespasser[2] by attempting to enforce a void authority, it isimmaterial to the jurisdiction who undertook to confer the void authority,since he is responsible individually, on well settled common lawprinciples.[3]
The force of the Eleventh Amendment is restricted to original suits, andit does not preclude a review in the Federal Supreme Court of decisions in theState courts, where is drawn in question any title, right, privilege, orexemption under the Constitution, laws, or treaties of the UnitedStates.[4]
Other Controversies. Where the jurisdiction of a casedepends upon the citizenship of parties, the fact should appear on inspectionof the record.[5] And an averment
[1] Louisiana v. Jumel, 107 U. S. 711; Hagoodv. Southern, 117 U. S. 52; In re Ayers, 123 U. S. 443. This amendmentdoes not prevent an action against a county. Lincoln Co. v. Luning, 133U. S. 529.
[2] As was the case in Osborn v. Bank of UnitedStates, 9 Wheat. 738.
[3] United States v. Lee, 106 U. S. 199; Poindexterv. Greenhow, 114 U. S. 270; Pennoyer v. McConnaughy, 140 U. S. 1;In re Tyler, 149 U. S. 164; Tindal v. Wesley, 167 U. S. 204. An actionlies against an officer to compel him to do what a statute requires. Rolstonv. Com'rs, 120 U. S. 390.
[4] Cohens v. Virginia, 6 Wheat. 264.
[5] Brigham v. Cahott, 3 Dall. 382; Jackson v.Ashton, 8 Pet. 148; Bailey v. Dozier, 6 How. 23; Robertson v.Cease, 97 U. S. 646; Ste-
of residence is not equivalent to an averment ofcitizenship.[1] A resident in one of the Territories, or of theDistrict of Columbia, is not entitled to sue or be sued as a citizen of aState.[2] A corporation created by and transacting business within aState is for this purpose to be deemed to represent corporators who arecitizens of the State,[3] and a foreign corporation is to be deemedto represent corporators who are aliens.[4] As a declaration ofintention to become a citizen under the naturalization laws does not make one acitizen, it will not preclude an alien suing as such.[5] The courtswill not be open to suits by aliens when their country is at war with ourown.
Legislation assigning the Jurisdiction to Courts. In theexercise of its authority to assign to courts such por-
vens v. Nichols, 130 U. S. 230; Denny v. Pironi, 141 U. S.121. If the record fails to show a case of which the court can takejurisdiction, its duty is to dismiss it of its own motion. Metcalf v.Watertown, 128 U. S. 586, and cases cited; Robinson v. Anderson, 121 U.S. 522. And under the act of 1875, if the averments show diverse citizenshipbut the proofs do not, the Supreme Court will dismiss. Morris v.Gilmore, 129 U. S. 315.
[1] Robertson v. Cease, 97 U. S. 646; Menard v.Goggan, 121 U. S. 253. Compare Shelton v. Tiffin, 6 How. 163.
[2] Hepburn v. Ellzey, 2 Cranch, 445, 448; Scottv. Jones, 5 How. 343, 377; Hooe v. Jamieson, 166 U. S. 395.
[3] United States Bank v. Planters' Bank, 9 Wheat.904; Ohio, &c. R. R. Co. v. Wheeler, 1 Black, 286; Insurance Companyv. Francis, 11 Wall. 210; St Louis, &c. Ry. v. James, 161 U.S. 545. A stockholder resident in another State may nevertheless as suchstockholder be the antagonistic party. Dodge v. Woolsey, 18 How.331.
[4] Society, &c. v. New Haven, 8 Wheat. 464;Steamship Co. v. Tugman, 106 U. S. 118. Where a corporation of NewHampshire and one of the same name of Massachusetts are by the action of bothStates permitted to unite to operate a railroad, the New Hampshire corporationso far retains its original character that it may file a bill against aMassachusetts corporation in the Federal court for that State. Nashua R. R.Corp. v. Lowell R. R. Corp., 136 U. S. 356. Compare Memphis, &c. R.R. Co. v. Alabama, 107 U. S. 581.
[5] Story on Const., § 1700. If an alien is sued, hisalienage must be averred. It is not enough that he is a foreign consul.Börs v. Preston, 111 U. S. 252.
tion of the judicial power as it shall determine is proper or needful,Congress has provided by law that the jurisdiction vested in the courts of theUnited States, in the cases and proceedings following, shall be exclusive ofthe courts of the several States:
1. Of all crimes and offences cognizable under the authority of theUnited States;
2. Of all suits for penalties and forfeitures incurred under the laws ofthe United States;
3. Of all civil causes of admiralty and maritime jurisdiction; saving tosuitors in all cases the right of a common law remedy where the common law iscompetent to give it;
4. Of all seizures under the laws of the United States, on land orwaters not within admiralty and maritime jurisdiction;
5. Of all cases arising under the patent right or copyright laws of theUnited States;
6. Of all matters and proceedings in bankruptcy;
7. Of all controversies of a civil nature where a State is a party,except between a State and its citizens, and between a State and citizens ofother States or aliens.[1]
The Federal courts have also original jurisdiction in a number of othercases, such as those arising under revenue or postal laws, those for violationof the Federal statute for protection of civil rights, and suits for penalties,etc.
Also, concurrently with State courts, of all suits of a civil nature, atcommon law or in equity, where the matter in dispute exceeds, exclusive ofinterest and costs, the sum or value of $2,000, and arising under theConstitution and laws of the United States, or treaties made or which shall bemade under their authority, or in which controversy the United States areplaintiffs or petitioners; or in which there shall be a controversy betweencitizens of different States, in which the matter in dispute exceeds, exclusiveof interest and costs, the sum or value aforesaid; or a [1] Rev.Stat. U. S., § 711.
controversy between citizens of the same State claiming lands undergrants from different States; or a controversy between, citizens of a State andforeign states, citizens, or subjects, in which the matter in dispute exceeds,exclusive of interest and costs, the sum or value aforesaid.[1]
Congress has also, in pursuance of treaties with certain countries,provided for the holding of courts in them by the ministers and consuls of theUnited States, by which offences committed in those countries by citizens ofthe United States are to be tried, as well as controversies between suchcitizens and others.[2]
Transfer of Causes from State Courts. As suits may beinstituted in the State courts in all cases in which the jurisdiction of theFederal courts is not made exclusive, the purpose had in view in conferring theFederal power would often be defeated if there were not some provision underwhich a cause brought in a State court might be removed to a Federal court. Forexample, if a citizen of one State should bring suit in one of its courtsagainst a citizen of another State, the case would be one which by theConstitution is embraced in the grant of the Federal power; and the reason whyit was included is that it may sometimes happen that local feelings,sentiments, prejudices, or prepossessions may preclude a fair trial in theState court, or at least give rise to fears or suspicions that such may be thecase. But it may be and is entirely proper to allow the suit to be thus broughtin the first instance, because in most cases no such influences will besuspected or feared, and the parties would go to trial in the State courtwithout objection. But if they are feared, the reasons for referring the caseto the Federal court are then apparent. A
[1] Act of March 3, 1887, 24 Stat. at Large, 552, as amendedby act of August 13, 1888, 25 Stat at Large, 434.
[2] Rev. Stat U. S., § 4083 et seq. A Britishsubject who has shipped as a sailor upon an American vessel may be tried beforesuch a court for the murder of the mate of the vessel while it was lying inJapanese waters. In re Ross, 140 U. S. 453.
case of more importance to the Federal jurisdiction is where a Federalofficer is sued in a State court, for some act or omission in his office. Formany such acts or omissions there is no civil responsibility in any court, butfor some there is. The general rule is, that, if a duty imposed upon an officeris exclusively of a public nature, his neglect to perform it can only bepunished by some proceeding, either civil or criminal, instituted by the properpublic authorities; but if a duty is imposed upon him for the benefit of anindividual, the latter has his private action to recover damages for anyfailure in performance whereby he is injured. The difference between the publicand the private duties is well illustrated in cases arising under the postoffice laws. The Postmaster General has duties to perform, which are of highimportance to the nation and to all its people; but they are public dutiesexclusively, and he never becomes charged with obligations to any particularperson, so as to be liable to individual actions.[1] It is differentwith a local postmaster. When mail matter is received at his office, directedto a particular person, it becomes his duty to that person to deliver it ondemand, and he is liable to a suit for damages in case ofrefusal.[2] A like distinction exists between the duties of theSecretary of the Treasury and the collector of the customs at a port: theformer is responsible only to the government for the faithful performance ofduty; but the latter owes duties to those whose imported goods pass through hishands, and he may become liable to private suits for oppressive conduct andillegal charges.[3] So the duties of the United States marshal,which resemble those of the sheriff, are to a large extent duties toindividuals, and may frequently subject him to suits. So any Federal
[1] Lane v. Cotton, 1 Ld. Raym 646; S. C. 12 Mod. 472,and 1 Salk. 17; Smith v. Powditch, Cowp. 182; Rowning v.Goodchild, 2 W. Bl. 906; Whitfield v. Le Despencer, Cowp 754, 765.
[2] Teall v. Felton, 1 N. Y. 537; S. C. in error, 12How. 284.
[3] Barry v. Arnaud, 10 Ad. & El. 646.
officer may become involved in private suits on allegations that, in thepretended discharge of duty, he has trespassed on the rights of third parties.All these, and many others which might be named, are cases coming within thescope of the Federal judicial power, and many of them are cases in which itmight be exceedingly important to the Federal authority that they be referredto the Federal courts for final adjudication.
Accordingly it is provided by statute that causes may be removed fromthe State to the proper Circuit Courts of the United States in the followingcases:[1]
Any suit of a civil nature at law or in equity arising under theConstitution or laws of the United States or treaties made under its authority,of which the Circuit Courts of the United States are given originaljurisdiction by section one of the act,[2] may be removed by thedefendant or defendants.
Any other suit of a civil nature at law or in equity, of which theCircuit Courts are given jurisdiction by section one of the act, brought in aState court, may be removed by the defendant or defendants, if they arenon-residents of that State.
When in any suit mentioned in this section there is a controversy whichis wholly between citizens of different States, and which can be fullydetermined as between them, either one or more of the defendants actuallyinterested in such controversy may remove said suit.[3]
[1] Proceedings to appropriate property to public uses underthe eminent domain are cases removable to the Federal courts, where thealienage or citizenship is such as to give the right. Warren v. RailroadCo., 6 Biss. 425; Patterson v. Boom Co., 3 Dill. 465; Boom Co. v.Patterson, 98 U. S. 403.
[2] The part of the section referred to is given,ante, p. 138. The fact that the case arises tinder the Constitution,laws, or treaties must appear by plaintiff's own pleadings. Postal TelegraphCo. v. Alabama, 155 U. S. 482; Chappell v. Waterworth, 155 U. S.102.
[3] The controversy must be what is known as a separablecontroversy, that is, the suit must be divisible into two or moreindependent suits, one of which is wholly between citizens of differentStates.
Where a suit is pending, in which there is a controversy between acitizen of the State in which the suit is brought and a citizen of anotherState, any defendant, being such citizen of another State, may remove suchsuit, at any time before the trial thereof, when it shall be made to appear tothe Circuit Court that from prejudice or local influence he will not be able toobtain justice in such State court, or in any other State court to which saiddefendant may because of such prejudice and local influence have the right toremove said cause; provided that if the cause is severable and can be justlydetermined in the State court as to the other defendants, it may be remanded asto such defendants.
Where a suit involves the title to land, and it is made to appear thatthe parties claim title under grants from different States, the suit may alsobe removed.[1]
Also, when any civil suit or criminal prosecution is commenced in anyState court, for any cause whatsoever, against any person who is denied, orcannot enforce, in the judicial tribunals of the State, or in the part of theState where such suit or prosecution is pending any right secured to him by anylaw providing for the equal civil rights of citizens of the United States, orof all persons
[1] Act of March 3, 1887, 24 Stat. at Large, 552, as amendedby act of August 13, 1888, 25 Stat. at Large, 434, §§ 1 and 2. Theright to remove does not depend on the validity of the claim set up under theConstitution and laws. It is enough if it involves a real controversy. SouthernPacific R. R. Co. v. California, 118 U. S. 109. A case is removable asarising under laws of United States where the validity of a land patent isinvolved. Mitchell v. Smale, 140 U. S. 406. See cases ante, pp.125, 126. To authorize removal on the ground of local prejudice, $2,000 must beinvolved, and the proof must convince the court of the truth of the groundalleged. A perfunctory showing by a formal affidavit is not enough. In rePennsylvania Co., 137 U. S. 451. As to what are separable controversies, seeGraves v. Corbin, 132 U. S. 571; Louisville, &c. R. R. Co. v.Wangelin, 132 U. S. 599; Brown v. Trousdale, 138 U. S. 389; Bellairev. Baltimore & Ohio R. R., 146 U. S. 117. As to construction ofwords "before the trial thereof," see Fisk v. Henarie, 142 U. S.459.
within the jurisdiction of the United States; or against any officer,civil or military, or other person, for any arrest or imprisonment, or othertrespasses or wrongs, made or committed by virtue of or under color ofauthority derived from any law providing for equal rights as aforesaid; or forrefusing to do any act on the ground that it would be inconsistent with suchlaw, such suit or prosecution may, upon the petition of the defendantstating the facts and verified by oath, be removed for trial into the nextCircuit Court to be held in the district.[1]
Also, when any suit or criminal prosecution is commenced in any court ofa State against any officer appointed under or acting by authority of anyrevenue law of the United States; or against any person acting under or byauthority of such officer, on account of any act done under color of his officeor of any such law, or on account of any right, title, or authority claimed bysuch officer or person under any such law; or is commenced against any personholding property or estate by title derived from any such officer, and affectsthe validity of any such revenue law, such suit or prosecution may beremoved for trial into the Circuit Court of the United States for the district,upon the petition of the defendant setting forth the nature of the suit orprosecution, and duly verified.[2]
Also, whenever a personal action is brought, in any State court, by analien, against a citizen of a State who is, or when the action accrued was, acivil officer of the
[1] Rev. Stat. U. S., § 641. See Texas v. Gaines,2 Woods, 342; Strauder v. West Virginia, 100 U. S. 303; Neal v.Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110. The denial ofa right or inability to enforce it must be one arising from the Constitution orlaws of the State. Gibson v. Mississippi, 162 U. S. 565.
[2] Rev. Stat. U. S., § 643. Criminal prosecutions foralleged offences against State laws may be removed from the State to theFederal court when the facts are such as to bring them within the terms of Rev.Stat. U. S., § 643, above cited. Tennessee v. Davis, 100 U. S. 257;Davis v. South Carolina, 107 U. S. 597.
United States, being a non-resident of the State where suit is brought,the action may be removed into the Circuit Court of the United States for thedistrict, in the manner provided for the cases last abovementioned.[1]
In some of the cases in which removal of causes is provided for, thereis no act of Congress which would give to the Federal courts originaljurisdiction. Nevertheless, it is competent to give jurisdiction of casesremoved, provided they come within the grant of judicial power by theConstitution.[2]
The right of removal cannot be taken away or limited by State laws.Therefore, a right to recover damages for a personal injury arising under aState statute may be enforced in the Federal court by a citizen of anotherState against a citizen of the State where suit is brought, notwithstanding theState statute undertakes to limit the remedy to suits in its owncourts.[3] And the right of a foreign corporation to do business ina State cannot be made conditional on its waiving the right to remove suitsagainst it to the Federal courts, and the waiver itself, if made, would bevoid.[4]
The right to transfer a cause to the Federal court being statutory, thecase shown by the petition must come clearly within the statute, or it will beineffectual.[5] While, in general, "any proceeding before a court isa
"suit" within the statute, one before an administrative board isnot.[6] If the transfer is actually made on in-
[1] Rev. Stat. U. S., § 644.
[2] Gaines v. Fuentes, 92 U. S. 10.
[3] Railway Co. v. Whitton, 13 Wall. 270.
[4] Insurance Co. v. Morse, 20 Wall. 445; Barronv. Burnside, 121 U. S. 186; Martin v. Baltimore & Ohio R. R.,151 U. S. 673.
[5] Insurance Co. v. Pechner, 95 U. S. 183; GoldWashing, &c. v. Keyes, 96 U. S. 199. But a State court is not boundto surrender jurisdiction until a case is made which shows on the face of thepapers a right to remove. Stone v. South Carolina, 117 U. S. 430. Anapplication may not be conditioned upon the decision of a motion to dismisspending in the State court. Manning v. Amy, 140 U. S. 137.
[6] Upshur Co. v. Rich, 135 U. S. 467, and cases citedand discussed.
sufficient papers, the Federal court will remand the case on itsattention being called to the defect;[1] but if they are sufficient,the State court can take no further proceedings in the cause except such as areincident to the removal.[2]
Habeas Corpus. The Supreme Court and the Circuit andDistrict Courts have power to issue the writ of habeas corpus, and theseveral justices and judges thereof, within their respective jurisdictions,have also power to issue it, for the purposes of an inquiry into the cause ofrestraint upon liberty. But in no case shall the writ extend to a prisoner injail, unless where he is in custody under or by color of the authority of theUnited States; or is committed for trial before some court thereof; or is incustody for an act done or omitted in pursuance of a law of the United States,or of an order, process, or decree of a court or judge thereof;[3]or is in custody in violation of
[1] Gold Washing, &c. Co. v. Keyes, 96 U. S. 199.All disputed questions of fact raised upon petitions for removal are to bedetermined by the Federal court. Kansas City, &c. R. R. Co. v.Daughtry, 138 U. S. 298.
[2] Steamship Co. v. Tugman, 106 U. S. 118. Where acase has once been tried in the State court, and the rule of law settled forits determination in the highest State court, if afterwards a new trial isgranted, and the case then transferred to the Federal court, the latter willapply the same rule of law in disposing of it. Hazard v. Railroad Co., 4Biss. 453.
[3] This particular case was provided for by what was knownas the "Force Bill," of March 2, 1833, 4 Stat. at Large, 632, passed tocounteract South Carolina measures looking to the nullification of Federalrevenue laws. It was first called in requisition, however, to prevent thenullification of the Fugitive Slave Law. The United States marshal for thedistrict of Ohio, disregarding an order by a State judge for the discharge fromcustody of a person held by him as a fugitive slave, was proceeded against asfor a contempt of court. He was brought before Mr. Justice McLean at chambers,and discharged. The proceedings showed on their face that the State judge hadno jurisdiction, and the discharge of the marshal followed as of course.Robinson, ex parte, 6 McLean, 355. See Ex parte Bridges, 2 Woods, 428. InUnited States v. The Jailer of Fayette Co., Ky., 2 Abb. U. S. 265, thesame law was applied to a different case. The relator who
the Constitution, or of a law or treaty of the United States; or, beinga subject or citizen of a foreign state and domiciled therein, is in custodyfor an act done or omitted under any alleged right, title, authority,privilege, protection, or exemption claimed under the commission or order orsanction of any foreign state, or under color thereof, the validity and effectwhereof depend upon the law of nations;[1] or unless it is necessaryto bring the prisoner into court to testify.[2] This last is aprovision for facilitating the investigation of facts in Federal tribunals, andall the other cases mentioned are cases in which the national authority is insome way involved.[3] The Supreme Court has authority to issue thewrit, but, except in cases affecting ambassadors, ministers, or consuls, orthose in sued out the writ was in the custody of the jailer under a regularcommitment, made by a court of competent jurisdiction under the laws ofKentucky, charging him with murder. Nothing on the face of the papers indicatedthat the case was any other than a common case of the crime charged. Therelator, however, offered to show that the act with which he was charged wasdone by him under the authority of the United States in the execution of itsrevenue laws. Judge Ballard, United States District Judge, entered upon anexamination of the facts, and, reaching the conclusion that the prisoner wasjustified, ordered him discharged. See also Ex parte Jenkins, 2 Wall. Jr. C. C.521. The principal question which the above cases present must be regarded assettled by In re Neagle, 135 U. S. 1, where a man who was attacking JusticeField, while he was travelling his circuit in the performance of his duties,was killed by a deputy United States marshal, and the latter, being chargedwith murder by the State of California, was released on habeas corpus bythe United States Circuit Court. The Supreme Court, having reached theconclusion that the marshal's act was justifiable and was done in pursuance ofa law of the United States, and that his imprisonment was in violation of thelaws thereof, held that the case was within the statute, and that he was notanswerable for his act to the State of California.
[1] This provision was made by act of Aug. 29, 1842, 5 Stat.at Large, 529, and was enacted in consequence of the prosecution in New York ofa British subject for an act which his government avowed.
[2] Rev. Stat. U. S., §§ 751-753.
[3] There is no jurisdiction, for example, to interfere withthe custody of children, even where there is diverse citizenship. In re Burrus,136 U. S. 586.
which a State is a party, it can only be done for a review of thejudicial decisions of some inferior officer or court.[1] In theexercise of this revising power it may issue the writ;[2] and italso has jurisdiction of appeals from rulings of the Circuit Courts on writsissued by them in certain cases provided for by statute.[3]
The general authority to examine, by means of this writ, into unlawfulrestraints upon personal liberty, has not been conferred upon the UnitedStates, and therefore remains with the States.[4] Subject to theparamount authority of the national government to determine whether personsheld by its courts and officers are properly held, the States may inquire intothe grounds upon which any person within their limits is held, and maydischarge him if his restraint is illegal, even though the illegality arisesfrom violation of the Constitution and laws of the United States.[5]But if State tribunals issue the writ for a prisoner detained under Federalauthority, it must be dismissed when return is made showing thefacts.[6] A prisoner held under State process for extradition toanother State may have a habeas corpus from a Federal court or judge;the
[1] Ex parte Hung Hang, 108 U. S. 552.
[2] Ex parte Watkins, 7 Pet. 568; Ex parte Milburn, 9 Pet.704; Matter of Kaine, 14 How. 103; Ex parte Virginia, 100 U. S. 339.
[3] Act of March 3, 1885, 23 Stat. at Large, 437, and Rev.Stat. U. S., § 763, as amended by act of March 3, 1891, 26 Stat. at Large,826, 828, c. 517. See In re Lennon, 150 U. S. 393; Horner v. UnitedStates, 143 U. S. 570.
[4] Ex parte Dorr, 3 How. 103; Dekrafft v. Barney, 2Black, 704. A Federal court may, in advance of a trial in a State court for anoffence against a State law, which is void under the Federal Constitution,discharge a defendant, but ordinarily, when bail is allowed, it will not; Exparte Royall, 117 U. S. 241; and in general will discharge a prisoner only in acase of urgency, leaving him to assert his constitutional rights before theState courts, and finally, if necessary, to carry the suit on writ of error tothe Federal Supreme Court. Whitten v. Tomlinson, 160 U. S. 231; Bakerv. Grice, 169 U. S. 284; In re Duncan, 139 U. S. 449.
[5] Robb v. Connolly, 111 U. S. 624.
[6] Ableman v. Booth, 21 How. 506; Tarble's Case, 13Wall. 397.
process of extradition being provided for by, and taken under, theConstitution of the United States.[l]
The writ of habeas corpus cannot be used as a writ of error. Ifan inferior court or an officer has jurisdiction to act in the matter inquestion, the action will not be set aside for irregularities or errors ofjudgment.[2]
Appellate Jurisdiction. In all cases to which the Federaljudicial power extends, except those in which original jurisdiction isconferred upon it, the Supreme Court has appellate jurisdiction, both as to lawand fact, with such exceptions and under such reservations as Congress shallmake.[3] What the cases are in which appeals may be taken from theState courts has been shown; and provision has also been made by variousstatutes for the exercise of appellate jurisdiction in cases heard in theFederal courts. But many cases are allowed to be finally determined in theCircuit Court of Appeals,[4] the Circuit and District Courts, andthe Court of Claims.
[1] Ex parte Smith, 3 McLean, 121.
[2] In re Lane, 135 U. S. 443; Stevens v. Fuller, 136U. S. 468; In re Wood, 140 U. S. 278. So as to the ruling of an officer inextradition proceedings. In re Oteiza, 136 U. S. 330; Ornelas v. Ruiz,161 U. S. 502; Bryant v. United States, 167 U. S. 105. A conviction ofmurder will not be set aside because too few grand jurors found the indictment.Ex parte Wilson, 140 U. S. 575. If, however, there is no jurisdiction to imposethe restraint, the prisoner will be discharged, as in case of punishment forcontempt of a void order of court. In re Ayers, 123 U. S. 443; or in case of asecond sentence for the same offence, in contravention of an expressconstitutional immunity. Nielsen, Petitioner, 131 U. S. 176.
[3] Const., Art. III. § 2, cl. 2. In most cases therecan be no appeal from the Circuit Courts unless $5,000 is involved in thejudgment. As to the mode of determining the amount involved where there areseveral parties in equity or in admiralty with distinct interests, or wherejudgment goes for defendant, see Smith Purifier Co. v. McGroarty, 136 U.S. 237; Handley v. Stutz, 137 U. S. 366; Clay v. Field, 138 U. S.464; Henderson v. Coal Co , 140 U. S. 25; Gorman v. Havird, Id.943. If a case is dismissed for want of jurisdiction, the jurisdictional pointmay be reviewed by the Supreme Court, irrespective of the amount involved. 25Stat. at Large, 693.
[4] Established by act of March 3, 1891, 26 Stat. at Large,826.
General Principles. The Federal courts exercise thejurisdiction conferred upon them, and restrain their action within it,according to certain general principles, some of which are declared by statute,but the most of which arise from a consideration of the general nature of theconstitutional structure, and from rules of comity recognized and acted uponbetween independent jurisdictions, or between jurisdictions having concurrentauthority, according as the case may be. The principal of these may be herementioned.
The Law Administered. It has been mentioned in anotherplace that each of the several States has a common law of its own, derived inthe case of most of them from the common law of England, but modified more orless in adoption by circ*mstances, usage, or statutes. This common lawdetermines to a large extent the civil rights of the people, and it also makesmany acts punishable as crimes. But the United States as such can have nocommon law. It derives its powers from the grant of the people made by theConstitution, and they are all to be found in the written law, and notelsewhere.[1] It must therefore find its power to punish crimes inlaws of Congress passed in pursuance of the Constitution, defining the offencesand prescribing what courts shall have jurisdiction over them. No act can be acrime against the United States which is not made or recognized as such byFederal Constitution, law, or treaty.[2] But the Federal courtssitting in the several States, where their jurisdiction depends upon thecharacter or residence of the parties who sue or are sued, administer for themost part the local law, and they take notice of the State common law, usages,and statutes, and apply them as the State courts would apply them in likecontroversies.[3] In all such cases, if the de-
[1] Wheaton v. Peters, 8 Pet. 591, 658; Bucherv. Cheshire R. R. Co., 125 U. S. 555.
[2] United States v. Hudson, 7 Cranch, 32.
[3] Livingston's Lessee v. Morse, 7 Pet. 469; Tioga R.R. Co. v. Blossburg, &c. R. R. Co., 20 Wall. 137; Case v.Kelly, 133 U. S. 21.
cisions of the State courts afford precedents for their guidance, theFederal courts are to follow them for uniformity, and the State decisions willthus become the final rule and authority on questions of State law, for likereasons to those which require finality to Federal decisions on questions offederal law.[1] And the Federal courts will be particularly carefulto follow State decisions on questions involving the title to land or otherpermanent property.[2] It is therefore a general rule, that, uponquestions of the construction, operation, or force of any provision of theState constitution or laws, or of the validity of any State enactment, or anypower, right, privilege, or exemption claimed under State authority, or of theforce or application of the local common law or usages, the decisions of theState courts will furnish the rule of decision for the Federalcourts,[3] and if the judgments of the State court of last resortare found to be in conflict, the Federal courts will follow the last settledadjudications.[4]
But there are certain cases in which this rule cannot be applied,because the reasons on which it rests are inapplicable. It cannot, for example,be applied in any case where the decision of the State court involved aquestion of national authority, or any right, title, privilege, or exemptionderived from or claimed under the Constitution or any law or treaty of theUnited States.[5] Nor
[1] Townsend v. Todd, 91 U. S. 452; Elmwood v.Marcy, 92 U. S. 289; Railroad Co. v. Georgia, 98 U. S. 359.
[2] Irvine v. Sim's Lessee, 3 Dall. 425; Walkerv. Harbor Commissioners, 17 Wall. 648. A single judgment of a Statecourt on a question of local law, unless it has become a rule of property, isnot conclusive on a Federal court, though entitled to respect. Gibson v.Lyon, 115 U. S. 439.
[3] Shelby v. Guy, 11 Wheat. 361; Elmwood v.Marcy, 92 U. S. 289; Bucher v. Cheshire R. R. Co. 125 U. S. 555; Gormleyv. Clark, 134 U. S. 338; Detroit v. Osborne, 135 U. S. 492;Leeper v. Texas, 139 U. S. 462; Bauserman v. Blunt, 147 U. S.647.
[4] Green v. Neal's Lessee, 6 Pet. 291; Suydamv. Williamson, 24 How. 427. See Fairfield v. Gallatin, 100 U. S.47.
[5] State Bank v. Knoop, 16 How. 369; Jefferson BranchBank v
can it be applied to questions not dependent upon local statutes orusages; such as the construction, operation, and negotiability of bills ofexchange and other commercial contracts, contracts of insurance and bailment,and questions of injury dependent on principles which are of generalrecognition.[1] Nor are State decisions upon the validity orconstruction of a State statute binding when the statute is in the nature of acontract, and private rights have accrued under it, or when contracts have beenmade under it sanctioned by State decisions afterwards overruled.[2]So, if when the contract is made the State courts have made no ruling upon thestatute, or if their rulings are conflicting, the Federal courts will determinefor themselves, independently of State decisions, its construction andvalidity.[3]
The States cannot enlarge the Federal jurisdiction, and confer authorityover new cases upon the Federal courts. But the Federal laws, nevertheless,recognize such new rights as are given by State statutes, and administerremedies in respect to them when cases arise over which they have jurisdictionunder the laws of Congress.[4] For example, where a State statutegives an action in its
Skelley, 1 Black, 436; New Orleans Water Works v. La. Sugar Co.,125 U. S. 18. The question in these cases was whether a State statute impairedthe obligation of a contract based on a previous statute. See also Yick Wov. Hopkins, 118 U. S. 356.
[1] Chicago v. Robbins, 2 Black, 418; Boyce v.Tabb, 18 Wall. 546; Venice v. Murdock, 92 U. S. 494; Pana v.Bowler, 107 U. S. 529; Myrick v. Mich. Cent. R. R. Co, 107 U. S. 102;Liverpool, &c. Nav. Co. v. Phenix Ins. Co., 129 U. S. 397.
[2] Gelpcke v. Dubuque, 1 Wall. 175; Olcott v.Supervisors, 16 Wall. 678.
[3] Burgess v. Seligman, 107 U. S. 20; Pleasant T'pv. Ins. Co., 138 U. S. 67; Knox County v. Ninth National Bank,147 U. S. 91. See Enfleld v. Jordan, 119 U. S. 680.
[4] Ex parte McNiel, 13 Wall. 236; Clark v. Smith. 13Pet. 195; Holland v. Challen, 110 U. S. 15; Ridings v. Johnson,128 U. S. 212; Whitehead v. Shattuck, 138 U. S. 146; Scott v.Neely, 140 U. S. 106; Cates v. Alien, 149 U. S. 451.
courts for the recovery of damages where death has been caused bywrongful act, neglect, or default, the party entitled to bring the action mayat his option sue in the Federal court, if, by reason of citizenship oralienage, he would be at liberty to enforce other rights in thatcourt.[1] On the other hand, Congress can confer no part of theFederal judicial power on the State courts, or on any courts not established byits own authority;[2] and a State cannot give to its own courtsauthority to enforce or assist in the enforcement of a law of Congress, such,for example, as the Fugitive Slave Law.[3]
Conflict of Jurisdiction. In strictness there can be nosuch thing as a conflict of laws between State and nation. The laws of bothoperate within the same territory, but if in any particular case theirprovisions are in conflict, one or the other is void. If a law of Congress ispassed upon a subject which is within its constitutional powers, any Statelegislation opposed to it is a mere nullity. For this reason State statuteswhich in their operation would impede the execution of the Fugitive Slave Lawwere mere futile attempts to make laws, and were to be held void by the Statejudiciary as well as by the Federal.[1] So are all State laws whichtend to impede or obstruct the laws passed by Congress under its power toregulate commerce,[5] all which undertake to levy taxes on
[1] Railway Co. v. Whitton, 13 Wall. 270.
[2] Martin v. Hunter's Lessee, 1 Wheat. 304; Stearnsv. United States, 2 Paine, 300.
[3] Prigg v. Pennsylvania, 16 Pet. 539. Yet Statecourts, with their consent, may be invested with jurisdiction of some mattersarising under the laws of the United States; e. g, proceedings in eminentdomain. United States v. Jones, 109 U. S. 513. And State judicialofficers may be authorized by Congress to perform duties incidental to thejudicial power, such as taking affidavits, naturalizing aliens, etc. Robertsonv. Baldwin, 165 U. S. 275.
[4] Sim's Case, 7 Cush. (Mass.) 285; Bushnell's Case, 8 OhioSt. 77.
[5] State v. Steamship Constitution, 42 Cal 578;Council Bluffs v. Railroad Co., 45 Iowa, 338; Foster v. CountyCommissioners, 7 Minn.
the means selected by the general government for use in the exercise ofits essential powers,[1] on its land,[2] on thefranchises of corporations created by it,[3] and so on. On the otherhand, a Federal enactment taxing a State or its municipal corporations isinoperative,[4] and so is one undertaking to establish regulationsof local commerce within the States, as it cannot interfere with the operationof State laws on the same subject.[5] In these cases the Federal andState courts, if the question came before them, would recognize the same rule,and each administer the same law. If they chanced to differ in opinion, anappeal to the Federal Supreme Court must determine the controversy.
But questions of much delicacy sometimes arise, when the Federal andState courts, under their concurrent authority, may find their respectivejurisdictions invoked in the same controversy. This might lead to collisions,and to unseemly and perhaps dangerous controversies, if the action of thecourts were not directed by certain rules of good sense and comity devised topreserve harmony and insure an orderly administration of justice.
The most important of these rules is that the court which first obtainsjurisdiction of a controversy by the service of process, will not be interferedwith by the other in the exercise of that jurisdiction until final judgment andexecution.[6] The Federal courts will not there-
140; State Treasurer v. Railroad Co., 4 Houst. (Del.) 158, andcases cited ante, p. 71 et seq.
[1] Palfrey v. Boston, 101 Mass 329; Montgomery Co.v. Elston, 32 Ind. 27; and cases ante, p 62.
[2] Van Brocklin v. Tennessee, 117 U. S. 151.
[3] California v. Central Pac. R. R. Co., 127 U. S.1.
[4] United States v. Railroad Co., 17 Wall. 322.
[5] United States v. He Witt, 9 Wall. 41; License TaxCases, § Wall. 462.
[6] Heidretter v. Oil-Cloth Co., 112 U. S. 294;Mallett v. Dexter, 1 Curt. 178; Tobey v. Bristol, 3 Story, 800;Wadleigh v. Veazie, 3 Sum. 165; Shoemaker v. French, Chase's Dec.305; The Celestine, 1 Biss. 1; Ruggles v. Simonton, 3 Biss. 325; Dalyv. The Sheriff, 1 Woods, 175;
fore enjoin the proceedings in a suit in a State court, nor a Statecourt those in a Federal court.[1] In every respect except where theacts of Congress have made special provision, the courts of the State and ofthe United States are as distinct and independent in the exercise of theirpowers as the courts of two separate and independent nations.[2]Therefore, where property is in the official custody of the ministerial officerof the courts of one jurisdiction, it cannot be taken from his custody onreplevin or other process issued by the courts of the other,[3] eventhough it be alleged that the officer holding it seized on process against oneperson the property of another.[4] The rule applies where theproperty and fran-
Sharon v. Sharon, 84 Cal. 424. This remark will of course beunderstood as subject to the right to remove causes from the State to theFederal courts in the cases provided by law.
[1] Diggs v. Wolcott, 4 Cranch, 179; City Bank of NewYork v. Skelton, 2 Blatch. 14; Ex parte Cabrera, 1 Wash. C. C. 232;Borer's Inter-State Law, 2d ed., 17-21. But a prosecuting attorney may beenjoined from proceeding under a statute which the United States Supreme Courthas held bad. Tuchman v. Welch, 42 Fed Rep. 548. While a State courtcannot thus be directly compelled by a Federal court to set aside an order, yetin a case where it has jurisdiction of the parties and subject-matter, aFederal court may afford equitable relief against a State court'sdetermination, where an imposition has been practised upon that court, and thepower conferred by it has been fraudulently exercised. Arrowsmith v.Gleason, 129 U. S. 86; Johnson v. Waters, 111 U. S. 640.
[2] Rogers v. Cincinnati, 5 McLean, 337, 339; Riggsv. Johnson County, 6 Wall. 166.
[3] Taylor v. Carryl, 20 How. 583. Nor can thepossession be disturbed by proceedings subsequently begun in a probate courtafter the death of the claimant. Rio Grande R. R. Co. v. Gomila, 132 U.S. 478.
[4] Freeman v. Howe, 24 How. 450; Covell v.Heyman, 111 U. S. 176; The Oliver Jordan, 2 Curt. 414. But the party claimingthe property may at his election sue the officer in trespass in such case,except where the officer has obeyed a writ which gave him no discretion, Buckv. Colbath, 3 Wall. 334; or he may sue his bond, Lammon v.Feusier, 111 U. S. 17; or he may apply to the equity side of the Federal courtfor the goods or the proceeds. Krippendorf v. Hyde, 110 U. S. 276;Gumbel v. Pitkin, 124 U. S. 131.
chises of a corporation have been taken judicial control of by a Statecourt and ordered sold; [1] and also where property is in the handsof a receiver appointed by a court;[2] and any attempt to disturbthe possession of the receiver, except by permission of the court appointinghim, will be a contempt of the authority of the court.[3]
The possession of the State courts, however, will not be allowed todefeat claims under the United States revenue laws, or under laws imposingforfeitures for offences.[4]
Essential Powers. The Federal courts have all the powerswhich inhere in courts in general, and may exercise them for the fullenforcement of their jurisdiction, until the judgments they render areperformed or satisfied.[5] For this purpose they are authorized bylaw to issue all the customary writs.[6] But they cannot exerciseState powers, even though -without doing so they are powerless to enforce theirjudgments. They may compel officers to levy taxes in proper cases, to satisfyjudgments rendered by them against municipal corporations;[7] butthey cannot appoint officers to make the levies when there are none toact.[8]
Territorial Courts. The provisions of the Constitutionwhich define the limits of the judicial power have no application to theTerritories. It is therefore competent for Congress to create courts for theTerritories, and confer upon them such jurisdiction as may seem necessaryor
[1] Fox v. Hempfield R. R. Co, 2 Abb. U. S. 151.
[2] Wiswall v. Sampson, 14 How. 52. Or anadministrator. Byers v. McAuley, 149 U. S. 608.
[3] De Visser v. Blackstone, 6 Blatch. 235; Wiswallv. Sampson, 14 How. 52; In re Tyler, 149 U. S. 164. But see Moranv. Sturges, 154 U. S. 256.
[4] United States v. The Reindeer, 2 Cliff. 57.
[5] Bank of United States v. Halstead, 10 Wheat.51.
[6] Rev. Stat of U. S., § 716.
[7] Von Hoffman v. Quincy, 4 Wall. 535; Memphisv. Brown, 97 U. S. 300.
[8] Rees v. Watertown, 19 Wall. 107; Heine v.Commissioners, 19 Wall. 655.
proper. And these courts are commonly empowered to exercise within theTerritories all the powers which within the States are exercised by both theState and Federal courts.[1] They are created by Congress, but thepractice, pleadings, and forms and modes of proceeding, are left to beregulated by the territorial legislatures.[2]
Courts-Martial. It is competent for Congress, by the rulesand articles of war, to provide for the ordering of courts-martial for thetrial of offences arising in the military and naval service;[3] andthese courts, except as may be otherwise provided, will execute their dutiesand regulate their mode of proceeding by the customary militarylaw.[4] But a person not enrolled or liable to be enrolled forservice cannot be subjected to the jurisdiction of such courts;[5]nor can the courts proceed against those who are liable without giving noticeand an opportunity of defence to the accused.[6] Where acourt-martial proceeds without authority, and restrains a party of his libertyor inflicts punishment, all the parties responsible for the action are liableto suits therefor in the common law courts.[7] The jurisdiction ofsuch courts may always be inquired into by civil courts, and a person heldunder their rules discharged if jurisdiction is wanting.[8]
Military Courts or Commissions. Offences against martiallaw and the laws of war, and all acts not justified by the laws of war, whichare calculated to impede or obstruct the operations of the militaryauthorities, or to
[1] American Ins. Co. v. Canter, 1 Pet. 511; Clintonv. Englebrecht, 13 Wall. 434; Gon-Shay-Ee, Petitioner, 130 U. S.343.
[2] Hornbuckle v. Toombs, 18 Wall. 648; Cloughv. Curtis, 134 U. S. 361.
[3] Re Bogert, 2 Sawyer, 396; Johnson v. Sayre, 158 U.S. 109. [4] Martin v. Mott, 12 Wheat. 19.
[5] Wise v. Withers, 3 Cranch, 331.
[6] Meade v. Deputy Marshal, 2 Car. Law Repos.320.
[7] Milligan v. Hovey, 3 Biss. 13. See Mostynv. Fabrigas, Cowp. 161.
[8] In re Grimley, 137 U. S. 147.
render abortive any attempt by the government to enforce its authority,may be punished by military courts or commissions organized by the President ascommander-in-chief, or by the immediate military commander, or establishedunder the authority of Congress. But these tribunals cannot try offencesagainst the general laws when the courts of the land are in the performance oftheir regular functions, and no impediment exists to a lawful prosecutionthere.[1] An impediment does exist, however, when martial law islawfully declared;[2] and this creates an exception to the generalrule that the military in times of peace must be in strict subordination to thecivil power, and in times of war also, except on the theatre of warlikemovements.[3] The military tribunals may also take cognizance ofoffences alleged to have been committed by soldiers upon citizens within thefield of military operations against an armed rebellion, while the civil law isfor the time suspended, and to the exclusion of the ordinary jurisdiction whenrestored.[4]
Political Questions. Over political questions the courtshave no authority, but must accept the determination of the politicaldepartments of the government as conclusive. Such are the questions of theexistence of war, the restoration of peace,[5] the de factoor rightful government of another country,[6] the authority offoreign ambassadors and ministers,[7] the admission of a State tothe Union,[8] the restoration to constitutional relations of a Statelately in rebellion,[9] the extent of the jurisdiction of aforeign
[1] Milligan, ex parte, 4 Wall. 2.
[2] Luther v. Borden, 7 How. 1. [3] 1 Bl.Com., 413-415.
[4] Coleman v. Tennessee, 97 U. S. 509.
[5] United States v. Anderson, 9 Wall. 56.
[6] The Hornet, 2 Abb. U. S. 35; Gelston v. Hoyt, 3Wheat. 246.
[7] Foster v. Neilson, 2 Pet. 253.
[8] See Luther v. Borden, 7 How. 1; Marsh v.Burroughs, 1 Woods, 463.
[9] Georgia v. Stanton, 6 Wall. 50.
power,[1] the jurisdiction of the United States over anisland in the high seas,[2] the right of Indians to recognition as atribe,[3] and so on.
Final Authority in Construction. The several departmentsof the government are equal in dignity and of co-ordinate authority, andneither can subject the other to its jurisdiction, or strip it of any portionof its constitutional powers. But the judiciary is the final authority in theconstruction of the Constitution and the laws, and its construction should bereceived and followed by the other departments. This results from the nature ofits jurisdiction; questions of construction arise in legal controversies, andare determined by the courts, and when determined the courts have power to giveeffect to their conclusions. Their judgments thus become the law of the land onthe points covered by them, and a disregard of them, whether by privatecitizens or by officers of the government, could only result in newcontroversy, to be finally determined by the judiciary in the same way. But thecourts have no authority to pass upon abstract questions, or questions notpresented by actual litigation, and have therefore nothing to do with questionswhich relate exclusively to executive or legislative authority; nor is thereany method in which their opinions can be constitutionally expressed, so as tohave binding force upon either the executive or the legislature, when thequestion presents itself, not as one of existing law, but as one of what it isproper or politic or competent to make law for the future. The judiciary,though the final judge of what the law is, is not the judge of what the lawshould be.[4]
[1] Williams v. Suffolk Ins. Co., 13 Pet. 415; In reCooper, 143 U. S. 472. It is different when the question concerns the boundarybetween a Territory and a State in the Union. United States v. Texas,143 U. S. 621.
[2] Jones v. United States, 137 U. S. 202.
[3] The Kansas Indians, 5 Wall. 737; United States v.Holliday, 3 Wall. 407.
[4] Some few of the States make provision by theirconstitutions
It is very proper, however, that the judiciary, in passing uponquestions of law which have been considered and acted upon by the otherdepartments, should give great weight to their opinions, especially if theyhave passed unchallenged for a considerable period.[1] The judiciaryhave often yielded to it when the correctness of a practical construction ofthe law by the executive departments, in the performance of their own duties,was in question;[2] but they cannot do this when, in the opinion ofthe court, the construction is plainly in violation of theConstitution.[3]
whereby the executive or the legislature may call upon the highest courtof law of the State for its opinion upon important questions as a guide totheir own action.
[1] Stuart v. Laird, 1 Cranch, 299; Bank of UnitedStates v. Halstead, 10 Wheat. 51, 63; United States v. Healey,160 U. S. 136.
[2] Edwards's Lessee v. Darby, 12 Wheat. 210; Surgettv. Lapice, 8 How. 48; Bissell v. Penrose, 8 How. 317; Union Ins.Co. v. Hoge, 21 How. 35; United States v. Gilmore, 8 Wall. 330;United States v. Moore, 95 U. S. 760.
[3] Story on Const., § 407; Cooley, Const. Lim., 6thed., 81.
CHAPTER VII. CHECKS AND BALANCES IN GOVERNMENT.
What they are. The American system of government is anelaborate system of checks and balances. As enumerated by one of the earlystatesmen of the country, these are as follows: First, the States arebalanced against the general government. Second, the House of Representativesis balanced against the Senate, and the Senate against the House. Third, theexecutive authority is in some degree balanced against the legislature. Fourth,the judiciary is balanced against the legislature, the executive, and the Stategovernments. Fifth, the Senate is balanced against the President in allappointments to office, and in all treaties. Sixth, the people hold in theirown hands the balance against their own representatives by periodicalelections. Seventh, the legislatures of the several States are balanced againstthe Senate by sexennial elections. Eighth, the electors are balanced againstthe people in the choice of President and Vice-President. And this, it isadded, is a complication and refinement of balances which is an invention ofour own, and peculiar to this country.[1]
The invention, nevertheless, was suggested by the British constitution,in which a system almost equally elaborate was then in force. In its outwardforms that system still remains; but there has been for more than a century agradual change in the direction of a concentration of legislative and executivepower in the popular House of Parliament, so that the government now issometimes said with no great departure from the fact, to be a government[1] Letter of John Adams to John Taylor, Works, vi. 467.
by the House of Commons. The judiciary, indeed, retains its independenceand power, and these have been somewhat strengthened as bills of attainder arediscontinued, and as the judicial authority of the House of Lords is narrowedby legislation.
Electors of President. Of the checks in Americangovernment above enumerated, some have proved wholly illusory. This isemphatically true of the eighth. The theory of the Constitution is that thereshall be chosen by each State a certain number of its citizens, enjoying thegeneral confidence of the people, who shall independently cast their suffragesfor President and Vice President of the United States, according to thedictates of their individual judgments. This theory was followed in the firstthree presidential elections, but from that time it fell into practicaldisfavor, and now not only is the theory obsolete, but it would be thought inthe highest degree dishonorable if an Elector were to act upon it. In practice,the persons to be voted for are selected by popular conventions, in advance ofthe choice of Electors, and these officers act as mere automata in registeringthe will of those who selected them.
States and Nation. The Constitution itself imposes veryeffectual checks on the powers of the States for the protection of federaljurisdiction, by expressly restraining them from the exercise of some of themost important powers of sovereignty, and by subordinating others to theauthority of Congress. These are all alluded to elsewhere. To maintain theseunimpaired, the federal government is made, as against the States, the finaljudge of its own powers. Nothing more need be said to show that encroachmentupon the federal jurisdiction is effectually provided against.
On the other hand, there were various ways in which the States wereexpected to constitute a balance to the powers of the federal government.First, in the division of powers between States and nation, the largerportion,
including nearly all that touched the interests of the people in theirordinary business relations and in their family and social life, were reservedto the States. All that related to the family and the domestic relations, theadministration and distribution of estates, the forms of contract andconveyance, the maintenance of peace and order in the States, the punishment ofcommon-law offences, the making provision for education, for public highways,for the protection of personal liberty and liberty of worship, all thesepowers were withheld from the jurisdiction of the federal government, andretained by the States, and their retention was calculated to give to the bodyof the people a larger interest in a proper administration of state authoritythan in that of the nation. Second, the States elected the representatives inCongress and chose the senators, and these would naturally be expected torepresent the opinions, feelings, and sentiments of their constituents, and toso act in their official positions as to avoid all encroachments on the powersof the States. The President was also chosen by persons selected by the Statesfor the purpose, who would naturally reflect the local views. Third, the Stateswere given the privilege to originate amendments to the Constitution of theUnited States whenever they should be found necessary, and it was expected thatthey would make use of this privilege if at any time the federal governmentshould be found relatively too strong, or should be thought to haveunwarrantably extended its jurisdiction. From the nature of the case, however,it was impossible that the powers reserved to the States should constitute arestraint upon the increase of federal power, to the extent that was at firstexpected. The federal government was necessarily made the final judge of itsown authority, and the executor of its own will, and any effectual check to thegradual amplification of its jurisdiction must therefore be found in theconstruction put by those administering it upon the grants of the Constitution,and in their own sense of constitu-
tional obligation. And as the true line of division between federal andstate powers has from the very beginning been the subject of contention, and ofhonest differences of opinion, it must often happen that to advance and occupysome disputed ground will seem to the party having the power to do so a merematter of constitutional duty. The effectual checks upon the encroachment offederal upon state power must therefore be looked for, not in state power ofresistance, but in the choice of representatives, senators, and presidentsholding just constitutional views, and in a federal Supreme Court withcompetent power to restrain all departments and all officers within the limitsof their just authority, so far as their acts may become the subjects ofjudicial cognizance.[1] Such amendments to the Constitution as havehitherto been made have originated with the Congress, and, with the singleexception of that which takes from the federal judiciary the power to takecognizance of suits by individuals against States, none of them has taken fromthe United States any real authority.
Some other checks which are continuous and more effective are thefollowing.
Judicial Restraints on Legislative Encroachments. Thebusiness of the courts is, to apply the law of the land in such controversiesas may arise and be brought before them. Their authority is co-ordinate withthat of the legislature, neither superior nor inferior; but each with equaldignity must move in its appointed sphere.[2] But the judiciary, inseeking to ascertain what the law is which must be applied in any particularcontroversy, may possibly find that the will of the legislature, as expressedin
[1] It is no doubt true that, "in reference to all doubtfulquestions incident to our governmental system, the line of approach [should] bekept carefully in the foreground, and any intrusion thereon most vigilantlyavoided." Rorer, Inter-State Law, 2d. Ed., p. 12.
[2] Lindsay v. Commissioners 2 Bay (S. C.), 61; Batesv. Kimball, 2 Chip (Vt) 77
statute form, and the will of the people, as expressed in theConstitution, are in conflict, and the two cannot stand together. In such acase, as the legislative power is conferred by the Constitution, it is manifestthat the delegate has exceeded his authority; the trustee has not kept withinthe limits of his trust. The excess is therefore inoperative, and it is theduty of the court to recognize and give effect to the Constitution as theparamount law, and, by refusing to enforce the legislative enactment,practically nullify it.
The obligation to perform this duty, whenever the conflict appears, isimperative; but the duty is nevertheless a delicate one, because the court indeclaring a statute invalid must necessarily overrule the decision of thelegislative department, made in the course of the performance of its peculiarduties, and where it must be assumed to have acted on its best judgment. Thetask, therefore, is one to be entered upon with caution, reluctance, andhesitation, and never until the duty becomes manifestly imperative. Thefollowing general propositions will be found to state the obligations of dutyand of forbearance for such cases which are generally recognized.
1. The duty to pass upon a question of constitutional law may devolveupon a court of any grade, and of either the Federal or the State jurisdiction.Wherever the question can arise in court of the conformity of a statute to theConstitution, the court to whom the question is addressed must in some mannerdispose of it, and the power of the court to apply the law to the casenecessarily embraces the power to determine what law controls. In the absenceof authoritative precedents, there can be no other test of this than thejudgment of the court. The validity of a Federal statute may therefore be anecessary question for consideration in a State court, and that of a Statestatute in a Federal court. Nevertheless, when the court to whom the questionis addressed is not the court of last resort in respect thereto, it may well beexpected
to proceed with more than ordinary caution and hesitation, and toabstain altogether from declaring a statute invalid unless in the clearestcases, especially if, without serious detriment to justice, the decision can bedelayed until the superior court can have opportunity to pass upon it. Theremay be cases where, by inadvertence or accident, a bill which has gone throughall the forms required for valid legislation is, nevertheless, clearly andwithout question invalid; but except in such cases the spectacle of an inferiormagistrate, having merely police or other limited jurisdiction, assuming topass judgment upon the legislation of his State or country, and declare itinvalid, can only be ludicrous.[1]
2. The judicial sense of propriety and of the importance of the occasionwill generally incline the court to refuse a consideration of a constitutionalquestion without the presence of a full bench of judges. With many courts thisis a rule to which few exceptions are admitted, and those only which seem to beimperative.[2]
3. Neither as a rule will a court express an opinion adverse to thevalidity of a statute, unless it becomes absolutely necessary to thedetermination of a cause before it.[3] Therefore, in any case wherea constitutional question is raised, if the record presents some other andclear ground upon which the court may rest its judgment, and thereby render theconstitutional question immaterial to the case, the court will adopt thatcourse, and the question of con-
[1] Some courts have intimated that only the superior courtsshould assume to deny validity to a statute. Ortman v. Greenman, 4 Mich.291. Compare Mayberry v. Kelly, 1 Kans. 116.
[2] Briscoe v. Bank of Kentucky, 8 Pet. 118.
[3] Hoover v. Wood, 9 Ind. 286; Smith v. Speed,50 Ala. 277; Board of Education v. Mayor, 72 Ga. 353. Where theconstitutional question was not raised until after denial of rehearing in aState Supreme court, the United States Supreme court will not consider it.Butler v. Gage, 138 U. S. 52. The validity of a law ought not to bedetermined in advance of its actual operation. So held on application torestrain the publishing of returns of the vote under an alleged invalid localoption statute. Clayton v. Calhoun, 76 Ga. 270.
stitutional power will be left for consideration until a case ariseswhich cannot be disposed of without considering it, and when, consequently, adecision upon such question will be unavoidable.[1] This course hasnot always been followed; but it has seldom occurred that a constitutionalquestion has been considered settled, or been allowed to remain without furtherdispute and question where the opinion given upon it was rendered in a case notnecessarily requiring it. Want of jurisdiction of the particular case is alwaysreason why the court should abstain from expressing opinions on other questionswhich parties may attempt to raise.
4. The court will not listen to an objection made to theconstitutionality of an act by one whose rights are not affected by it, and whoconsequently can have no interest in defeating it.[2] For example,one who has received compensation for property appropriated by statute to apublic use will not be suffered afterwards to dispute the constitutionalvalidity of the statute.[3] The statute is assumed to be valid untilsome one complains of it whose rights it invades. The power of the court can beinvoked only when it is found necessary to secure and protect a party before itagainst an unwarranted exercise of legislative power to hisprejudice.[4]
5. Nor can a court declare a statute unconstitutional
[1] Ex parte Randolph, 2 Brock. 447; Freer v. Ford, 6N. Y. 177.
[2] Marshall v. Donovan, 10 Bush (Ky.), 681; Mobile,&c. R. R. Co. v. State, 29 Ala. 586; dough v. Curtis, 134 U.S. 361.
[3] Embury v. Connor, 3 N. Y. 511; Haskell v.New Bedford, 108 Mass. 208.
[4] Wellington, Petitioner, 16 Pick. (Mass.) 96; Statev. Rich, 20 Mo. 393; Burnside v. Lincoln Co. Ct., 86 Ky. 423. Topass upon the constitutionality of an act is the ultimate and supreme functionof the courts. "It is legitimate only in the last resort, and as a necessity inthe determination of a real, earnest, and vital controversy between parties. Itwas never thought that, by means of a friendly suit, a party beaten in thelegislature could transfer to the courts an inquiry as to the constitutionalityof the legislative act." Chicago, &c. Ry. Co. v. Wellman, 143 U. S.339.
and void when the objection to it is merely that it is unjust andoppressive, and violates rights and privileges of the citizen, unless it can beshown that such injustice is prohibited, or such rights and privilegesguaranteed by the Constitution. The propriety or justice or policy oflegislation, within the limits of the Constitution, is exclusively for thelegislative department to determine; and the moment a court ventures tosubstitute its own judgment for that of the legislature, it passes beyond itslegitimate authority, and enters a field where it would be impossible to setlimits to its interference, except as should be prescribed in its owndiscretion.[1] The protection against unwise or oppressivelegislation, within constitutional bounds, is by an appeal to the justice andpatriotism of the representatives of the people. If this fail, the people intheir sovereign capacity can correct the evil, but courts cannot assume theirrights.[2] The judiciary can only arrest the execution of a statutewhen it conflicts with the Constitution. It cannot run a race of opinions uponpoints of right, reason, and expediency with the law-makingpower.[3] The question of the validity of a statute must alwaysbe
[1] It has been well said by one judge: "If the legislatureshould pass a law, in plain and unequivocal language, within the general scopeof their constitutional powers, I know of no authority in this government topronounce such an act void, merely because, in the opinion of the judicialtribunals it was contrary to the principles of natural justice, for this wouldbe vesting in the court a latitudinarian authority which might be abused, andwould necessarily lead to collisions between the legislative and judicialdepartments, dangerous to the well-being of society, or at least not in harmonywith the structure of our ideas of natural government." Commonwealth v.McCloskey, 2 Rawle (Pa.), 374. See Bebee v. State, 6 Ind. 515, 528. Manyjudges think laws laying protective duties are contrary to natural justice; butif they were at liberty to decide the validity of legislation on such grounds,the ordinary legislation could not be carried on except with their assent.
[2] Bennett v. Bull, Baldw. 74; Pennsylvania R. R. Co.v. Riblet, 66
Penn. St. 164.
[3] Madison, &c. R. R. Co. v. Whiteneck, 8 Ind.217; Bull v. Read, 13
Grat. (Va.) 98.
one of legislative competency to enact it; not one of policy, propriety,or strict justice.
6. Nor can a statute be declared unconstitutional merely because in theopinion of the court it violates one or more of the fundamental principles ofrepublican liberty, unless it shall be found that those principles are placedbeyond legislative encroachment by the provisions of the Constitution itself.The principles of republican government are not a set of inflexible rules,vital and active in the Constitution even when unexpressed; but they aresubject to variation and modification from motives of policy and publicnecessity, and it is only in those particulars in which experience hasdemonstrated that any departure from the settled course must work injustice andconfusion, that it is customary to incorporate them in the Constitution in sucha way as to make them definite rules of action and decision. For example theprinciple that taxation and representation go together is important andvaluable, and should never be lost sight of in legislation; but, as commonlyunderstood, it can never be applied universally without admitting every personto the elective franchise; for taxes in some form fall upon all, therich and the poor, the infant and the adult, the male and the female, and federal taxes reach the unrepresented Territories as well as therepresented States. And it is obvious that, wherever a recognized principle offree government requires legislation for its practical application andenforcement, the body that passes laws for the purpose must determine, in itsdiscretion, what are the needs of legislation and what its proper limits. Thecourts cannot take such principles as abstract rules of law, and give thempractical force.[1]
7. When a question of Federal constitutional law is involved, thepurpose of the Constitution, and the object to be accomplished by anyparticular grant of power, are
[1] People v. Draper, 15 N. Y. 532; Baltimorea. State, 15 Md. 376; People v. Mahaney, 13 Mich. 498.
often most important guides in reaching the real intent; and the debatesin the Constitutional Convention, the discussions in the Federalist and in theconventions of the States, are often referred to as throwing important light onclauses in the Constitution which seem blind or of ambiguous import. We maydiscover from these what the general drift of opinion was as to the divisionline between Federal and State power on many subjects, and we can sometimesjudge from that whether a particular authority lies on one side of the line oron the other. But we shall be misled if we attempt in this manner to judge ofState legislative power when the limitations of the Federal Constitution arenot in question. We cannot test the validity of any State statute by a generalspirit which is supposed to pervade the State Constitution, but is notexpressed in words. Presumptively, when the people of the State, by theirConstitution, call into existence a legislative department, and endow it withthe function of making laws, they confer upon it the full and completelegislative power, as full and complete as the people, in the exerciseof sovereignty, could themselves have wielded it, subject only to suchrestrictions as were by the same instrument imposed. "The law-making power ofthe State recognizes no restraints, and is bound by none except such as areimposed by the Constitution. That instrument has been aptly termed alegislative act by the people themselves in their sovereign capacity, and istherefore the paramount law. Its object is, not to grant legislative power, butconfine and restrain it. Without the constitutional limitations, the power tomake laws would be absolute. These limitations are created and imposed byexpress words, or arise by necessary implication. The leading feature of theConstitution is the separation and distribution of the powers of thegovernment. It takes care to separate the executive, legislative, and judicialpowers, and to define their limits. The executive can do no legislative act,nor the legislature any executive act, and neither can exercise
judicial authority."[1] Presumptively, therefore, if an actof the legislative department is not an encroachment upon executive or judicialpower, it is valid. To show its invalidity, it is necessary to point out someparticular in which, either in form or substance, it is inconsistent with theConstitution. The inconsistency may consist, either, (1) in the failure toobserve some constitutional form which is made essential to a valid enactment,such as the taking of the final vote thereon by yeas and nays when theConstitution requires it; or (2) in the disregard of an express prohibition, aswhere it consists in a special charter of incorporation when the Constitutionforbids incorporation except under general laws; or (3) in the disregard ofsome fundamental right declared in the bill of rights, as would be a statutecompelling support of sectarian worship or schools when the Constitutionproclaims religious liberty. And in all these cases it is not the spirit of theConstitution that must be the test of validity, but the written requirements,prohibitions, and guaranties of the Constitution itself.[2]
8. A statute may sometimes be valid in part and invalid in otherparticulars. This often happens under State constitutions that require an actto contain but one object, which shall be expressed in the title. If in such acase the act embraces two objects while the title expresses but one, the actwill be unconstitutional and void as to the one not so expressed. So in theabsence of such a requirement the act might be void as to one object becausethe legislation attempted was expressly forbidden by the constitution, while inother particulars it was plainly within the legislative competency. The generalrule therefore is, that the fact that part of a statute is unconstitutionaldoes not justify the remainder being declared invalid also, unless all theprovisions are connected in subject-
[1] Sill v. Corning, 15 N. Y. 297; Sears v.Cottrell, 5 Mich. 251; Danville v. Pace, 25 Grat. (Va.) 1.
[2] Cooley, Const. Lim., 6th ed., 204-209
matter, depending on each other, operating together for the samepurpose, or otherwise so connected together in meaning that it cannot bepresumed the legislature would have passed the act otherwise than as a whole.It is immaterial how closely the valid and invalid provisions are associated inthe act; they may even be contained in the same section, and yet be perfectlydistinct and separable, so that the one may stand though the otherfall.[1] If, when the unconstitutional portion is stricken out, thatwhich remains is complete in itself, and capable of being executed inaccordance with the apparent legislative intent, wholly independent of thatwhich was rejected, it must be sustained. But if the intent of the act is toaccomplish a single purpose only, and some provisions are void, the whole mustfail unless sufficient remains to effect the object without the invalidportion. And if they are so mutually connected with and dependent on each otheras conditions, considerations, or compensations, as to warrant the belief thatthe legislature intended them as a whole, and that, if all could not be carriedinto effect, the legislature would not pass the residue independently, then, ifsome parts are unconstitutional, all the provisions that are thus dependent,conditional, or connected must fall with them.[2]
9. A doubt of the constitutional validity of a statute is neversufficient to warrant its being set aside. "It is not on slight implication andvague conjecture that the legislature is to be pronounced to have transcendedits powers, and its acts to be considered as void. The opposition between theConstitution and the law should be such that the judge feels a clear and strongconviction of their
[1] Commonwealth v. Hitchings, 5 Gray (Mass.), 482;Hagerstown v. Dechert, 32 Md. 369; State v. Clarke, 54 Mo.17.
[2] State v. Commissioners, 5 Ohio St 497; Statev. Dousman, 28 Wis. 541; Campau v. Detroit, 14 Mich 276; Willardv. People, 5 Ill. 461; Commonwealth v. Potts, 79 Penn. St. 164;Baker v. Braman, 6 Hill (N. Y.), 47; Pollock v. Farmers' Loan andTrust Co., 158 U. S. 601.
incompatibility with each other."[1] "It is but a decentrespect due to the wisdom, the integrity, and the patriotism of the legislativebody by which any law is passed, to presume in favor of its validity, until itsviolation of the Constitution is proved beyond all reasonabledoubt."[2] To be in doubt, therefore, is to be resolved, and theresolution must support the law.
This course is the opposite to that which is required of the legislaturein considering the question of passing a proposed law. Legislators have theirauthority measured by the Constitution; they are chosen to do what it permits,and nothing more, and they take solemn oath to obey and support it. When theydisregard its provisions, they usurp authority, abuse their trust, and violatethe promise they have confirmed by an oath. To pass an act when they are indoubt whether it does not violate the Constitution, is to treat as of no forcethe most imperative obligations any person can assume. A business agent whowould deal in that manner with his principal's business would be treated asuntrustworthy; a witness in court who would treat his oath thus lightly, andaffirm things concerning which he was in doubt, would be held a criminal.Indeed, it is because the legislature has applied the judgment of its membersto the question of its authority to pass the proposed law, and has only passedit after being satisfied of the authority, that the judiciary waive their owndoubts, and give it their support.[3]
10. The validity of legislation can never be made to depend on themotives which have secured its adoption, whether these be public or personal,honest or corrupt. There is ample reason for this in the fact that thepeople
[1] Fletcher v. Peck, 6 Cranch, 87, 128.
[2] Ogden v. Saunders, 12 Wheat. 213, 270. A courtought to adopt such a construction of a statute as will, without doing violenceto the fair meaning of the words, harmonize it with the Constitution. GrenadaCo. Supervisors v. Brogden, 112 U. S. 261.
[3] Osburn v. Stanley, 5 W. Va. 85; Kellogg v.State Treasurer, 44 Vt. 356.
have set no authority over the legislators with jurisdiction to inquireinto their conduct, and to judge what have been their purposes in the pretendeddischarge of the legislative trust. This is a jurisdiction which they havereserved to themselves exclusively, and they have appointed frequent electionsas the occasions and the means for bringing these agents to account. A furtherreason is, that to make legislation depend upon motives would render allstatute law uncertain, and the rule which should allow it could not logicallystop short of permitting a similar inquiry into the motives of those who passedjudgment. Therefore the courts do not permit a question of improper legislativemotives to be raised, but they will in every instance assume that the motiveswere public and befitting the station.[1] They will also assume thatthe legislature had before it any evidence necessary to enable it to take theaction it did take.[2]
11. When a legislative enactment proves to be invalid, it is for alllegal purposes as if it had never been.[3] It can support nocontract, it can create no right, it can give protection to no one who hasacted under it, it can make no one an offender who has refused obedience to it.And
[1] Ex parte McCardle, 7 Wall. 506, 514; Doyle v.Insurance Co., 94 U. S. 535. Courts cannot inquire into legislative motivesexcept as they may be disclosed on the face of the acts, or be inferrible fromtheir operation considered with reference to the condition of the country andexisting legislation. Soon King v. Crowley, 113 U. S. 703. This ruleapplies to legislation of municipalities. Brown v. Cape Girardeau, 90Mo. 377.
[2] Johnson v. Railroad Co., 23 Ill. 202; Lusherv. Scites, 4 W. Va. 11. Expert evidence is inadmissible to show that inproviding for the infliction of the death penalty by electricity thelegislature imposed a cruel and unconstitutional punishment. People v.Durston, 119 N. Y. 569.
[3] Sumner v. Beeler, 50 Ind. 341. "Anunconstitutional law is not a law; it confers no rights; it imposes no duties;it affords no protection; it creates no office; it is, in legal contemplation,as inoperative as though it had never been passed." Field, J., in Nortonv. Shelby County, 118 U. S. 425, 442.
this is true of any particular provision of a statute which provesinvalid, while the remainder is sustained.[1] It is true that onewho assumes to disobey a statute as invalid does so at the risk of beingpunished for his disobedience if the law is sustained; but this is a risk whichevery one takes when he acts in any matter in respect to which the law is indoubt.
Suits against Officers. The exemption of legislators frominquiry into motives would of itself protect them against suits by privateindividuals who may suffer damage from their action; but they are also exempton the further ground that the duties they perform are of a public natureexclusively, and they are therefore under responsibility only to the public.There is a like exemption in favor of inferior bodies who exercise aquasi legislative authority,[2] such as boards ofsupervisors, county commissioners, city councils, and the like, though it maybe otherwise in respect to particular duties with which such bodies aresometimes charged for the benefit of individuals, and which each member isexpressly required to recognize and perform. The case of inferior officersexercising severally a discretionary duty to individuals is different. They areprotected while they act in good faith, but they are generally held responsibleif they take advantage of their position to injure another maliciously andwithout cause.[3] This is the rule which is applied to electionofficers who are found guilty of having wrongfully refused to register votersor to receive their ballots.[4] Mere ministerial
[1] Cooley, Const. Lim., 6th ed, 222.
[2] Baker v. State, 27 Ind. 485; Freeport v.Marks, 59 Penn. St. 253.
[3] Bennett v. Fulmer, 49 Penn. St. 155; Billingsv. Lafferty, 31 Ill. 318; Shoemaker v. Nesbit, 2 Rawle, 201;Parmelee v. Baldwin, 1 Conn. 313.
[4] Lincoln v. Hapgood, 11 Mass. 350; Jeffriesv. Ankeny, 11 Ohio, 322; Bevard v. Hoffman, 18 Md. 479; Goetcheusv. Mathewson, 61 N. Y. 420; Weckerly v. Geyer, 11 S. & R. 35;Miller v. Rucker, 1 Bush (Ky.), 135; Carter v. Harrison, 5Blackf. (Ind.) 138; Gordon v. Farrar, 2 Doug. (Mich.) 411; Dwightv. Rice, 5 La. An. 580; State v.
officers must always at their peril keep within the limits of the law,for their duties are not discretionary, and the law is supposed to make plainfor them what their duty is. Nor will the immunity of the legislativedepartment cover the acts of its ministerial agents with a like shield ofprotection. And this is an important check which the judiciary holds upon thelaw-making departments; if the members are not directly responsible forexceeding their constitutional authority, the ministerial agents and officersthrough whom the legislature acts will always be so.[1]
Check on the Treaty-making Power. The full treaty-makingpower is in the President and Senate; but the House of Representatives has arestraining power upon it in that it may in its discretion at any time refuseto give assent to legislation necessary to give a treaty effect. Many treatiesneed no such legislation; but when moneys are to be paid by the United States,they can be appropriated by Congress alone; and in some other cases laws areneedful. An unconstitutional or manifestly unwise treaty the House ofRepresentatives may possibly refuse to aid; and this, when legislation isneedful, would be equivalent to a refusal of the government, through one of itsbranches, to carry the treaty into effect. This would be an extreme measure,but it is conceivable that a case might arise in which a resort to it would bejustified.[2]
Judiciary and Executive. From the foregoing it will appearthat the judiciary has no control whatever over legislation, and no powerwhatever to question its purpose or animus, provided always that legislation iskept within the limits of the constitutional grant. The remark
Porter, 4 Harr. (Del) 556; Wheeler v. Patterson, 1 N. H. 88;Fausler v. Parsons, 6 W. Va. 486; Peavey v. Robbins, 3 Jones (N.C.), 339; Rail v. Potts, 8 Humph. (Tenn.) 225; Sanders v.Getchell, 76 Me. 158; Long v. Long, 57 Iowa, 497. See Murphy v.Ramsey, 114 U. S. 15. The Massachusetts, Ohio, and Iowa cases hold the officersresponsible for refusing a legal ballot, even when they err in good faith.
[1] Stockdale v. Hansard, 9 Ad. & El.1; Milliganv. Hovey, 3 Biss. 13
[2] See ante, page 118.
is equally true when applied to executive power. Within the sphere ofhis authority under the Constitution the Executive is independent, and judicialprocess cannot reach him.[1] But when he exceeds his authority, orusurps that which belongs to one of the other departments, his orders,commands, or warrants protect no one, and his agents become personallyresponsible for their acts. The check of the courts, therefore, consists intheir ability to keep the Executive within the sphere of his authority byrefusing to give the sanction of law to whatever he may do beyond it, and byholding the agents and instruments of his unlawful action to strictaccountability.[2]
The Executive can have no corresponding authority to pass upon thevalidity of either legislative or judicial action. His judgment of proposedlegislation may be expressed in his veto, but if that is overruled theExecutive is as much bound as is any private citizen. He is also equallyconcluded by the judgment of a competent court, and it may become his duty asExecutive to assist in enforcing a judgment he believes erroneous, shouldenforcement by the ordinary process of the court and by its own officers becomeimpossible. Nevertheless it is conceivable that the Executive may refuse toobey either a statute or the judgment of a court. Indeed, such cases haveoccurred in the history of the Federal government, notably, in the case of theGeorgia Indians,[3] and in cases arising under
[1] Marbury v. Madison, 1 Cranch, 137; Hawkinsv. Governor, 1 Ark. 570; State v. Governor, 25 N. J. 331; Peoplev. Governor, 29 Mich. 320; Mauran v. Smith, 8 R. I. 192; Statev. Warmouth, 22 La. An. 1; Rice v. Austin, 19 Minn. 103; Smithv. Myers, 109 Ind. 1; Bates v. Taylor, 87 Tenn. 319; and seeante, p. 121.
[2] Milligan v. Hovey, 3 Biss. 13; Kendall v.United States, 12 Pet. 524; Little v. Barreme, 2 Cranch, 170. For theresponsibility of high executive officers, see Spalding v. Vilas, 161 U.S. 483. And see ante, p. 140. The courts will not enjoin a municipalcouncil from passing an unconstitutional ordinance, but will enjoin itsenforcement. Hew Orleans Water Works Co. v. New Orleans, 164 U. S.471.
[3] Worcester v. Georgia, 6 Pet 515; Webster's Works,i. 268. The papers and documents are collected in Niles's Register, vols.xxxix.-xliv.
the proclamation of President Lincoln purporting to suspend thehabeas corpus.[1] It can be said of such cases only this,that the responsibility of the President for a refusal to regard the judicialmandate is on the one hand to the people and on the other to the process ofimpeachment.
Impeachments. The two very effective restraints which thelegislature may interpose to the abuse of executive and judicial authority are,first, that which consists in its control over their jurisdiction, and, second,the proceeding by impeachment. Much of executive authority comes, not from theConstitution, but from statute, and what is thus given may at any time be takenaway. The same is true of the courts. Some of them are purely statutory courts,and may be modified or abolished; all of them derive the most of theirjurisdiction from statutes, and whenever this is abused it can be restricted ortaken away.[2] But it may also be modified or taken away on groundsof expediency or policy merely. Impeachment is for the purpose of punishingmisconduct. By the Constitution of the United States the House ofRepresentatives has the sole power of impeachment,[3] and the Senatethe sole power to try its presentments. When the President is tried, the ChiefJustice shall preside, and no person shall be convicted without the concurrenceof two thirds of the members.[4] Judgment in case of impeachmentshall not extend further than to removal from office and disqualification tohold and enjoy any office of honor, trust, or profit under the United States;but the party convicted shall nevertheless be liable, and subject toindictment, trial, judgment, and punishment according to law, provided theimpeachable offence is also an indictable of-
[1] Merryman's Case, Taney's Dec. 246; S. C. 9 Am. Law. Reg.524; 14 Law. Rep. N. S. 78.
[2] Ex parte McArdle, 7 Wall. 506. [3] Const.,Art. I. § 2, cl. 5.
[4] Const., Art. I. § 3, cl. 6.
fence.[1] The President's power to grant reprieves andpardons does not extend to impeachments.[2]
The offences for which the President or any other officer may beimpeached are any such as in the opinion of the House are deserving ofpunishment under that process. They are not necessarily offences against thegeneral laws. In the history of England, where the like proceeding obtains, theoffences have often been political, and in some cases for gross betrayal ofpublic interests punishment has very justly been inflicted on cabinet officers.It is often found that offences of a very serious nature by high officers arenot offences against the criminal code, but consist in abuses or betrayals oftrust, or inexcusable neglects of duty, which are dangerous and criminalbecause of the immense interests involved and the greatness of the trust whichhas not been kept. Such cases must be left to be dealt with on their own facts,and judged according to their apparent deserts.[3]
The Veto Power. The view most commonly taken of the vetopower is perhaps that of Mr. Webster, that it is "an extraordinary power, to beexercised only in peculiar and marked cases"; that "it was vested in thePresident, doubtless as a guard against hasty and inconsiderate legislation,and against any act, inadvertently passed, which might seem to encroach on thejust authority of other branches of the government,"[4] or, it maybe added, on the rights of the States or of individuals. The first sixPresidents made use of it very sparingly, some of them not at all; butfor this an important reason is found in the fact that the legislature and thePresident were generally in accord on important measures. It was used morefreely by President Jackson, and still more freely by Presidents
[1] Const., Art. I. § 3, cl. 7. [2] Const.,Art. II. § 2, cl. 1.
[3] The law and the precedents on the subject were largelyexamined on the impeachment trial of President Johnson, and on the previoustrials of Judges Chase and Peck. See Foster, Com. on the Const., ch. xiii.
[4] Webster's Works, i. 267.
Tyler, Johnson, and Hayes.[1] This might well occur, evenwith the same views of the proper functions of the veto, since the Presidentslast named were confronted with Congresses of opposing political views, and hadoccasion to consider and pass upon a large amount of legislation that was notin accord with their own opinions of what was right in policy or sound inconstitutional law. The reasons assigned for the vetoes have seldom beenunimportant, and have often been the unconstitutionality of the legislation towhich assent was withheld. In some cases there has been a species of silentveto, through a neglect of the President to return a bill transmitted to himwithin the last ten days of the session, whereby it would fail to become a law.It was not contemplated by the Constitution that the President should purposelydefeat legislation in that mode; and no doubt it has sometimes occurred throughthe impossibility of giving careful examination to the provisions of billsreferred to him, during the last days of the session, in the limited timeallowed.
To what extent the veto shall be resorted to must always be matter ofdiscretion with the President. The writer in the Federalist evidently imaginedthat its chief use would be the protection of the executive department againstattempted encroachments. He speaks of "the propensity of the legislativedepartment to intrude upon the rights and to absorb the powers of the otherdepartments," "the insufficiency of a mere parchment delineation of theboundaries of each," and "the necessity of furnishing each with constitutionalarms for its own defence," and says: "From these clear and indubitable
[1] President Cleveland vetoed many bills. "Until theaccession of President Cleveland in 1885 the total number vetoed was only 132(including the so called pocket vetoes) in ninety-six years. Mr. Clevelandvetoed 301." See Bryce, Am. Com., vol. i, p. 59, 3d Am. ed. This number, 301,was during Mr. Cleveland's first term, and they were mostly private pensionbills Mr. Bryce says, "The only President who acted recklessly was AndrewJohnson." The tendency seems to be toward a free use of this power.
principles results the propriety of a negative, either absolute orqualified, in the executive upon the acts of the legislative branches. Withoutthe one or the other, the former would be absolutely unable to defend himselfa*gainst the depredations of the latter. He might gradually be stripped of hisauthorities by successive resolutions, or annihilated by a single vote. And inthe one mode or the other the legislative and executive powers might speedilycome to be blended in the same hands. If even no propensity had ever discovereditself in the legislative body to invade the rights of the executive, the rulesof just reasoning and theoretic propriety would of themselves teach us that theone ought not to be left at the mercy of the other, but ought to possess aconstitutional and effectual power of self-defence."
It is added, however, that "the power in question has a further use. Itnot only serves as a shield to the executive, but it furnishes an additionalsecurity against the enaction of improper laws. It establishes a salutary checkupon the legislative body, calculated to guard the community against theeffects of faction, precipitancy, or of any impulse unfriendly to the publicgood, which may happen to influence a majority of that body."[l]
Occasions for frequent differences between the legislature and theexecutive, on questions of constitutional right or power, seem not to have beenanticipated; but it is in these that the use of the veto Las been mostimportant. No one has ever questioned the right and duty of the President tomake use of his negative when it was believed the proposed law was subject toobjection on constitutional grounds. It has been claimed, however, that whenthe point of constitutional law which the case presents is one which haspreviously received judicial examination and decision, he may not rightfullydisregard this decision and base his negative on his own opinion opposed tothat of the judiciary.
[1] No. 73, by Hamilton. And see Madison's Works, iv. 369,letter to Edward Coles.
That the President has a discretionary power to veto a bill, for anyreason that appears to him sufficient, is undoubted. The Constitution gives thepower, and makes no exceptions. That it is proper he should pay great deferenceto the judicial authority on such questions as have already beenauthoritatively determined, may also be conceded. But that he is guilty of anyviolation of duty, or is disrespectful to the judiciary, or disregards any justprinciple of government, when he acts upon his own judg[]ment ofconstitutional right, power, or obligation involved in any proposed law, is notadmitted. When he does not approve a bill, he is to withhold his approval; andwhen he may do so on grounds of mere expediency, it would be remarkable if hewere not at liberty to do so when his objection goes to the very right of thelegislature to pass the bill at all.
The act making treasury notes a legal tender was authoritatively passedupon, and finally sustained, by the Federal Supreme Court. The decision settledthe law as to that act, and was binding upon the President as much as upon anyprivate citizen. But should any great emergency hereafter seem to present toCongress a sufficient reason for passing a similar act, what possible reasoncould exist for the President withholding his approval which would be moreforcible than that in his opinion the Constitution did not warrant it ? He hasdeferred to the judgment of the court as to what the law was; must he now deferto it in deciding what the law shall be? The court itself, in a new case, mightoverrule its own decision, and it would be the plain duty of the court to do soif the justices should reach the conclusion that so great an error had beencommitted as the sanction of a violation of the charter of government. But thePresident overrules no decision in such a case: he simply acts upon his ownjudgment as a legislator. And it can never be disrespectful to the judiciarythat any branch of the legislature differs with it in opinion when actingwithin the sphere of its powers.
CHAPTER VIII. THE GOVERNMENT OF THE TERRITORIES.
The Constitution. By Article IV. of the Constitution it isdeclared that Congress shall have power "to make all needful rules andregulations respecting the territory or other property belonging to the UnitedStates."[1]
The Purposes. Rules and regulations for the territory ofthe United States may be of two kinds: First, those having regard to itas property merely, and intended to guard and improve it as such, and perhapsto prepare it for sale and sell it;[2] and, second, thosewhich concern the government of the people who may reside within the territorybefore it is formed into States. This provision of the Constitution differsfrom most others contained in that instrument in this: that by it the Statesconcede nothing, at least so far as the territory outside their own limits isconcerned, since over this they had no power whatever to make rules themselves.Indeed, as to such territory the provision would be needless, for the UnitedStates as a sovereignty would have inherent power to govern at discretion suchterritory as it possessed beyond state limits The States could not restrict theright, and no restrictions could come from any other authority.
Control by Congress. The peculiar wording of the provisionhas led some persons to suppose that it was intended Congress should exercisein respect to the territory the rights only of a proprietor of property,and
[1] Const., Art. IV. § 3, cl. 2.
[2] United States v. Gratiot. 14 Pet. 526.
that the people of the Territories were to be left at liberty toinstitute governments for themselves. It is no doubt most consistent with thegeneral theory of republican institutions that the people everywhere should beallowed self-government; but it has never been deemed a matter of right that alocal community should be suffered to lay the foundation of institutions, anderect a structure of government thereon, without the guidance and restraint ofa superior authority. Even in the older States, where society is mosthom*ogeneous and has fewest of the elements of disquiet and disorder, the Statereserves to itself the right to shape municipal institutions; and towns andcities are only formed under its direction, and according to the rules andwithin the limits the State prescribes. With still less reason could thesettlers in new territories be suffered to exercise sovereign powers. Thepractice of the government, originating before the adoption of theConstitution, has been for Congress to establish governments for theTerritories; and whether the jurisdiction over the district has been acquiredby grant from the States, or by treaty with a foreign power, Congress hasunquestionably full power to govern it, and the people, except as Congressshall provide therefor, are not of right entitled to participate in politicalauthority, until the territory becomes a State.[1] Meantime they arein a condition of temporary pupilage and dependence; and while Congress will beexpected to recognize the principle of self-government to such extent as mayseem wise, its discretion alone can constitute the measure by which theparticipation of the people can be determined. If territory is
[1] American Ins. Co. v. Canter, 1 Pet. 511, 542;Territory v. Lee, 2 Montana, 124; Reynolds v. People, 1 Colorado,179; Carpenter v. Rogers, 1 Montana, 90; National Bank v.Yankton, 101 U.S. 129; Mormon Church v. United States, 136 U. S. 1. Inthis last case, in discussing the plenary power of Congress over theTerritories, it is suggested that it would doubtless be impliedly subject tothose fundamental limitations in favor of personal rights which are formulatedin the Constitution and Amendments. See also Am. Pub. Co. v. Fisher, 160U. S. 464.
acquired from a foreign country with a de facto government infull operation, this government will continue with the presumed consent of thepeople, until Congress shall provide for them a territorial government. "Thegreat law of necessity justifies this conclusion. The consent of the people isirresistibly inferred from the fact, that no civilized community could possiblydesire to abrogate an existing government, when the alternative presented wouldbe to place themselves in a state of anarchy, beyond the protection of alllaws, and reduce them to the unhappy necessity of submitting to the dominion ofthe strongest." The limitation to the power of this de facto governmentis, that it shall "exercise no power inconsistent with the provisions of theConstitution of the United States, which is the supreme law of theland."[1]
Forms of Territorial Governments. Two general forms ofterritorial government have from time to time been established by Congress fordifferent Territories. The first of these is a government with an executive andjudges appointed by the President with the advice and consent of the Senate,who together constitute the legislature for the Territory. The second is agovernment in which, while the executive and judiciary will be of nationalappointment, the legislature is composed of representatives chosen by thepeople of the Territory. Some of the Territories have had both forms, and alsobetween the two a third, which was a modification of both. By the Ordinance of1787, for the government of the Northwest Territory, the governor and judges,or a majority of them, were empowered to adopt for the Territory such laws ofthe original States, criminal and civil, as might be necessary and best suitedto the circ*mstances of the district, and report them to Congress from time totime, which laws were to be in force until the organization of the GeneralAssembly therein, unless disapproved by Congress; but afterwards the legis-
[1] Cross v. Harrison, 16 How. 164, 184.
lature was to have authority to alter them as it should think fit. Andthe people were to have the right to elect representatives to a GeneralAssembly so soon as there should be five thousand free male inhabitants of fullage in the Territory. The legislative power of the governor and judges, it isseen, was limited to a selection of laws from the States; but when aterritorial legislature has been provided for, the authority conferred upon ithas extended to all rightful subjects of legislation,[1] and itmight therefore grant charters of incorporation,[2] endowinstitutions of learning,[3] provide for the exercise of the rightof eminent domain,[4] allow illegitimate children toinherit,[5] grant a legislative divorce,[6] and so on.Congress may at any time control the legislation of the Territories, orlegislate independently for them,[7] but the territorial laws not inconflict with the Constitution or any act of Congress would stand, unlessdisapproved.[8] The absence, however, of action by Congress is notto be construed as a recognition of the power of the territorial legislature topass acts in conflict with the congressional act under which the territory wasorganized.[9]
The Public Domain. Of that portion of the Territo-
[1] Miners' Bank v. Iowa, 12 How. 1; VincennesUniversity v. Indiana, 14 How. 268; Wisconsin v. Doty, 1 Pinney(Wis.), 396; State v. Young, 3 Kans. 445.
[2] Miners' Bank v. Iowa, 12 How. 1.
[3] Vincennes University v. Indiana, 14 How. 268,273.
[4] Swan v. Williams, 2 Mich. 427; Carson River,&c. Co. v. Barrett, 2 Nev. 249; Lewis Co. v. Haves, 1 Wash.Ter. 128.
[5] Cope v. Cope, 137 U. S. 682.
[6] Maynard v. Hill, 125 U. S. 190. Or empower aprobate court to grant divorces. Whitmore v. Harden, 3 Utah, 121.
[7] Reynolds v. United States, 98 U. S. 145. As bydisfranchising polygamists. Murphy v. Ramsey, 114 U. S. 15.
[8] Clinton v. Englebrecht, 13 Wall. 434. This casereviews and explains the territorial legislation. And see Ferris v.Higley, 20 Wall. 375; Moore v. Koubly, 1 Idaho, 55; Smith v.Odell, 1 Pinney (Wis ), 449; Morton v. Sharkey, McCahon (Kans.),113.
[9] Clayton v. Utah, 132 U. S. 632.
ries which belongs to the public domain, and of which, therefore, theUnited States has proprietary title, Congress provides for the disposition andsale, under such regulations as are deemed important. In respect to this, thegovernment occupies the two positions of proprietor and of sovereign of thecountry, and may deal with it at discretion, and pass title to it in any mannerit may choose. The proviso that "nothing in this Constitution shall be soconstrued as to prejudice any claims of the United States, or of any particularState," had in view claims, some of which were recognized and some disputed,but all of which were subsequently adjusted amicably.
The "other property belonging to the United States" of which Congress isempowered to dispose, might be any which was then, or in the course of timemight become, their property, whether acquired as a government, or as anindividual or corporation might acquire it.
Judiciary of the Territories. While the territorialcondition remains, the courts of the Territory exercise the customaryjurisdiction of both state and federal courts under congressional andterritorial legislation.[1] Their powers cease as soon as theTerritory is admitted to the Union, and judicial acts afterwards performed arevoid for want of jurisdiction.[2] Congress will provide, byappropriate legislation, for the transfer of cases begun in the territorialcourts to the proper courts for further proceedings.[3]
[1] American Ins. Co. v. Canter, 1 Pet. 511.
[2] Benner v. Porter, 9 How. 235; Forsyth v.United States, 9 How. 571; United States v. Simpson, 9 How. 578.
[3] Express Co. v. Kountze, 8 Wall. 342. The judges ofterritorial courts are not judges of "courts of the United States." The wholematter of the formation of those courts and the tenure of the judges thereof isleft with Congress. It may, therefore, empower the President at his discretionto suspend territorial judges before the end of their terms of office.McAllister v. United States, 141 U. S. 174.
CHAPTER IX.
THE ADMISSION OF NEW STATES.
Original States. The Constitution provided that theratification by the conventions of nine States should be sufficient for theestablishment of the Constitution between the States so ratifying thesame;[1] but it contemplated the accession of all the thirteenStates, if all should ratify, even though some might delay until after thegovernment should have been put into operation.
New States. The Constitution also provided that new Statesmay be admitted by Congress into the Union;[2] but whether theyshould be formed of territory at that time belonging to the States, or fromterritory that might thereafter be acquired, or taken in as existing Statespreviously independent, was not expressly determined by that instrument. By theOrdinance of 1787, however, which the Constitution left in force,[3]it had been agreed that States not exceeding five might be formed from theNorthwest Territory, and received into the Union; and it may be assumed asunquestionable that the constitutional provision contemplated that theterritory then under the dominion of the United States, but not within thelimits of any one of them, was in due time to be formed and organized intoStates and admitted into the Union, as has since in many cases been done.Indeed, it could never have been understood that any territory which bypurchase, cession, or conquest should at any time come under
[1] Const., Art. VII. [2] Const., Art. IV. §3. [3] Spooner v. McConnell, 1 McLean, 337.
the control of the United States, should permanently be held in aterritorial condition, and the new States, which have been formed of territoryacquired by treaty, must be supposed to have been received into the Union instrict compliance with the Constitution.[1] So must Texas, which asan independent State was annexed to the Union. It is true that nothing in theexpress terms of the Constitution indicates that it was contemplated, by thosewho framed and adopted it, that the bounds of the Union should be extended bythe acquisition of territory, either by purchase or annexation. Nevertheless,the power in any sovereignty to acquire territory is indisputable, and of rightpertains to the power to declare war and form treaties. It therefore belongs tothe United States, and is denied to the States, which are forbidden toenter into treaties.[2] And when territory is acquired, the right tosuffer States to be formed therefrom, and to receive them into the Union, mustfollow of course, not only because the Constitution confers the power to admitnew States without restriction, but also because it would be inconsistent withinstitutions founded on the fundamental idea of self-government that thefederal government should retain territory under its own imperial rule, anddeny the people the customary local institutions. The power to admit to theUnion existing States, as in the case of Texas, may be questioned with morereason;[3] but the dealings of one sovereignty with another mustalways be under subjection to the great law of necessity, and what therequirements of that law may be in any particular case only the sovereigntyitself can judge when the emer-
[1] Compare Scott v. Sandford, 19 How. 393, 447 .
[2] Const., Art. I. § 10.
[3] The debates which took place in Congress while thesubject of the annexation of Texas was under discussion, and thecontemporaneous political discussions elsewhere, give the opposing views onthis subject. Most of the discussions, however, involved policy rather thanconstitutional power. See ante, p. 117.
gency is upon it. If, therefore, an independent State is received intothe Union, it must be supposed to have been accepted on sufficient andconclusive reasons.
Preliminary Steps. The Constitution does not point outwhat steps shall be taken for the admission of a State to the Union, but, thepower having been conferred upon Congress without limitation, it is left to thediscretion of that body to determine the circ*mstances under which theadmission shall be allowed, and the steps that shall be taken to obtain it.Nevertheless, certain requisites are necessarily implied. There must be a Stateto admit; and a State must have a government and laws; and the government mustbe republican in form because States with such a government can alone bemembers of the Union. But how the State shall come into existence; who shall beits electors and form its government and establish its laws; how many of theelectors there shall be; what shall be the extent of territory incorporatedwithin the limits of their State; and whether any constitution the people mayhave formed shall be received as satisfactory or shall be required to beamended, these and many other questions must be determined under thediscretionary power conferred upon Congress.
States have been admitted, (1) where the people of a Territory ofsuitable size have, either by spontaneous action or in accordance with someterritorial statute or executive proclamation, formed a constitution andelected officers to administer it, and presented the constitution to Congressand applied for admission under it; (2) where Congress has first passed anenabling act, authorizing the people to form a constitution, prescribing rulesof suffrage and other conditions, and providing for the admission of the Statewhen the constitution shall be adopted and the conditions complied with; (3)when a constitution, formed with or without previous congressional authority,has been presented to Congress, and that body has accepted it conditionally,requiring the consent of the people,
evidenced in some form indicated, to some condition precedent to theadmission, such as the consent to yield some portion of the territory claimed,or some rule of suffrage established by the state constitution, &c. Besidesthese there have been other peculiarities of admission, but this statement issufficient to show that the control of Congress is exercised according to thecirc*mstances. In one instance, admission was refused, though the populationwas ample, because of objection to local laws and usages.[1]
With full discretionary power over the admission of States, it must beexpected that the action of Congress will not always be governed by uniformsentiments and uniform rules, and it has at times confessedly been controlledby party or sectional considerations. The Constitution neither does nor canestablish effectual safeguards against the control of such influences.
Seceded States. Those States whose people undertook tosever them from the Union, under claim of a right to secede, were neverthelessnot released from their constitutional relations.[2] Until therebellion was overthrown their position was peculiar: they had disloyalgovernments exercising all the ordinary powers of sovereignty, with courtsadministering justice between man and man, and legislatures passing laws ofgeneral, but also of purely local concern. When resistance to the federalgovernment ceased, regard to the best interests of all concerned required thatsuch governmental acts as had no connection with the disloyal resistance togovernment, and upon the basis of which the people had acted and had acquiredrights, should be suffered to remain undisturbed.[3] But all
[1] The case of Utah. The facts concerning the admission ofStates to the Union are all collected, and the principles discussed, in Jamesonon Constitutional Conventions.
[2] White v. Cannon, 6 Wall. 443; Texas v.White, 7 Wall. 700; Shortridge v. Macon, Chase's Dec. 136; Keithv. Clark, 97 U. S. 454.
[3] Keppel v. Railroad Co., Chase's Dec 167, Cookv. Oliver, 1
acts done in furtherance of the rebellion were absolutely void,and private rights could not be built up under, or in reliance uponthem.[1] To restore the States to their former place in the Union,no new admission was required, but they were restored to their fullconstitutional powers as rightful members of the Union, when the fact wasrecognized by the political departments of the government, and their senatorsand representatives were admitted to seats in Congress.[2]
States from other States. The Constitution furtherprovides that "no new State shall be formed or erected within the jurisdictionof any other State, nor any State be formed by the junction of two or moreStates, or parts of States, without the consent of the legislatures of theStates concerned, as well as of the Congress."[3] The politicaldepartments of the government practically decided in the ease of Virginia that,when a State goes into rebellion, any part of it, however small, which remainsloyal, may with the consent of Congress maintain a loyal state government forthe whole State, and that this government may give consent to the erection of anew State within the limits of the old, and the legislatures of the old and newStates may agree upon conditions. It is competent in such a case to make theannexing of a certain part of the old State to the new depend upon a favorablevote of the electors within such territory; and when that is done, and thegovernor is given power to certify the result, his certificate that the votewas favorable, especially if accepted and acted upon by the new State by theextension of
Woods, 437; Hatch v. Burroughs, 1 Woods, 439; Thoringtonv. Smith, 8 Wall. 1; Horn v. Lockhart, 17 Wall. 570, Sprottv. United States, 20 Wall. 459; Ford v. Surget, 97 U. S. 594
[1] Hanauer v. Doane, 12 Wall. 342; Hanauer v.Woodruff, 15 Wall. 439; Sprott v. United States, 20 Wall. 459, Fordv. Surget, 97 U. S. 594.
[2] Texas v. White, 7 Wall. 700; Keith v.Clark, 97 U. S. 454. [3] Const., Art. IV § 3, cl. 1
jurisdiction over the territory, is conclusive.[1] It is notnecessary that the consent of Congress to the formation of the new State shouldbe given in express terms, but it may be implied from its legislationrecognizing such State.[2]
Territorial Laws. A State coming into the Union bringswith it the pre-existing law, except so far as expressly or by necessaryimplication it is changed by the Constitution, or by the passage from aterritorial to a state condition. All those laws which relate to theterritorial condition and circ*mstances exclusively become of necessityinoperative.
Conditions to Admission. In several instances Congress hasprescribed conditions to the admission of States to the Union. When Missouriapplied for admission, the constitution which was presented contained a clauserequiring the legislature to pass such laws as might be found necessary "toprevent free negroes and mulattoes from coming to and settling in this State,under any pretext whatsoever." The State was received into the Union oncondition that a solemn pledge should be given by its legislature that theconstitution should never be construed to authorize the passage of any act, andthat no act should be passed, by which any of the citizens of other Statesshould be excluded from the enjoyment of any of the privileges and immunitiesto which they are entitled under the Constitution of the United States.Presumably this would cover the privilege of colored citizens of other Statesto emigrate into Missouri, if they should see fit.[3]
The State of Michigan was admitted to the Union upon the expresscondition that she should surrender to the State
[1] Virginia v. West Virginia, 11 Wall. 39; KanawhaCoal Co. v. Kanawha, &c. Coal Co., 7 Blatch 391.
[2] Virginia v. West Virginia, 11 Wall. 39. There is aprovision in the joint resolution for the annexation of Texas for the formationof four other States from its territory, with the consent of the State, but noaction to that end was ever taken.
[3] Benton's Thirty Years' View, ch. 2.
of Ohio certain territory which had been the subject of dispute betweenthem, and her assent thereto was required to be given by a convention ofdelegates chosen by the people for the sole purpose of giving suchassent.[1]
The State of Arkansas was admitted to representation in Congress, June22, 1868, on the fundamental condition "that the constitution of Arkansas shallnever be so amended or changed as to deprive any citizen or class of citizensof the United States of the right to vote, who are entitled to vote by theconstitution [then presented by the State], except as a punishment for suchcrimes as are now felonies at common law, whereof they shall have been dulyconvicted, under laws equally applicable to all the inhabitants of said State."The purpose was to protect colored citizens in the enjoyment of the electivefranchise. The States of North Carolina, South Carolina, Louisiana, Alabama,and Florida were admitted to representation, the same month, on a similarcondition. On the State of Georgia the same condition was imposed; also thefurther conditions, that the fourteenth amendment to the federal Constitutionshould be ratified, that certain provisions in her own constitution, notimportant to be here repeated, should be "null and void," and that the GeneralAssembly of the State should by solemn public act declare the assent of theState to the condition. The State of Virginia was admitted to representation inCongress, January 28, 1870, on the same condition with the others mentioned, inrespect to suffrage, and on the further conditions, "that it shall never belawful for the said State to deprive any citizen of the United States, onaccount of his race, color, or previous condition of servitude, of the right tohold office under the constitution and laws of said State, or upon any suchground to require of him any other qualification for office than such as arerequired of all other citizens;" and " that the constitution
[1] Campbell's Hist of Mich., ch. 14.
of Virginia shall never be so amended or changed as to deprive anycitizen or class of citizens of the United States of the school rights andprivileges secured by the constitution of said State." The States ofMississippi[1] and Texas were admitted to representation in thefollowing month, on the like conditions to those imposed on Virginia.
The State of Nebraska was admitted to the Union in 1867, with a provisoin the act of admission that it should not take effect "except upon thefundamental condition that within the State of Nebraska there shall be nodenial of the elective franchise, or of any other right, to any person byreason of race or color, except Indians not taxed, and upon the furtherfundamental condition that the legislature of said State, by a solemn publicact, shall declare the assent of said State to the said fundamental condition,and shall transmit to the President of the United States an authentic copy ofsaid act. Upon receipt whereof the President by proclamation shall forthwithannounce the fact; whereupon said fundamental condition shall be held as a partof the organic law of the State; and thereupon, and without any furtherproceeding on the part of Congress, the admission of said State into the Unionshall be considered as complete." The proclamation of the President announcingthe passage of such an act, and the receipt of an authentic copy thereof, wasissued on March 1, 1867.[2]
[1] It is worthy of note that the act admitting Mississippito representation (1870) established as a "fundamental condition" that herconstitution should never he so amended as to deprive any citizen of the rightto vote who had such right under the constitution then recognized by Congress,unless such deprivation be because of crime. Yet in 1890 a new constitution wasadopted establishing a slight educational qualification, the practical resultof which has been to exclude a very large proportion of the citizens from thesuffrage. See also the constitution of South Carolina (1895), and the case ofWilliams v. Mississippi, 170 U. S. 213.
[2] See Butler v. People, 2 Nebraska, 198.
Other conditions have been imposed; and a common requirement on theadmission of a State is, that it shall waive all right to impose taxes on thelands of the United States. Some of these conditions are beyond questionirrevocable by the States. Such, for example, are those last mentioned, whichare irrevocable because they constitute articles of compact between the Stateand the nation, which would render the taxation void. Such also would be acondition respecting boundary, as in the case of Michigan. The condition in thecase of Missouri merely required the State to observe one of the stipulationsin the Federal Constitution, which was as much obligatory upon the Statewithout the condition as with it. Whether the legislature can give bindingeffect to a condition which changes the constitution established by the peopleis at least doubtful. But when a State comes into the Union, it is received onan equal footing with the original States, and with all their rights andprivileges.[1] It must therefore have the same power to amend itsconstitution which is possessed by the other States, and a condition whichshould undertake to limit its power in this regard must, in a legal sense, bewholly inoperative. It is to be observed of those which have been imposed, andwhich would limit the power of amendment, that they have since been renderedunimportant by amendments to the Federal Constitution.
[1] Pollard's Lessee v. Hagan, 3 How. 212; Straderv. Graham, 10 How. 82; Weber v. Harbor Commissioners, 18 Wall.57; Willamette Bridge Co. v. Hatch, 125 U. S. 1.
CHAPTER X.
CONSTITUTIONAL RULES OF STATE COMITY.
Conflict of Laws. It often happens that a right assertedor privilege claimed in one State will depend for its validity upon somethingdone by the parties concerned, or by one of them, in some other State, wherebythe right or privilege became initiate, or perhaps perfected. In such case thelaws of both States are to be considered in order to determine how theyrespectively affect the claims made. In these cases the questions which ariseare questions of interstate comity, and, except as the provisions of thefederal constitution affect and modify them, they are to be governed by therules of private international law, as they would be if the two States had beento each other foreign nations.
The rules of private international law are taken notice of and enforcedby the courts just as are the general principles of the common law; and thefederal courts, like those of the States, when administering justice within aState between suitors entitled to bring suits therein, will recognize and begoverned by them. But, like other rules of law, they are subject to be variedand controlled by state legislation, and there may be and often is a generalstate policy upon some particular subject before which the rules of privateinternational law which are opposed to it must give way.
A familiar instance of these rules is that which concerns the title andtransmission of personal property. The doctrine universally accepted is thatchattels have no situs,
but in contemplation of law adhere to the person of the owner, whereverhe may be.[1] If actually in one State while the owner has hisdomicile in another, the latter may dispose of them according to the law of thedomicile, and his contracts or conveyances, which are sufficient under the lawthere, will be held sufficient everywhere.[2] So his will, validaccording to the laws of his domicile, will be sufficient to dispose of them,and, if he dies intestate, they will be distributed as they would be ifactually with him in fact, as they were in contemplation of law.[3]But while this case illustrates the general law, it also enables us toappreciate and understand some important exceptions. One of these is that nosovereignty is bound to recognize and give effect to a transfer of propertywhich at the time is within its jurisdiction, unless all just claims which itmay have, or which any of its citizens may have, in respect to such property,are first satisfied. Therefore, in a case of intestacy, if the State where theproperty is has unsatisfied claims upon it for taxes, or if any of its citizenshave demands against the estate, it may justly provide that all such claims anddemands shall be satisfied before the property will be handed over to anadministrator for distribution at the forum of the domicile.[4]Another is that a transfer actually made abroad, in which both partiescontemplate some use of the property in contravention of the laws of the Statewhere it has its situs,
[1] Harvey v. Richards, 1 Mason, 381; Oakey v.Bennett, 11 How. 33; Story, Confl. L., §§ 376-382.
[2] The State where the chattels are may, however, exercisesuch control over them as to invalidate transfers of them made withoutconformity to its laws; for example, its laws as to liens or the recording ofchattel mortgages. Green v. Van Buskirk, 7 Wall 139; Walworth v.Harris, 129 U. S. 355; Ames Iron Works v. Warren, 76 Ind. 512.
[3] Sill v. Worswick, 1 H. Black. 665; Bank of Augustav. Earle, 13 Pet. 519; Ennis v. Smith, 14 How. 400; Fullerv. Steiglitz, 27 Ohio St. 355; Cade v. Davis, 96 N. C. 139;Estate of Apple, 66 Cal. 432.
[4] Swearingen v. Morris, 14 Ohio St. 424; Grattanv. Appleton, 3 Story, 755; Hill v. Townsend, 24 Tex. 575.
and participate in a purpose to violate those laws, will not berecognized and supported in the last mentioned State.[1] In neitherof these cases can there be any ground of interstate comity that could requirethe one sovereignty to surrender its own claims or those of its citizens, infavor of claims abroad which could be no more substantial or equitable, or thatcould call upon it to waive its local laws in favor of those who might choose aforeign territory as the theatre of their operations, for the express purposeof evading and defeating them. Nor is a State bound to enforce a wager contractmade in another State and valid there, if regarded as void under its own viewof public policy.[2] But the general rule is, that, when made ingood faith, the validity and interpretation of contracts are to be governed bythe law of the State where they are made, unless they are to be performed inanother State, and the parties clearly intended them to be governed by the lawof that State, in which case they will be governed by the law of the State ofperformance.[3] And under these rules all States will furnishsuitable remedies for the enforcement of contracts within their own limits, asit may become necessary. The remedies in any case, however, will be such onlyas are provided by its own laws.[4]
[1] Waymell v. Reed, 5 T. R. 599; Armstrong v.Toler, 11 Wheat. 258; Webster v. Munger, 8 Gray (Mass.), 584; Smithv. Godfrey, 28 N. H. 379; Wilson v. Stratton, 47 Me. 120; Jonesv. Surprise, 64 N. H. 243; Borer, Inter-State Law, 2d ed., 82, 83, 273;Story, Confl. L., § 246 et seq. As to what action is not withinthis rule, see Feineman v. Sachs, 33 Kans. 621. In Chambers v.Church, 14 R. I. 398, the court refused to enforce a contract to be executed inanother State which violated the laws of that State.
[2] Flagg v. Baldwin, 38 N. J. Eq. 219.
[3] Bank of United States v. Donnally, 8 Pet. 361;Andrews v. Pond, 13 Pet. 65; De Wolf v. Johnson, 10 Wheat. 367;Liverpool Nav. Co. v. Phenix Ins. Co., 129 U. S. 397; Wooley v.Lyon, 117 Ill. 244; Shoe & L. Bank v. Wood, 142 Mass. 563; Story,Confl. L., § 242.
[4] Bank of United States v. Donnally, 8 Pet. 361;Wilcox v. Hunt, 13 Pet. 378; Scudder v. National Bank, 91 U. S.406, 413; Story, Confl. L., § 556.
The cases of marriage and divorce raise frequent questions growing outof differences in the law where a marriage or a divorce may take place, and thelaw where the parties may afterwards be found domiciled. The rule of law withrespect to marriages is, that, if they are valid where entered into, they arevalid everywhere;[l] but this is subject to exceptions in the caseof polygamous marriages, and marriages which would be incestuous according tothe laws of nature as commonly understood, by which we must perhaps understandonly marriages between brothers and sisters, and marriages in the direct linealline of consanguinity.[2] The importance of this relation is sogreat, and the mischiefs that would flow from its being held invalid where theparties have intended that it should exist, are so serious, that marriages aresustained even where parties, who are not allowed to marry by the laws of theState of their domicile, have gone abroad and been married, subsequentlyreturning to reside.[3] In respect to divorce a like rule prevails,that a divorce valid where granted is valid everywhere; but every State willprotect any of its own citizens against being defrauded by a divorce obtainedabroad by fraud, or granted without jurisdiction.[4]
Local and Transitory Actions. There are some actions inwhich the remedy was always held to be local, and which consequently must bebrought within the jurisdiction where the injury complained of was committed.From the necessity of the case, actions for the recovery of lands must belongto this class, since process to enforce
[1] Medway v. Needham, 16 Mass. 157; Ponsfordv. Johnson, 2 Blatch. 51; Whart. Confl. L., § 127.
[2] Sutton v. Warren, 10 Met. (Mass.) 451; Wightmanv. Wightman, 4 Johns. Ch. (N. Y.) 343.
[3] Sutton v. Warren, 10 Met. (Mass.) 451; Statev. Ross, 76 N. C. 242; Commonwealth v. Lane, 113 Mass. 458; VanVoorhis v. Brintnall, 86 N. Y. 18; Bishop, Mar. and Div., ch. 21.
[4] Rorer, Inter-State Law, 2d ed., 248-252. See Cooley,Const. Lim., 6th ed.. 494. and cases.
the right when it should be established could be served only where theland was situated. But all actions for injuries to real estate are in the samecategory, and, even when they may be instituted in the Federal courts, theymust be brought in the district within which the land lies.[1] Onthe other hand, all actions for merely personal injuries or for injuries topersonal estate, and all actions upon contract, may be brought whereverpersonal service may be obtained,[2] and it is immaterial to theremedy in what jurisdiction the cause of action arose, though the local lawmust be looked to in order to determine the validity and construction of thecontract, and the liability of the party sued in respect to that which iscomplained of. In cases of contract it is not always necessary that personalservice should be obtained, in order that a remedy may be had in a foreignstate; attachment and garnishment process are allowed to reach property anddebts even when personal service can not be obtained. But in cases of tortpersonal service is necessary, and process for attaching property and demandswill not commonly be allowed.
Crimes and offences against the laws of a State can be defined,prosecuted, and pardoned only by the sovereign authority of thatState.[3] "The courts of no country," said Chief Justice Marshall,"execute the penal laws of another."[4] Penal laws are thoseimposing punishment for an offence committed against the State.[5]In the earlier
[1] Livingston v. Jefferson, 1 Brock. 203; McKennav. Fiske, 1 How. 241; Rundle v. Del. & Rar. Canal, 1 Wall. C.C. 275; Worster v. Lake Co., 25 N. H. 525. If brought elsewhere, thecourt entertains them by comity only. Morris v. Miss. Pac. Ry. Co., 78Tex. 17.
[2] A court of general jurisdiction has jurisdiction of anaction brought between non-residents by consent, if the subject-matter, forexample, a contract, is within its cognizance. Cofrode v. Circuit Judge,79 Mich. 332.
[3] Huntingdon v. Attril, 146 U. S. 657, 669, andcases cited; Wisconsin v. Pelican Ins. Co., 127 U. S. 265.
[4] The Antelope, 10 Wheat. 66, 123.
[5] Huntington v. Attril, 146 U. S. 657, 667.
cases decided by the State courts, statutory actions for wrongs, andespecially actions given by statutes against one who by wrongful act, neglect,or default caused the death of another, were looked upon as penal. But thatposition is now generally abandoned, and the courts of one State, or theFederal court sitting in that State, will recognize and enforce such statutoryrights created by the law of another. "Wherever by either the common law or thestatute law of a State, a right of action has become fixed and a legalliability incurred, that liability may be enforced and the right of actionpursued in any court which has jurisdiction of such matters, and can obtainjurisdiction of the parties."[1]
Corporations. In strict law the corporations chartered byone sovereignty have no authority to exercise their franchises in another,except as the latter shall permit;[2] but by comity they aresuffered to do so, where it would not contravene any principle of local policy,or any general statute, but subject to such restrictions as the State may seefit to impose.[3] The power to impose restrictions, however, must besubordinate to the Constitution and laws
[1] Miller, J., in Dennick v. R. R. Co, 103 U. S. 11,18. See also Huntington v. Attril, 146 U. S. 657; Northern Pacific R. R.Co. v. Babco*ck, 154 U. S. 190; Texas & Pacific Ry. Co. v.Cox, 145 U. S. 593; Herrick v. Minneapolis, &c. Ry., 31 Minn. 11;Dicey on Confl. of Laws, 668. The tendency now is to hold that there need be nosimilar law in the State of the forum, if the law of the foreign stateis not immoral or contrary to the public policy of the State of theforum. Huntington v. Attril, 146 U. S. 657; Herrick v.Minneapolis, &c. Ry., 31 Minn. 11; Higgins v. Central New Eng.,&c R. R., 155 Mass. 176.
[2] Lafayette Ins. Co. v. French, 18 How. 404; Bank ofAugusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168;Ducat v. Chicago, 10 Wall. 410; Whart. Confl. L., § 48; Horn SilverMining Co. v. New York, 143 U. S. 305.
[3] Paul v. Virginia, 8 Wall. 168; Ducat v.Chicago, 10 Wall. 410; Re Comstock, 3 Sawyer, 218; Moses v. State, 65Miss. 56; 2 Kent, 284, 285. But a court will not, in general, take jurisdictionof the purely internal affairs of a foreign corporation doing business withinthe State, even at the suit of a resident stockholder. North State M Co.v. Field, 64 Md. 151.
of the United States. A State could not, for example, interpose arestriction that would in effect constitute a regulation of interstatecommerce,[1] or that would restrain the corporation from resortingto the Federal jurisdiction in cases within the laws of Congress.[2]But no corporation can of right hold real property in a State except bypermission of the State; and though the permission will be implied whereverthere appears no State statute or policy to the contrary,[3] yet, asagainst an express inhibition to give lands by will to any but natural persons,not even the United States can receive a valid devise.[4]
The Constitution. There are some cases which it was deemedwise, in framing the Constitution, not to leave to comity merely, because theyconcerned so intimately the relations of the people of the several States toeach other that any differences in legislation in respect to them, or anydivergency in judicial decision, might lead to infinite contentions andmischiefs. One of these concerned the use in the States respectively of thestatutes, records, and judicial proceedings of other States, whether as mattersof evidence or as muniments of title. The common law had rules under whichthese might be proved, but these rules were subject to legislative modificationat discretion, and it was not improbable that, if the States were left tothemselves to establish independent regulations, those made by them would notonly be wanting in uniformity, but they would tend to breed discord, instead ofpreserving fraternal feeling, among the States. It is easy to understand how aState, from temporary prejudices or adverse inter-
[1] Pensacola Tel. Co. v. West Un. Tel. Co., 96 U. S.1.
[2] Insurance Co. v. Morse, 20 Wall. 445; Barronv. Burnside, 121 U. S. 186; Southern Pacific Co. v. Denton, 146U. S. 202.
[3] Runyan v. Coster, 14 Pet. 122; Thompson v.Waters, 25 Mich. 214. If such corporation is forbidden to hold land, only theState can raise the question of the validity of title acquired in contraventionof its law. Barnes v. Suddard, 117 Ill. 237; Carlow v. Aultman,28 Neb 672.
[4] United States v. Fox, 94 U. S. 315.
ests, or even from more reprehensible reasons, might legislate toprevent the reception in evidence of the records, and especially the judicialproceedings, of other States. It is conceivable, for example, that, in a timeof great financial distress in a new State, legislation might be obtained toprotect people emigrating to and settling within the State even as against thejust judgments rendered against them in the States from which they came, andstill remaining unsatisfied. This would not only be unjust in itself anddisgraceful to the State, but it would almost certainly lead to retaliatorylegislation.
State Acts, Records, etc. Among the preventive measures ofthe Constitution is the provision that "Full faith and credit shall be given ineach State to the public acts, records, and judicial proceedings of every otherState. And the Congress may by general laws prescribe the manner in which suchacts, records, and proceedings shall be proved, and the effectthereof."[1]
By this provision a rule of comity becomes a rule of constitutionalobligation. It also becomes a uniform rule, and the common authority isempowered to pass laws whereby the courts may govern their action in receivingor rejecting the evidences presented to them of the public acts, records, andjudicial proceedings of other States. Nor is this of more importance to theStates as such than to those whose individual interests may be involved oraffected; and indeed the interests involved are usually private and individual,rather than public.
The full faith and credit to which the public acts, records, andproceedings are entitled in other States is the same faith and credit to whichthey are entitled in the State whose acts, records, and judicial proceedingsthey are.[2] When, therefore, suit is brought in one State upon
[1] Const., Art. IV. § 1.
[2] Armstrong v. Carson, 2 Dall. 302; Mills v.Duryea, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234; Fieldv. Gibbs, Pet. C. C. 155; Bryant v. Hunters, 3 Wash. C. C. 48;Nations v. Johnson, 24 How. 195, 203.
a judgment rendered by a court of another State, and it appears that bythe law of the last mentioned State it is conclusive upon the defendant, itmust be held equally conclusive in the court in which suit upon it isbrought.[1] Whatever pleas would be good to it in the State where itwas pronounced, and none others, might be pleaded to it in any other courtwithin the United States.[2] But the judgment can have no greater orother force abroad than at home, and therefore it is always competent to showthat it is invalid for want of jurisdiction in the court renderingit.[3] To preclude inquiry into it in another State, the judgmentmust not only be rendered by a court having jurisdiction of the subject-matterand the parties, but, if the defendant does not appear at the trial, it must beresponsive to the pleadings.[4] So anything that goes in release ordischarge of the judgment may be shown;[5] and the statute oflimitations of the State where suit is brought will be available, if the casecomes within it.[6] But it is not competent for any State to pass anact of limitations which would in effect nullify judgments rendered in otherStates, and allow no remedy upon them whatever. Reasonable opportunity toenforce a demand must always be afforded.[7] Constructive service ofprocess by publication or attach-
[1] Mills v. Duryea, 7 Cranch, 481.
[2] Hampton v. McConnell, 3 Wheat. 234; Greenv. Van Buskirk, 7 Wall. 139. Judgments in one State when proved inanother differ from judgments of another country in this alone, that they arenot impeachable for fraud nor open to question upon the merits. Hanleyv. Donoghue, 116 U. S. 1.
[3] Harris v. Hardeman, 14 How. 334; Cheever v.Wilson, 9 Wall 108; Galpin v. Page, 18 Wall. 350; Thompson v.Whitman, 18 Wall. 457; Grover & B. M. Co. v. Radcliffe, 137 U. S.287; Arnott a. Webb, 1 Dillon, 362; Whart., Confl. L., §§ 811,819.
[4] Reynolds v. Stockton, 140 U. S. 254.
[5] McElmoyle v. Peters, 13 Pet. 312; D'Arcy v.Ketchum, 11 How 165.
[6] Jacquette v. Hugunon, 2 McLean, 129.[7] Christmas v. Russell, 5 Wall. 290.
ment of property is sufficient to enable the courts of a State tosubject property within it to their jurisdiction, in such cases as the statutesof the State may provide therefor; but such a service cannot be the foundationof a personal judgment.[1] Process from the tribunals of one Statecannot run into another State and summon parties there domiciled to leave itsterritory and respond to proceedings against them. Publication of process ornotice within the State where the tribunal sits cannot create any greaterobligation upon the non-resident to appear. Process sent to him out of theState, and process published within it, are equally unavailable in proceedingsto establish his personal liability.[2] But in respect to the res, ajudgment in rem, rendered with competent jurisdiction, is conclusiveeverywhere.[3]
Legislation. Congress has legislated upon this subject byproviding that " The acts of the legislature of any State or Territory, or ofany country subject to the jurisdiction of the United States, shall beauthenticated by having the seal of such Territory, State, or country affixedthereto. The records and judicial proceedings of the courts of any State orTerritory, or of any such country, shall be proved or admitted in any othercourt within the United States, by the attestation of the clerk and the seal ofthe court annexed, if there be a seal, together with the certificate of thejudge, chief justice, or presiding magistrate, that the said attestation is indue form. And the said records and judicial proceedings, so authenticated,shall have such faith and credit given to them in every court within the UnitedStates as they have by law or usage in the courts of the State from which theyare taken."[4]
[1] Boswell's Lessee v. Otis, 9 How. 336; Cooperv. Reynolds, 10 Wall. 308.
[2] Pennoyer v. Neff, 95 U. S. 714, 727.
[3] D'Arcy v. Ketchum, 11 How. 165; Williams v.Armroyd, 7 Cranch, 423.
[4] Rev. Stat. U. S., § 905.
This law provides what shall be sufficient in all cases, but it does notpreclude the States making other regulations, not in conflict with these, forthemselves, nor does it prevent making proof of records in Common lawmodes.[1] These provisions do not prescribe how the effect of suchjudgments in the State where rendered shall be shown. Hence the effect must beproved as a fact.[2]
Privileges and Immunities of Citizens. The next succeedingprovision is that " the citizens of each State shall be entitled to all theprivileges and immunities of citizens of the several States."[3]
The privileges and immunities here in question are those only whichbelong to State citizenship, and which, but for this provision, might be withinthe reach of unfriendly State legislation. A complete enumeration of them hasnever been attempted. Mr. Justice Washington thought they might be "allcomprehended under the following general heads: protection by the government,the enjoyment of life and liberty, with the right to acquire and possessproperty of every kind, and to pursue and obtain happiness and safety, subjectnevertheless to such restraints as the government may justly prescribe for thegeneral good of the whole. The right of a citizen of one State to pass throughor to reside in any other State, for purposes of trade, agriculture,professional pursuits, or otherwise, to claim the benefit of the writ ofhabeas corpus, to institute and maintain actions of every kind in thecourts of the State, to take, hold, and dispose of property, either real orpersonal, and an exemption from higher taxes or impositions than are paid bythe citizens of other States, may be mentioned as some of the principalprivileges and immunities of citizens which are clearly embraced by the generaldescription of privileges deemed
[1] Gaines v. Relf, 12 How. 472; White v.Burnley, 20 How. 235.
[2] Hanley v. Donoghue, 116 U. S. 1. [3]Const., Art. IV. § 2, cl. 1.
to be fundamental."[1] Other judges, while approving of thisgeneral enumeration, have been careful to say that they deem it safer and morein accordance with the duty of a judicial tribunal to leave the meaning "to bedetermined in each case upon a view of the particular rights asserted anddenied therein. And especially is this true when we are dealing with so broad aprovision, involving matters not only of great delicacy and importance, butwhich are of such a character that any merely abstract definition couldscarcely be correct; and a failure to make it so w6uld certainly producemischief."[2]
This much it is safe to say, that, "according to the express words andclear meaning of this clause, no privileges are secured by it but those whichpertain to citizenship."[3] And the term "citizens," as here used,applies only to natural persons, members of the body politic, owing allegianceto the State, and not to corporations, which are artificial persons created bythe legislature, and possessing only the attributes which the legislature hasprescribed. It is true that corporations are permitted to sue in the Federalcourts on an assumption that their members are citizens of the State in whichthey have corporate being; but it has never been held that they are citizens inthe sense here intended.[4]
It is not a privilege of a citizen of Mississippi that he shall have inLouisiana such rights in property under and by virtue of the marriage relationas are given by the laws of the latter State to those who are married orre-
[1] Corfield v. Coryell, 4 Wash C C. 371, 380. And seeSmith v. Maryland, 18 How. 71; Conner v. Elliott, 18 How. 591;Ward v. Maryland, 12 Wall. 418. The object of the clause is to givenon-residents not higher privileges than residents possess, but equalprivileges with them. Kimmish v. Ball, 129 U. S. 217.
[2] Conner v. Elliott, 18 How. 591, 593; McCreadyv. Virginia, 94 U. S. 391, 395.
[3] Conner v. Elliott, 18 How. 591, 593.
[4] Paul v. Virginia, 8 Wall. 168, 177, 178; PembinaMining Co. a Pennsylvania, 125 U. S. 181.
side therein. Every State regulates these rights for its own peopleaccording to its own views of right and policy.[1] Neither is it aprivilege of State citizenship to take fish in the public waters of otherStates. Fisheries in public waters belong to the State in which they are, andthe State may provide how they may be made available for the advantage of itspeople. Therefore a State enactment by which others than citizens of the Stateare forbidden to plant oysters in the soil covered by tide waters is notunconstitutional. The people of the State, and they alone, own the property;and they own it, not by virtue of citizenship merely, but of citizenship anddomicile united; that is to say, by virtue of a citizenship confined to thatparticular locality.[2]
That the taxation of a State which discriminates against the citizens ofother States is repugnant to the provision under consideration has beengenerally conceded. A statute imposing license fees on those carrying onmercantile business, but discriminating against those not permanent residentsof the State, is therefore invalid.[3]
The right to bring suit in those courts of a State which havejurisdiction of the subject-matter is the privilege of every citizen of theState, and, therefore, is the privilege of the citizen of another State, eventhough the defendant is a non-resident also.[4]
Extradition of Offenders. The Constitution further
[1] Conner v. Elliott, 18 How 591.
[2] McCready v. Virginia, 94 U. S. 391, 396; Chambersv. Church, 14 R I. 398; State v. Medbury, 3 R I. 138; Crandallv. State, 10 Conn 340, Slaughter v. Commonwealth, 13 Grat 767;People v. Coleman, 4 Cal 46 Before slavery was abolished, it was not oneof the privileges of State citizenship for a master to take his slaves with himin passing through a free State, and hold them there in servitude. Lemmonv. People, 20 N. Y. 562.
[3] Ward v. Maryland, 12 Wall. 418. See Guy v.Baltimore, 100 U. S. 434.
[4] Cofrode v. Circuit Judge, 79 Mich 332. CompareCentral R. R. Co. v. Ga. Constr. Co., 32 S. C. 319; Eingartner v.Illinois Steel Co., 94 Wis. 70.
provides that "a person charged in any State with treason, felony, orother crime, who shall flee from justice and be found in another State, shall,on demand of the executive authority of the State from which he fled, bedelivered up, to be removed to the State having jurisdiction of thecrime."[1]
Whatever doubt there may have been formerly on the subject, it is nowsettled that statutory crimes, though of recent creation, are as much withinthis provision as crimes existing at the common law or created by statuteprevious to the adoption of the Constitution.[2] It is not clear,however, that every possible offence against the laws was meant to be included.The word crime is made use of very commonly as embracing only seriousoffences, in contradistinction to misdemeanor, which is given to such trivialoffences as are but lightly punished;[3] but the line of divisionbetween the two is not clearly drawn, and is not the same in differentStates.
No case comes within the Constitution unless there has been a fleeingfrom justice. This implies that the person accused must have been within thejurisdiction of the State accusing him, and must have fled therefrom. If infact he was never within it, he cannot have fled from its justice; andtherefore a person who in another State may have conspired with others tocommit an offence in Missouri, is not demandable by Missouri as afugitive.[4] But if he was within the State at the time ofcommitting the offence, he is to be held a fugitive if, when sought, he isfound outside of the State.[5]
The charge against the accused must be made in some
[1] Const., Art IV. § 2, cl 2.
[2] Kentucky v. Dennison, 24 How. 66; Matter of Clark,9 Wend. (N. Y.) 212, Ex parte Reggel, 114 U S. 642.
[3] Hughes's Case, 1 Phil. (N. C ) 57, 64; Morton v.Skinner, 48 Ind 123; Taylor v. Taintor, 16 Wall. 366.
[4] Ex parte Smith, 3 McLean, 133
[5] Roberts v. Reilly, 116 U. S. 80; Matter ofVoorhees, 32 N J 141; Spear on Extradition, 313, 314.
due form of law, in some species of judicial proceeding instituted inthe State from which he is a fugitive. It will not be sufficient unless itcontains all the legal requisites for the arrest of the accused and hisdetention for trial, if he were then within the State. Therefore, nothing shortof an indictment, or a complaint under oath, making out a prima faciecase, can be sufficient.[1] This is to be presented to the executiveof the same State as the foundation for his demand; but the fact that he makesa requisition based upon it is not conclusive of its sufficiency, and this maybe inquired into, not only by the executive on whom demand is made, but also bythe courts on habeas corpus in case the accused isarrested.[2] It has been decided in some cases, however, that thecourts of the State making the demand should be left to decide on thesufficiency of their own papers;[3] and this is a very proper courseunless the defects are very clear and unquestionable.
When demand is made in due form, it is the duty of the executive on whomit is made to respond to it, and he has no moral right to refuse.[4]Nevertheless, if he does refuse, no power has been conferred on the Federalcourts to compel obedience,[5] and the governors of States haveoften refused compliance with the demand, when in their opin-
[1] People v. Brady, 56 N. Y. 182; Statev. Hufford, 28 Iowa, 391; Kingsbury's Case, 106 Mass. 223; Exparte Cubreth, 49 Cal. 436; Commonwealth v. Deacon, 10 S. & R.125.
[2] The executive upon whom the demand is made must decidewhether the papers show the person to be properly charged with a crime, andwhether the person is a fugitive. If the papers clearly show no legal cause ofdetention, the courts may release the person, but how far they may go inreviewing the Governor's determination of the fact as to the person being afugitive is not well settled. Roberts v. Reilly, 116 U. S. 80; Ex parteReggel, 114 U. S. 642.
[3] Johnson v. Riley, 13 Ga. 97: State v.Buzine, 4 Harr (Del) 572; Matter of Voorhees, 32 N. J. 141; Davis's Case, 122Mass. 324; Matter of Manchester, 5 Cal 237; Ex parte Thornton, 4 Texas, 635;Pearce v. Texas, 155 U. S. 311.
[4] Kentucky v. Dennison, 24 How. 66.
[5] Ibid.
ion substantial justice did not require it. The process is no doubtsometimes made use of to compel the settlement of private demands; but this isan abuse which it is specially incumbent on the authorities of the State makingthe demand to guard against, and if the executive of the other State assumes todecide upon the good faith of the demand, he takes upon himself a questionableresponsibility, with very inadequate means of discharging it intelligently andjustly.
When the Federal government has entered into an extradition treaty witha foreign government, a fugitive from justice brought into this country onprocess of extradition should be privileged from prosecution for an offenceother than that with which he was charged when the demand was made upon theforeign government, until a reasonable time and opportunity have been given toreturn to the country from which he was taken.[1] But this principledoes not obtain where a person is surrendered by one State of the Union toanother. In such a case there is no treaty, constituting the supreme law of theland, and limiting the authority of the State.[2] If a fugitive fromjustice is kidnapped in a foreign nation or in a State of the Union, that factdoes not exempt him from trial and punishment by the State within which he isbrought.[3]
If a State to which an offender has fled has herself against him someunsatisfied demand of justice, it is proper for her to proceed to enforce itbefore honoring a requisition. No higher duty can be imposed upon her than thatof satisfying the demands of her own laws.[4]
Legislation. The extradition of fugitives as between theStates has commonly been made under State legislation, and the States inpassing laws on the subject appear
[1] United States v. Rauscher, 119 U. S. 407;Commonwealth v. Hawes, 13 Bush (Ky.), 697; Wharton, Confl. of Laws,§ 2965.
[2] Lascelles v. Georgia, 148 U. S. 537.
[3] Ker v. Illinois, 119 U. S. 456; Mahon v.Justice, 127 U. S. 700; Cook v. Hart, 146 U. S. 183.
[4] Taylor v. Taintor, 16 Wall. 366; Matter ofTroutman, 24 N. J. 634
to have assumed that the duty imposed by the Constitution was a Stateduty, performance of which was to be demanded by one State and made by theother. Whether this is strictly true, or whether, on the other hand, theprinciples apply which govern in the surrender of fugitives from service, andwhich would exclude legislation by the States,[1] has never beendecided. Congress, however, at an early day enacted that, "Whenever theexecutive authority of any State or Territory demands any person, as a fugitivefrom justice, of the executive authority of any State or Territory to whichsuch person has fled, and produces a copy of an indictment found, or anaffidavit made before a magistrate of any State or Territory, charging theperson demanded with having committed treason, felony, or other crime,certified as authentic by the Governor or chief magistrate of the State orTerritory from whence the person so charged has fled, it shall be the duty ofthe executive authority of the State or Territory to which such person has fledto cause him to be arrested and secured, and to cause notice of the arrest tobe given to the executive authority making such demand, or to the agent of suchauthority appointed to receive the fugitive, and to cause the fugitive to bedelivered to such agent when he shall appear. If no such agent appears withinsix months from the time of the arrest, the prisoner may be discharged." "Anyagent so appointed, who receives the fugitive into his custody, shall beempowered to transport him to the State or Territory from which he hasfled."2
[1] Prigg v. Pennsylvania, 16 Pet. 539.
[2] Rev. Stat. U. S., §§ 5278, 5279. The article ofthe Constitution providing for the return of fugitive slaves is now ofhistorical interest only. Const., Art IV. § 2, cl. 3. Prigg v.Pennsylvania, 16 Pet. 539.
CHARTER XI.
THE GUARANTY OF REPUBLICAN GOVERNMENT TO THE STATES.
The Constitution. It is imposed as a duty upon the UnitedStates to guarantee to every State in the Union a republican form ofgovernment.[1] The requirement sprang from a conviction thatgovernments of dissimilar principles and forms were less adapted to a federalunion than those which were substantially alike, and that the superintendinggovernment ought to possess authority to defend the system agreed upon againstinnovations which would bring with them discordant and antagonisticprinciples.[2]
The terms of this provision "presuppose a pre-existing government of theform that is to be guaranteed. As long, therefore, as the existing republicanforms are continued by the States, they are guaranteed by the federalConstitution. Whenever the States may choose to substitute other republicanforms, they have a right to do so, and to claim the federal guaranty for thelatter. The only restriction imposed on them is, that they shall not exchangerepublican for anti-republican constitutions." [3]
What is Republican. By republican government is understooda government by representatives chosen by the people; and it contrasts on oneside with a democracy, in which the people or community as an organized wholewield sovereign powers of government, and on the other with the rule of oneman, as king, emperor, czar, or sul-
[1] Const., Art. IV. § 4. [3] Federalist, No.43.
[2] Federalist, Nos. 21 and 43.
tan, or with that of one class of men, as an aristocracy. In strictnessa republican government is by no means inconsistent with monarchical forms, fora king may be merely an hereditary or elective executive while the powers oflegislation are left exclusively to a representative body freely chosen by thepeople. It is to be observed, however, that it is a republican form ofgovernment that is to be guaranteed; and in the light of the undoubted factthat by the Revolution it was expected and intended to throw off monarchicaland aristocratic forms, there can be no question but that by a republican formof government was intended a government in which not only would the people'srepresentatives make the laws, and their agents administer them, but the peoplewould also, directly or indirectly, choose the executive. But it would by nomeans follow that the whole body of the people, or even the whole body of adultand competent persons, would be admitted to political privileges; and in anyrepublican State the law must determine the qualifications for admission to theelective franchise.
As the original States must be understood to have had the proper form ofgovernment when the Constitution was adopted, so the subsequent admission of aState to the Union by Congress must be received as a decision that itsconstitution is not objectionable.
Changes in Government. A republican government onceestablished in a State may be endangered or set aside, so as to demand theaction of Congress, under this provision, in the following several ways:
First. By the hostile action of some foreign power, in takingmilitary possession of the territory of a State and setting up some governmenttherein not established by the people themselves. Such a government would notbe republican, whatever its form, because not expressing the will of the peoplegoverned, but of the foreign power establishing it.
Second. By the revolutionary action of the people them-
selves in forcibly rising against the constituted authorities, andsetting the government aside, or attempting to do so, for some other. In thiscase the United States would be called upon to act, whatever the form of thegovernment proposed. Adequate provision having been made for changes inconstitutions under regular and peaceful forms, and without resort torevolution, it is not contemplated that revolution by force shall ever besuffered. The theory that the people at will may change their institutions isfor the time subordinated to their constitution, which they provide may bechanged in a certain specified mode, but by implication agree shall not bechanged otherwise.
When an attempt is made to change institutions in either of the modesabove specified, it will become the duty of the federal government to interposeand protect the people of the State in their existing government by theemployment of the military force, to the full extent, if need be, of thenational power.[1]
Third. In strict observance of the forms prescribed by a stateconstitution for revising or amending it, it would be possible for the peopleof the State to effect such changes as would deprive it of its republicancharacter. Thus they might in that manner set up a monarchy, or so restrictsuffrage as to deprive representation altogether of its popular character, andthereby establish an aristocracy; and it would then become the duty of Congressto interfere. But first the question would present itself, whether the changesmade are so radical in their nature as to render the government unrepublican;and a decision by Congress in the negative would be final and conclusiveagainst interference.
It is always possible that Congress may assume changes in stategovernment to be unwarranted when they are not, and thereupon interfere tooverturn institutions with which they have no right to meddle. This is onlysaying that
[1] Texas v. White, 7 Wall 700; Luther v.Borden, 7 How. 1.
any power, however necessary and however well guarded, may be abused;but in every State there must be some final tribunal for the determination ofall probable controversies: and as Congress is made the final judge in thiscase, there can be no appeal from its decision except to forcibleresistance.
Reconstruction. Whenever a state government has beendisplaced by rebellion or other force, it will become necessary for someexisting authority to institute proceedings for restoring it. The properauthority for this purpose would seem to be the legislature of the Union. As inthe case of Territories, if the people of the State by spontaneous actionshould originate an unexceptionable government for themselves, it might berecognized, and the State admitted to representation under it. But to preventconfusion some enabling action would generally be found advisable, if notabsolutely essential.
Conflicting Claims to Government. When a dispute arisesrespecting whether a particular instrument has become established as theconstitution of a State, and there are parties claiming under and in oppositionto it, or when the executive or legislative offices of a State are the subjectof contest, it is always supposed that there exists within the State itselfproper, legitimate, and effectual authority for determining the contest. It isnot the business of the federal authority to interfere in such cases, unlessregularly called upon to give protection against violence. Such contests mustbe settled by the state judicial tribunals when the case is such as to admit ofit, or by the legislature, or even by the acquiescence of the people in theclaims of one of the parties; and the federal government should accept thesettlement as final. The federal authorities can have no concern with questionsof regularity in state proceeding, or with questions of what is proper or justin state affairs. Nevertheless in the case of a disputed state government itmay become necessary for the political departments of the United Statesgovernment, in
the performance of their own duties, to recognize one of the two asrightful; and when this takes place the recognition will bind the government ofthe United States in all its departments, and also thepeople.[1]
Invasion and Insurrection. The United States are alsorequired to protect each State against invasion, and, on application of thelegislature, or of the executive when the legislature cannot be convened,against domestic violence.[2] This article, as has been truly said,becomes an immense acquisition of strength and additional force to the aid ofany state government in case of internal rebellion or insurrection againstlawful authority; while, on the other hand, by the requirement of a demand foraid every pretext for intermeddling with the internal concerns of any State,under color of protecting her against unlawful violence, is takenaway.[3]
Titles of Nobility. The States are prohibited, as Congressis, from bringing an anti-republican feature into American institutions by thegrant of titles of nobility.[4] The prohibition executes itself, asthe titles, should a grant be attempted, would be simply void.
[1] Luther v. Borden, 7 How. 1.
[2] Const., Art. IV. § 4; Federalist, No.. 43.
[3] 1 Tuck. Bl., App. 367. [4] Const., Art. I.§ 10, cl. 1.
CHAPTER XII.
THE AMENDMENTS TO THE CONSTITUTION.
Amendments adopted. The Constitution provides a simple,easy, and peaceful method of modifying its own provisions,[1] inorder that needed reforms may be accepted and violent changes forestalled.Fifteen amendments have already been made. The most of these have for theirobject to give new rights, or further protection to rights before existing. Theeleventh amendment merely imposes a restriction upon the federal judicialpower, so as to exclude from it all cognizance of suits against States broughtby citizens of other States or citizens or subjects of foreign states; and thetwelfth introduces a change in the mode of making choice of President andVice-President. The first ten amendments and the last three naturally arrangethemselves in two classes, each of which, by its subject-matter and purpose, isdistinctly referable to a particular period in the constitutional history ofthe country. One class consists of those which impose limitations on the powersof the several departments of the federal government, with a view morecompletely to protect the liberties of the people and the reserved rights ofthe States; and the other is confined in the main to taking from the States thepower to oppress particular classes of the people, to discriminate unjustlybetween classes, and to take away such rights as are fundamental. The first tenbelong to the one class, and the last three to the other.
[1] Const., Art. V.
The First Ten Amendments. The ten amendments the purposeof which was to establish guaranties against an abuse of the powers which hadbeen granted to the general government, were adopted in pursuance ofrecommendations by state conventions when giving assent to theConstitution.[1] They all sprung from a distrust of power remotefrom the people, a distrust which the colonial experience hadinculcated, and which the events leading to the Revolution had intensified. Thecentral government, in exchanging the Articles of Confederation for theConstitution, was receiving an immense accession of power, and it was possibleto abuse this power to the oppression of the citizen, and to the destruction ofrights in the States which had never been surrendered. Up to that time theStates were the special objects of the regard and affection of their peoplerespectively. They had enjoyed liberty and a large measure of prosperity understate laws, they held their property and protected themselves in their domesticrelations under the same laws, and when oppression had come and grown until itseemed intolerable, its source was to be traced to a distant authority, whichoverruled or displaced the local laws and took away the protection they wouldhave given. Jealousy of centralization was therefore a strong if not aparamount sentiment, and it found expression in these amendments, in which itis declared that certain enumerated liberties of the people shall not be takenaway or abridged; that the enumeration in the Constitution of certain rightsshould not be construed to deny or disparage others retained by the people; andthat the powers not delegated to the United States by the Constitution, norprohibited by it to the States, were reserved to the States respectively, or tothe people.
The Last Three Amendments. In the lapse of ninety years, astage in political history is reached in which the
[1] They were ratified by a sufficient number of the Statesto secure their adoption before December 15, 1791.
fears and anxieties of the people took a new direction. In rapidsuccession one State after another in one third of the Union had rejected andthrown off the federal authority, and it had only been restored through a warprosecuted on both sides with great bitterness and with enormous destruction oflife and property. The temporary displacement of federal power had beenaccomplished by the action of the States in their corporate capacity, and theadmirable system of self-government had naturally and most effectivelyco-operated in the action. Wide divergences in sentiment regarding matters ofinternal policy, ripening into great estrangement of feeling between thesections, had led to the disruption, and when the exhausting war was over thesame divergence in sentiment and a like estrangement in feeling stillprevailed, and were now found to centre on the policy to be adopted forrestoring and strengthening the shattered fabric of government. The sentimentof national unity had encountered on the field of arms the sentiment ofdevotion to State and section, and, though the struggle was over, the causes tosome extent remained, and might possibly produce like fruit in the future. Ithad been found in vain that the federal authorities held, and the federalcourts decided, that under the Constitution a State had no right to withdrawfrom the Union; it was undeniable that for a time certain of the States hadsucceeded in severing then relations and setting up a new government; andthough the federal authority had demonstrated that it had, under theConstitution, ample power for self-defence and protection, it was deemed wiseand prudent to require the States to surrender the institution that was theimmediate occasion of the civil war, as well as the power to deal unjustly andpartially with classes of the people against whom there might be jealousies,prejudices, or antipathies, growing out of the struggle through which thecountry had passed, or out of some of the antecedent or concomitantcirc*mstances. While, therefore, the first amendments were for the pur-
pose of keeping the central power within due limits, at a time when thetendency to centralization was alarming to many persons, the last were adoptedto impose new restraints on state sovereignty, at a time when state powers hadnearly succeeded in destroying the national sovereignty.[1]
Justice of the Amendments. Of these amendments it may besafely affirmed that the first ten took from the Union no power it ought everto have exercised, and that the last three required of the States the surrenderof no power which any free government should ever employ.[2] If thethirteenth, fourteenth, and fifteenth amendments are subject to any justcriticism, it must concern not what the States are required to surrender somuch as the incidental expansion of federal legislative and judicial power.
How adopted. It is a valuable tribute to the generalexcellency of the Constitution that no convention for its revision has everbeen convened, nor indeed ever very seriously proposed except at a timeimmediately before the civil war, and when a settlement of existingcontroversies in that mode seemed to most people an impossibility. All theamendments originated in Congress, were proposed by Congress to the States, andby the States were ratified. The questions which their proposal raised were inthe main political, but there were two questions of law of no little importanceand nicety. Neither of these, however, received authoritative settlement,because in the end such a settlement became unnecessary. These questions werethe following:
1. The Constitution[3] requires for the adoption of any
[1] These amendments were declared adopted as follows thethirteenth, Dec. 18, 1865; the fourteenth, July 28, 1868; and the fifteenth,March 30,1870.
[2] Those who claim that emancipated slaves should be paidfor have generally agreed that the United States, and not the States, shouldmake the payment
[3] Const., Art. V.
proposed amendment that it shall be ratified by the legislatures orconventions of three fourths of the States. At the time when amendments werefirst proposed some of the States had not been restored to their normal andconstitutional relations to the Union, and had not been admitted torepresentation in Congress. Until they should be, it was by no means certainthat the assent of three fourths of all the States could be obtained to anyamendment, and the question was made whether States not then holding theirconstitutional relations to the others in the Union were to be counted at all.Fortunately, in the delay that occurred while ratification was in progress,enough of the States were admitted to representation in Congress, and joined inthe ratification, to render the question unimportant.
2. Two States after giving their consent to the fourteenth amendment,afterwards, but before three fourths of all had ratified, through theirlegislatures declared the consent withdrawn.[1] It was scarcelypretended that this could have been done if the proper majority of the Stateshad previously ratified; but it was insisted that it might be done at any timebefore the amendment had become incorporated in the Constitution. This questionalso was rendered immaterial, and in the same way with the other. It isinteresting, however, to note that, in a somewhat analogous case, it has beenrepeatedly decided that consent once given is given finally. Where by statute amunicipality is permitted, with the consent of a majority of its electors, toraise exceptional taxes or assume exceptional burdens, an election once heldwhich results in a favorable vote is conclusive If, however, the first electionresults in a majority against the proposal, and there is nothing in
[1] The two States were Ohio and New Jersey. New Yorkdeclared her consent to the fifteenth amendment withdrawn under likecirc*mstances. Oregon made a like declaration in respect to the fourteenthamendment, some time after the proclamation of the Secretary of Stateannouncing its ratification.
the law which negatives the right to vote again, the case stands as ifno election had been had, and the sense of the people may be taken again andagain, and a favorable vote at the last election is as effectual as if it hadbeen obtained at first.[1]
[1] Woods v. Lawrence County, 1 Black. 386; Woodwardv. Supervisors, 2 Cent, Law Jour. 396; Society for Savings v. NewLondon, 29 Conn. 174; Supervisors v. Galbraith, 99 U. S. 214. See alsoStory, Com., 4th ed., § 1929, n.; Miller, Lectures on the Const., 642,653.
CHAPTER XIII. CIVIL RIGHTS AND THEIR GUARANTIES.
SECTION I. RELIGIOUS LIBERTY.
The Constitution. The Constitution as originally adopteddeclared that "no religious test shall ever be required as a qualification toany office or public trust under the United States."[1] By amendmentit was farther provided that "Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercisethereof."[2] Both these provisions, it will be seen, are limitationsupon the powers of Congress only. Neither the original Constitution nor any ofthe early amendments undertook to protect the religious liberty of the peopleof the States against the action of their respective state governments. Thefourteenth amendment is perhaps broad enough to give some securities if theyshould be needful.
Establishment of Religion. By establishment of religion ismeant the setting up or recognition of a state church, or at least theconferring upon one church of special favors and advantages which are denied toothers.[3] It was never intended by the Constitution that thegovernment should be prohibited from recognizing religion, or that religiousworship should never be provided for in cases where a proper recognition ofDivine Providence in the working of government might seem to require it, andwhere it might be done without drawing any invidious distinctions betweendifferent religious beliefs, organizations,
[1] Const., Art. VI. cl. 3. [2] Const., Amendment1. [3] 1 Tuck Bl Com., App. 296; 2 Ibid., App., Note G.
or sects. The Christian religion was always recognized in theadministration of the common law; and so far as that law continues to be thelaw of the land, the fundamental principles of that religion must continue tobe recognized in the same cases and to the same extent as formerly. Thepropriety of making provisions for the appointment of chaplains for the twohouses of Congress, and for the army and navy, has been sometimes questioned;but the general sentiment of the country has approved it, and the States makecorresponding provision for legislative bodies and state institutions. Thefederal legislation has never gone farther; it has never undertaken toprescribe a religious test for any purpose. Neither has it ever assumed theauthority to prohibit the free exercise of religion anywhere. But the freedomof religion cannot be extended to prevent the punishment of crimes. Polygamyand bigamy are crimes none the less because encouraged by the teachings of areligious sect. "To call their advocacy a tenet of religion is to offend thecommon-sense of mankind."[1]
State Guaranties. With the exception of the provisionsabove made, the preservation of religious liberty is left to the States, andthese without exception have constitutional guaranties on the subject. In themain these are alike, and they may be summed up as follows:
1. They establish a system, not of toleration merely, but of religiousequality. All religions are equally respected by the law; one is not to befavored at the expense of others, or to be discriminated against, nor is anydistinction to be made between them, either in the laws, in positions under thelaw, or in the administration of the government.
[1] "Whilst legislation for the establishment of a religionis forbidden and its free exercise permitted, it does not follow thateverything which may be so called can be tolerated. Crime is not the lessodious because sanctioned by what any particular sect may designate asreligion." Field, J., Davis v. Season. 133 U. S. 333.
2. They exempt all persons from compulsory support of religious worship,and from compulsory attendance upon the same.
3. They forbid restraints upon the free exercise of religion accordingto the dictates of conscience, or upon the free expression of religiousopinions.[1]
These are adopted as fundamental principles. No man in religious mattersis to be discriminated against by the law, or subjected to the censorship ofthe State or of any public authority; and the State is not to inquire into ortake notice of religious belief or expression so long as the citizen performshis duty to the State and to his fellows, and is guilty of no breach of publicmorals or public decorum.[2]
Blasphemy, &c. But the courts of the Union and of theStates, in administering the common law, find it necessary to take notice thatthe prevailing religion of the country is Christian,[3] and thatbecause of that fact certain conduct may constitute a breach of public decorum,and therefore be illegal, though it might not be where a different religionprevailed. The law of blasphemy depends largely for its definition andapplication upon the generally accepted religious belief of the people; and inthe law of contracts many provisions might be found to be illegal in aChristian country which would be enforced where the Mohammedan or some otherform of religion prevailed. Questions of public policy, as they arise in thecommon law, must always be largely dependent upon the prevailing system ofpublic morals, and the public morals upon the
[1] In State v. District Board, 76 Wis. 177, the merereading of the King James version of the Bible in the public schools was heldto violate provisions like the above. For a discussion of kindred cases, seenote to this case in 29 Am. Law Register, 321, and compare Moore v.Monroe, 64 Iowa, 367, where it was held that such reading did not make theschool a place of worship.
[2] Cooley, Const. Lim., ch. 13.
[3] Vidal v. Girard's Executors, 2 How. 127.
prevailing religious belief.[1] Legislation may alsorecognize the general religious sentiments of the people in the policeregulations it establishes and in the statutory offences it demies. Thus, itmay prohibit secular employments on the first day of the week, that day beingobserved as a day of rest and worship by religious peoplegenerally;[2] and it may condemn and provide for the punishment ofany conduct which is condemned by the common voice of Christian nations, thoughadmitted elsewhere, such as cruel sacrifices, the practice of polygamy,&c.[3] And it may require that, all religious worship andobservances shall be conducted in accordance with the ordinary rules of order,and punish whatever extravagances tend to a breach of the public peace. Buteven the law of blasphemy must be so administered as to preserve liberty ofdiscussion and argument upon the most vital points.[4]
Exemptions. Whether or not it be wise or politic to exemptthe property used for religious purposes from taxation, as is commonly done, itcannot be said to be in a legal sense unconstitutional to do so. As has beforebeen said, the selection of subjects for taxation is always a matter of policy,and the legislation will exempt from the burden such as a general regard to theinterests of the political community may seem to renderadvisable.[5] If it be unwise or unjust, legislation must correctthe evil. But exemptions, to be valid, must be impartial as between sects.
[1] People v. Ruggles. 8 Johns. (N. Y.) 290;Commonwealth v. Kneeland, 20 Pick. (Mass.) 206; State v.Chandler, 2 Harr. (Del.) 553.
[2] Commonwealth v. Wolf, 3 S. & R. (Penn.) 48;Frolickstein v. Mobile, 40 Ala. 725.
[3] Spear, Religion and the State, 315-318.
[4] People v. Ruggles, 8 Johns. (N. Y.) 290, 293
[5] But such exemptions are mere favors; they are to bestrictly construed. Matter of Mayor, &c. of New York, 11 Johns. (N. Y.) 77, Broadway Baptist Church v. McAtee, 8 Bush (Ky.), 508. And they may berepealed. Christ Church v. Philadelphia, 24 How 300
SECTION II. SECURITY OF THE DWELLING, AND OF PERSON ANDPAPERS.
Quartering Soldiers, &c. The third article of theamendments provides that "no soldier shall, in time of peace, be quartered inany house without the consent of the owner; nor in time of war but in a mannerto be prescribed by law." The evil at which this is aimed has been so longunpractised in this country, that it is difficult to suggest to the mind thepossibility that security against it may be necessary in a country governed bysettled principles of law. Nevertheless, a declaration of the indefeasibleright of the citizen can never be wholly needless.
Soldiers will be quartered upon the people, if at all, under the ordersof a superior, and either because of some supposed imperious necessity, or inorder to annoy and injure those who are compelled to receive them. The pleawill always be that of necessity; but this can never be a truthful plea in timeof peace, and if the necessity is likely to arise in time of war, the firstprinciples of justice demand that it should be provided for by law, andlimitations and restraints imposed. At best it is an arbitrary proceeding: itbreaks up the quiet of home; it appropriates the property of the citizen to thepublic use without previous compensation, and without assurance of compensationin the future, unless the law shall have promised it. It is difficult toimagine a more terrible means of oppression than would be the power in theexecutive, or in a military commander, to fill the house of an obnoxious personwith a company of soldiers, who shall be fed and warmed at his expense, underthe direction of an officer accustomed to the exercise of discretionaryauthority within the limits of his command, and in whose presence the ordinarylaws of courtesy, not less than the rules of law which protect person andproperty, may be made to bend to whim or caprice.[1] Suchoppressions were fresh
[1] Cooley, Const. Lim., 6th ed , 373.
in the minds of the people when the Declaration of Independence wasmade, and they then denounced what they prohibited by this amendment. It isproper to add that this protection has no application in time of war to theenemies of the country.
Unreasonable Searches and Seizures. The fourth article ofthe amendments has in view invasions of right which are more frequent, and ofwhich others may be guilty besides those who command the military force of theState. Most commonly, perhaps, they consist in a disregard of that maxim ofconstitutional law which finds expression in the common saying that every man'shouse is his castle. The meaning of this is that every man under the protectionof the laws may close the door of his habitation, and defend his privacy in it,not against private individuals merely, but against the officers of the law andthe state itself. The amendment declares that "The right of the people to besecure in their persons, houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated; and no warrants shall issue butupon probable cause, supported by oath or affirmation, and particularlydescribing the place to be searched, and the persons or things to beseized."
The latter clause of the amendment sufficiently indicates thecirc*mstances under which a reasonable search and seizure may be made.First, a warrant must issue; and this implies, (a) a law which shallpoint out the circ*mstances and conditions under which the warrant may begranted; (b) a court or magistrate empowered by the law to grant it; (c) anofficer to whom it may be issued for service. Second, a showing ofprobable cause; by which is meant the production of satisfactory evidence tothe court or magistrate, (a) showing that a case exists in which the issue of awarrant would be justified by the law; (b) pointing out the place to besearched, and the persons or things to be seized if they shall be found there.Third, a particular description, in the warrant, of place, person,
or things sufficient to guide the officer in executing it. Nothing lessthan this can be sufficient.[1]
The law providing for search-warrants should be limited to cases ofactual crime, in which the thing which was the subject or the instrument of thecrime, or the supposed criminal, is concealed, or supposed to be concealed, onin dividual premises. The following are the most frequent cases: for propertystolen, and the supposed thief; for property brought into the country inviolation of the revenue laws, and the supposed smuggler; for implements ofgaming unlawfully kept; and for liquors unlawfully stored for sale. No doubtthe right of search may be extended by statute to other offences; but anysearch to obtain evidence of an intent to commit a crime can never belegalized.[2]
The warrant must be executed by a search in the very placedescribed, and not elsewhere; the service should be made in the day-time, andwithout the presence of a crowd of people;[3] and the subject of thesearch must be brought before the court or magistrate, to be disposed ofaccording to law.[4] If the officer obeys the command of hiswarrant, and is guilty of no excess or departure, he is protected, even thoughthe search proves to be fruitless and the showing of cause unfounded.
Without a search-warrant the doors of a man's dwelling may be forced forthe purpose of arresting a person known to be therein, for treason, felony, orbreach of the peace, or in order to dispossess the occupant when another, bythe judgment of a competent court, has been awarded the possession. In extremecases this may also be done for the enforcement of sanitary and other policeregulations;
[1] Bishop, Crim. Procedure, §§ 240-246. See Westv. Cabell, 153 U. S. 78.
[2] Wilkes's Case, 2 Wils. 151, and 19 State Trials, 1405;Broom, Const. Law, 613, De Lolme, Const. of England, ch 18.
[3] 2 Hale, P. C. 150; Arch. Cr. Law, 7th ed., 145[4] Fisher v. McGirr, 1 Gray (Mass.), 1, Green v.Briggs, 1 Curt 311; Hey Sing Jeck v. Anderson, 57 Cal. 251
but, in general, the owner may close the outer door against anyunlicensed entry, and defend it even to the taking of life if that shouldbecome necessary.[1]
The protection of the Constitution is not, however, confined to thedwelling-house, but it extends to one's person and papers, wherever they maybe. It is justly assumed that every man may have secrets pertaining to hisbusiness, or his family or social relations, to which his books, papers,letters, or journals may bear testimony, but with which the public, or anyindividuals of the public who may have controversies with him, can have nolegitimate concern; and if they happen to be disgraceful to him, they arenevertheless his secrets, and are not without justifiable occasion to beexposed.[2] Moreover, it is as easy to abuse a search for thepurpose of destroying evidence that might aid an accused party, as it is forobtaining evidence that would injure him, and the citizen needs protection onthe one ground as much as on the other. Even a search-warrant to seize privatepapers, letters, and memoranda, must be wholly unwarranted, except possibly incases of frauds upon the revenue, where the papers to be searched for have beenthe agencies or instruments by means of which the frauds have been accomplishedor aided.[3]
[1] Bohannon v. Commonwealth, 8 Bush (Ky.), 481; Pondv. People, 8 Mich. 150.
[2] Cooley on Torts. 2nd ed. 346.
[3] The seizure of the papers of Algernon Sidney, which weremade use of as the means of convicting him of treason, and of those of Wilkesabout the time that the controversy between Great Britain and the AmericanColonies was assuming threatening proportions, was probably the immediateoccasion for this constitutional provision. See Leach v. Money, Burr.1742; S. C. 1 W. Bl. 555, 19 State Trials, 1001 and Broom, Const. Law, 525;Entick v. Carrington, 2 Wits. 275; S. C. 19 State Trials, 1030, andBroom, Const. Law, 558, May, Const. Hist., ch. 10; Trial of Algernon Sidney, 9State
Trials, 817.
This whole matter is learnedly and elaborately discussed in UnitedStates v. Boyd, 116 U. S. 616, where the question arose upon a revenuestatute providing that in case of an action against an importer a certain papershould on notice be produced by him, or its
General Warrants. A general warrant is one which either,(1) describes or names no offender, but leaves the ministerial officer todiscover and apprehend at discretion; or (2) describes no place to be searched,but gives the officer unlimited authority to invade the privacy of individualswithout restraint. Such warrants were not uncommon in England previous to thedecision in Wilkes's Case, which forever determined theirillegality;[1] and there were instances in the Colonies also whichwere among the grievances complained of when the Revolution wasinaugurated.[2]
Arrests without Warrant. There are a few cases in whicharrests may be made without warrant; but the law gives little countenance tosuch arrests, and whoever makes one must show that the exceptional case existedwhich would justify it. (1) Any one may arrest another whom he sees committingor attempting to commit a felony or forcible breach of the peace. (2) A peaceofficer may arrest, on reasonable grounds of suspicion of felony; but theperson arrested must be at once taken before some court or magistrate ofcompetent jurisdiction to take cognizance of the offence. (3) A peace officermay also make arrests without warrant when municipal by-laws are being violatedin his presence;[3] but he will be a trespasser if
contents as stated by the district attorney should be taken as true. Thecourt considered the statute bad as violating the spirit of the prohibition ofthe Fifth Amendment against compelling a person to be a witness againsthimself, as well as that of the Fourth against unreasonable searches andseizures. It held that a compulsory production of papers to establish acriminal charge or a forfeiture of property was illegal whenever a search andseizure would be; that such compulsory production or search and seizure to getevidence of a crime is unreasonable, and differs utterly from a search forstolen property. Compare State v. Griswold, 67 Conn. 290.
[1] See last note.
[2] Quincy's Mass. Rep. 51 and 395. A form for a writ ofassistance, prepared by Governor Hutchinson, is given in these Reports, on p.418.
[3] Mitchell v. Lemon, 34 Md. 176. See Ross v.Leggett, 61 Mich. 445.
he handcuffs or confines without necessity a person soarrested.[1]
SECTION III. THE PROHIBITION OF SLAVERY.
Historical. When the Constitution was adopted slaveryexisted in every State save one. The exception was the State of Massachusetts,in which it had been judicially held, that a provision in the Constitutionwhich declared that "all men are born free and equal, and have certain natural,essential, and unalienable rights; among which may be reckoned the right ofenjoying and defending their lives and liberties; that of acquiring,possessing, and protecting property: in fine, that of seeking and obtainingtheir safety and happiness," was inconsistent with the status ofslavery, and therefore entitled every man to his freedom.[2] It isnot certain that this provision was deliberately adopted in this sense, and itis probable that in other States it would not have been construed as conferringfreedom upon slaves; but neither the clause itself, nor the fact that a fewslaves obtained their liberty under it, attracted general attention at thetime, and the relation of slavery elsewhere was not sensibly affected.
But although slavery prevailed in twelve of the original States, theinterest in and feeling towards it in the northern and southern portions of thecountry were so radically different, that it became exceedingly difficult toagree upon the method in which it should be dealt with by the Constitution. Itsvery existence seemed to some persons a reproach to those who had just emergedfrom a successful struggle for their own liberties, and were now framing agovernment for their further protection; and the compromises upon the subjectwhich were finally agreed upon,
[1] Griffin v. Coleman, 4 H. & N. 265.
[2] Draper Civil War in America, vol. i. p. 317; Bancroft'sHist. of U. S., vol. x. p. 365. Slavery thus disappeared in Massachusetts verymuch as it did in England under the decision in Sommersett's Case, 20 StateTrials, 1; Lofft's Reports, 18; Broom, Const Law, 105
after much difficulty, would perhaps have been impossible, had it notbeen believed by many people in all sections that the institution could havebut a temporary existence, and must before many years be wholly done awaywith.[1] And it is a significant fact that the word "slave" or"slavery" does not appear in the Constitution, but servitude and theslave-trade are vaguely referred to under other designations, as if they werethings not to be more plainly mentioned in a freeconstitution.[2]
The foreign slave-trade was abolished in 1808, as soon as thecompromise in the Constitution on that subject would permit, and theexistence of slavery in the States did not become the subject of seriousnational controversy and disturbance until the application made in 1819 by theTerritory of Missouri for admission to the Union as a State. The immediateoccasions for excitement at that time were the provisions in the constitutionwhich was offered for acceptance, which not only recognized the existence ofslavery, but excluded from the legislature the power to abolish it, and, inorder to give additional security to the institution, required the adoption oflegislation to prohibit the admission of free negroes within the State. Thecontroversy, which for a time seemed to threaten the existence of the Union,was quieted by the admission of the State upon the fundamental condition thatno law should be passed "by which any citizen of either of the States in theUnion shall be excluded from the enjoyment of any of the privileges andimmunities to which such citizen is entitled under the Constitution of theUnited States," and by providing that "in all that territory ceded by France tothe United States under the name of Louisiana, which lies north of thirty-sixdegrees thirty minutes north latitude, excepting only such parts thereof as areincluded
[1] It was prohibited by common consent in the NorthwestTerritory in 1787.
[2] Everett's Orations, vol. iv. p. 390; Madison's Works,vol. iii p. 150; Frothingham, Rise of the Republic, 602.
within the limits [of Missouri], slavery and involuntary servitude,otherwise than in the punishment of crime whereof the party shall have beenduly convicted, shall be and is hereby expressly prohibited."[1]This compromise proved eventually unsatisfactory to both sections; the oneinsisting that citizens of any of the States were of right entitled to settlein the Territories with every species of property recognized by the state laws,and to be protected therein, while in the other the sentiment grew and becamedominant that the federal government ought to prohibit slavery in any territorysubject to its jurisdiction, and to discountenance it in every way. A new andfurther compromise became necessary in 1850, but this was followed, two yearslater, by the repeal of the prohibition of slavery north of the MissouriCompromise line, and in the rapidly settling Territory of Kansas armedconflicts took place between those who proposed to introduce slavery and thosewho determined to exclude it. During the decade beginning with 1850 theanimosity and estrangement between the sections increased, until in 1860 aPresident was chosen as an avowed opponent of any further extension of slaveterritory; and, taking this as conclusive evidence of a determination to makeunconstitutional war upon their interests, all the slaveholding States, withthe exception of Delaware, Maryland, Kentucky, and Missouri, announced theirwithdrawal from the Union, and in the two States last named there were alsoproceedings which assumed to do the same.
It had never been claimed by any considerable number of persons that, asmatter of constitutional law, the United States could interfere with slaverywithin the States. The whole subject of the domestic relations was leftexclusively by the Constitution to the States.[2] Only when slaveses-
[1] Benton, Thirty Years' View, ch. 2; Writings of Madison,iii. 156-199; Stephens, War between the States, ii. 131-175.
[2] Barry v. Mercein, 5 How. 103; Ex rel. Hobbs &Johnson, 1 Woods, 637.
caped from service and fled into other States did the power of theUnited States attach, and then it had exclusive jurisdiction to legislate fortheir return to their masters.[1] The point chiefly in dispute as aproposition of law was that Congress might prohibit or abolish slavery in theTerritories and in the District of Columbia. This was denied, as being opposedto the spirit of the constitutional compromises, and as establishingdifferences in right and privilege as between the citizens of the severalStates desiring to remove into such Territories or District with theirproperty, or having occasion to visit or pass through them and take theirservants. Some of the subjects of dispute were less mooted; and among thesewere the right of the United States to regulate and prohibit the traffic inslaves as between the States, and the right of colored persons to theprivileges of citizenship in the States. The latter was denied by the federalSupreme Court in a case decided in 1857, and the court, though that particularpoint disposed of the case, took occasion to go further, and to deny the powerof Congress to prohibit slavery in the Territories.[2] By those whodisputed this last position the opinion of the court was denounced as anunwarrantable attempt of the court to settle a political controversy by anex cathedra and extrajudicial opinion, and a new bitterness was broughtinto the existing excitement, much to the detriment of the proper influence andauthority of the court.
The war ended in the practical destruction of slavery in all the Stateswhich had been in rebellion. The President had declared emancipation byproclamation, and the armies had accomplished it as theyadvanced.[3] The provisional governments all recognized it, and whenthe reorganized States came with new constitutions for admission torepresentation in Congress, these contained an express prohibi-
[1] Prigg v. Pennsylvania, 16 Pet. 639.
[2] Scott v. Sandford, 19 How. 393. [3]Story on Const., 4th ed , § 1923.
tion of slavery. Still slavery existed in the border States, and inorder to abolish it there, as well as to give constitutional formality to thenational antislavery proceedings, the thirteenth amendment to the Constitutionwas proposed and adopted.
The Constitution. This amendment declares, adopting thelanguage of the Ordinance of 1787, that "neither slavery nor involuntaryservitude, except as a punishment for crime whereof the party shall have beenduly convicted, shall exist within the United States, or any place subject totheir jurisdiction." The word "slavery" in this country has acquired a somewhattechnical meaning, and is limited to that sort of servitude which has prevailedunder the state laws, namely, to servitude for life. The prohibition of slaverymerely might therefore seem to be limited to this sort of service, leaving thelegislative authorities at liberty to establish compulsory service for terms ofyears at discretion. Indeed, such servitude had existed in the early history ofthe country in cases of immigrants known as redemptioners, and of some others,and it would be easy to suggest exceptional cases in which excuses might existto enact laws for compulsory service, were the legislature so disposed. It wasdeemed important, therefore, that the prohibition should include, not slaverymerely, but all classes of involuntary servitude not imposed as apunishment.
Involuntary Servitude. The prohibition was notunimportant. Immediately following emancipation, laws were passed in some ofthe late slaveholding States for the compulsory apprenticeship of coloredpersons, on terms which were made applicable to them alone; and the provisionsof the indenture were such as evidently assumed the inferior and degradedcondition of this class of persons, and had a strong tendency to perpetuate it.In some States, also, colored persons were forbidden to engage in certainordinary employments except on payment of a large license-fee, or on producingto the authorities
satisfactory proof of good moral character. It was soon decided thatcompulsory apprenticeship under these partial and invidious laws wasinvoluntary servitude within the meaning of this amendment, and was thereforeforbidden.[1] It can scarcely be doubted that exclusion fromemployment may as effectually establish involuntary servitude as any use ofphysical force. In so far as one is excluded from entering upon commonvocations, the sphere of his choice is narrowed; and if the prohibition may bemade applicable to one or two employments, it may be extended to all but one,and at last the class discriminated against may be forced to serve in a menialemployment, and the nominal freedom then becomes degrading slavery. It istherefore a just conclusion, that any discrimination which narrows to oneclass, while leaving unrestricted to others, the freedom of choice inemployments, must be regarded as the establishment of involuntary servitude,and therefore forbidden.
But the amendment is not designed to interfere with such regulations ofservice in the domestic relations as were formerly admissible, including theservice of minors in apprenticeship under general laws. The involuntaryservitude forbidden was such as would not be tolerated by the free principlesof the common law, and not such as that code permitted in the case of dependentrelations.[2]
Enforcement Laws. The same amendment also provides that"Congress shall have power to enforce this article by appropriate legislation."Whether this provision has any importance must depend upon whether theprohibitory clause itself falls short of furnishing a com-
[1] Matter of Turner, 1 Abb. U. S. 84. It is held that thelegislature may make the breach of particular kind of contract, for example acontract to labor, an indictable offence, without violating the 13th Amendment.State v. Williams, 32 S. C. 123.
[2] In the case of Robertson v. Baldwin, 165 U. S.275, the court held that the amendment did not make illegal a statute requiringseamen to carry out the terms of their agreement, inasmuch as their employmentdemanded special regulations that hare long been recognized.
plete and sufficient protection. A constitutional provision issometimes, of itself, a complete law for the accomplishment of the purpose forwhich it was established, and sometimes it merely declares a principle whichwill be dormant until legislation is had to give it effect. When the former isthe case, the provision is sometimes spoken of as self-executing.
Nearly all the provisions of the Federal Constitution which conferlegislative or judicial power are inoperative for the practical purposesintended until legislation under them has given the means, and pointed out themethods, by which the powers shall be exercised. The case of the judicial poweris an apt illustration: it extends to controversies between citizens ofdifferent States, but, before it can be applied in actual suits, there must belegislation which prescribes what classes of these controversies the Federalcourts shall be permitted to take cognizance of. In like manner, the courts donot take cognizance of cases of bankruptcy until the jurisdiction is expresslyconferred by law, though the judicial power is extended to those cases by theConstitution itself.
With some provisions of the Constitution, however, and especially theprohibitory clauses, it is different. A prohibition of a power in the FederalConstitution defeats any attempt at its exercise, and any court, State orFederal, that may have cognizance of a case in which the power can come incontroversy, whether directly or incidentally, must take notice of, and actupon, the prohibition. Thus the mere declaration that "no bill of attaindershall be passed" has been found ample to protect all the people againstlegislative punishment, in cases not within their proper cognizance, though nolegislation has ever been had looking to its enforcement. The case of theprohibition of laws impairing the obligation of contracts is a still morestriking illustration of the force of certain provisions standingindependently. In a multitude of forms laws have appeared which were supposedto violate this provis-
ion, and in no case has a court, either State or national, had anydifficulty in dealing with it, or in declaring the law null if it was believedto be within the prohibition. Such a provision may well be declaredself-executing: it is a complete and perfect law in itself, which all courtsmust take notice of and enforce whenever a disregard of it comes to theirjudicial notice, without any statute requiring or expressly permitting it.
The prohibition of slavery and involuntary servitude is self-executingin this sense. All State laws then in existence which were inconsistent with itwere by its inherent force nullified, and all State legislation which shouldthereafter be attempted inconsistent with it was rendered null in itsincipiency. And while courts shall be in existence competent to issue the writof habeas corpus, and to administer common law remedies, it seemsdifficult to imagine a case of attempt at a violation or evasion of thisdeclaration of universal liberty that shall be wanting in appropriateredress.[1]
SECTION IV. THE GUARANTIES OP LIFE, LIBERTY, AND
EQUALITY.
The Constitution. It is declared by the fourteenth articleof the amendments, that "no State shall deprive any person of life, liberty, orproperty without due process. of law, nor deny to any person within itsjurisdiction the equal protection of the laws." This provision is directed atState action only, not at the action of individuals;[2] but,
[1] The Thirteenth Amendment of its own force abolishedslavery, and, unlike the Fourteenth, permits Congress primarily and directly tolegislate so as to meet all cases affected by it. But it relates only toslavery and servitude, not to unequal class legislation. The denial to negroesof equal admission into inns, cars, theatres, &c. with whites, is not aform of servitude. It is a civil injury. This amendment therefore, givesCongress no power to pass an act forbidding such denial. Civil Rights Cases,109 U. S. 3.
[2] Virginia v. Rives, 100 U. S. 313; Civil EightsCases, 109 U. S. 3
since the State must act through some of its departments or officers,under the term "State action" will be included the action of any department orinstrumentality representing the State. A State officer may therefore bepunished for excluding persons from jury service because of theirrace.[1] Congress has power to enforce these provisions. Its action,however, must be by way of correcting and overriding action taken by the State,and not by primary direct legislation as to the subject-matter.[2]The Fourteenth Amendment did not give the national government the generalauthority to regulate the relations between individuals. That power stillinheres in the State; but the national government can now protect theindividual against State action that would be subversive of fundamentalrights.
Due Process of Law. To a proper appreciation of thisguaranty it is important, first, to have correct understanding of the termsmade use of. The terms are general, and can only be understood when their knownand customary application is explained. This is especially the case with thephrase "due process of law." It has long been in use, among law writers and injudicial decisions, as implying correct and orderly proceedings, which are duebecause they observe all the securities for private right which are applicablein the particular case. In this sense it is synonymous with "law of the land,"as used in the famous twenty-ninth chapter of Magna Charta,
[1] Ex parte Virginia, 100 U. S. 339. If, however, thelegislative department of the State has furnished a proper remedy, the error ofthe judicial department in applying the law is not regarded as State action,and the State does not thereby deprive of property without due process of law.Arrowsmith v. Harmoning, 118 U. S. 194; In re Converse, 137 U. S. 624.See Davis v. Texas, 139 U. S. 651.
[2] Civil Rights Cases, 109 U. S. 3. See the statement,ante, p. 18. The first ten amendments are intended to protect theindividual against tyrannical action on the part of the national government.The Thirteenth and Fourteenth protect him against tyrannical action on the partof the State.
which declared that "no freeman shall be taken, or imprisoned, ordisseized, or outlawed, or banished, or anyways destroyed, nor will the Kingpass upon him or commit him to prison, unless by the judgment of his peers orthe law of the land." The identity of the two in meaning and purpose is nowwell settled.[1]
Admitting the identity of meaning, however, does not of itself bring usto an understanding of the purpose and effect of this guaranty. "What is thelaw of the land? It cannot be the common law merely. Statute law is in thehighest sense the law of the land; and the legislative department, created forthe very purpose of declaring from time to time what shall be the law,possesses ample powers to make, modify, and repeal, as public policy or thepublic need shall demand. Such being the case, the question presents itselfwhether anything may be made the law of the land, or may become due process oflaw, which the legislature under proper forms may see fit to enact? To solvethis question we have only to consider for a moment the purpose of the clauseunder examination. That purpose, as is apparent, was individual protection bylimitation upon power; and any construction which would leave with thelegislature this unbridled authority, as has been well said by an eminentjurist, ' would render the restriction absolutely nugatory, and turn this partof the Constitution into mere nonsense. The people would be made to say to thetwo Houses, You shall be vested with the legislative power of the State, but noone shall be disfranchised or deprived of the rights or privileges of a citizenunless you pass a statute for that purpose. In other words, you shall not dothe wrong, unless you choose to do it.'[2]
[1] Murray's Lessee v. Hoboken Land Co., 18 How. 272,276.
[2] Taylor v. Porter, 4 Hill (N. Y.), 140, 143. SeeHoke v. Henderson, 4 Dev. (N. C.) 1; Kinney v. Beverley, 1 Hen.& M. (Va.) 531; Norman v. Heist, 5 W. & S. (Penn.) 171; Janesv. Reynolds, 2 Tex. 250. See also Davidson v. New Orleans, 96 U.S. 97.
"To quote the words of an eminent advocate and statesman, 'Everythingwhich may pass under the forms of an enactment is not to be considered the lawof the land. If this were so, acts of attainder, bills of pains and penalties,acts of confiscation, acts reversing judgments, and acts directly transferringone man's estate to another, legislative judgments, decrees, and forfeitures inall possible forms, would be the law of the land. Such a strange constructionwould render constitutional provisions of the highest importance completelyinoperative and void. It would tend directly to establish the union of all thepowers in the legislature. There would be no general permanent law for courtsto administer or men to live under. The administration of justice would be anempty form, an idle ceremony. Judges would sit to execute legislative judgmentsand decrees, not to declare the law or administer the justice of the country.'And he gives us a definition of his own, in the concise and comprehensivelanguage of which he was so eminently the master: 'By the law of the land ismost clearly intended the general law, a law which hears before itcondemns, which proceeds upon inquiry, and renders judgment only after trial.The meaning is that every citizen shall hold his life, liberty, property, andimmunities under the protection of the general rules which governsociety.'[1] 'As to the words from Magna Charta,' says anothereminent jurist, ' after volumes spoken and written with a view to theirexposition, the good sense of mankind has at length settled down to this: thatthey were intended to secure the individual from the arbitrary exercise of thepowers of government, unrestrained by the established principles of privateright and distributive justice.'[2]
[1] Webster in Dartmouth College v. Woodward, 4 Wheat.518; Webster's Works, v. 487.
[2] Bank of Columbia v. Okely, 4 Wheat. 235. See alsodiscussion of the matter in Hagar v. Reclamation Dist., 111 U. S. 701;Dent v. West Virginia, 129 U. S. 114.
"Such have been the views of able jurists and statesmen; and thededuction is that life, liberty, and property are placed under the protectionof known and established principles which cannot be dispensed with eithergenerally or specially; either by courts or executive officers, or bylegislators themselves. Different principles are applicable in different cases,and require different forms and proceedings; in some they must be judicial; inothers the government may interfere directly, and ex parte; but dueprocess of law in each particular case means such an exertion of the powers ofgovernment as the settled maxims of law permit and sanction, and under suchsafeguards for the protection of individual rights as those maxims prescribefor the class of eases to which the one being dealt with belongs.
"When life and liberty are in question there must in every instance bejudicial proceedings; and that requirement implies an accusation, a hearingbefore an impartial tribunal, with proper jurisdiction, and a conviction andjudgment before the punishment can be inflicted."[1] Ingeneral, whatever the State establishes will be due process of law, so that itbe general and impartial in operation, and disregard no provision of Federal orState Constitution. Usually, however, an accused person will be entitled to thejudgment of his peers, unless that mode of trial is expressly dispensed with bylaw. There may be military tribunals for the trial of military offences, butthese must keep strictly within the limits of their legal authority. The commonlaw is over and above all tribunals administering any other code, and iswatchful and vigilant to keep them within the limits of their jurisdiction, andto punish their members if they usurp authority not belonging tothem.[2]
Whether a mode of procedure is due process depends
[1] Story on Const., 4th ed., §§ 1943-1946.
[2] Story on Const., § 1947; Cooley, Const. Lim., ch.11; Milligan, ex parte, 4 Wall. 2.
not upon considerations of form, but upon the principlesunderlying the process.[1] "Administrative and remedial process maybe changed from time to time, but only with due regard to the landmarksestablished for the protection of the citizen."[2] The States,therefore, may prescribe their own modes of proceeding and trial; theaccusation may be by grand jury or without one;[3] the trial, byjury or by court.[4] Proceedings to condemn land may be beforespecial tribunals, and notice of the proceedings may be given by publicationand not personally.[5] In tax proceedings the general systemestablished in this country for assessment and collection is dueprocess.[6] If a tax is specific, there is no need of notice and ahearing. If it is not, there must be notice and an opportunity for hearing, butan administrative board is a proper tribunal to conduct the hearing, and thelaw prescribing the time of
[1] "If the laws enacted by a State be within the legitimatesphere of legislative power, and their enforcement be attended with theobservance of those general rules which our system of jurisprudence prescribesfor the security of private rights, the harshness, injustice, and oppressivecharacter of such laws will not invalidate them as affecting life, liberty, orproperty without due process of law." Missouri Pac. Ry. Co. v. Humes,115 U. S. 512; Hallinger v. Davis, 146 U. S. 314; Marchant v.Penn. R. R. Co., 153 U. S. 380; Iowa Central Ry. Co. v. Iowa, 160 U. S.389.
[2] Cooley, Const. Lim., 6th ed., 334; Hurtado v.California, 110 U. S. 516; Montana Co. v. St. Louis Mining Co., 152 U.S. 160.
[3] Hurtado v. California, 110 U. S. 516, whereMatthews, J., uses this language: "It follows that any legal proceedingenforced by public authority, whether sanctioned by age and custom or newlydevised in the discretion of the legislative power, in furtherance of thegeneral public good, which regards and preserves those principles of libertyand justice, must be held to be due process."
[4] Walker v. Sauvinet, 92 U. S. 90. Summaryproceedings are due process in disbarring an attorney. Ex parte Wall, 107 U. S.265. Liquor selling may be punished as a contempt. Eilenbecker v. Dist.Ct, 134 U. S. 31.
[5] Pearson v. Yewdall, 95 U. S. 294; Huling v.Railway Co., 130 U. S. 559.
[6] Kelly v. Pittsburgh, 104 U. S. 78; FallbrookIrrigation Dist. v. Bradley, 164 U. S. 112,
its meetings is sufficient as notice. So it is due process if the tax islaid without notice, provided in judicial proceedings for its collection thetax-payers have an opportunity to be heard.[1]
Life and Liberty. These words are used in constitutionallaw as standing for and representing all personal rights whatsoever, exceptthose which are embraced in the idea of property.[2] Thecomprehensive word is "liberty"; and by this is meant, not merely freedom tomove about unrestrained, but such liberty of conduct, choice, and action as thelaw gives and protects.[3] Liberty is sometimes classified asnatural liberty, civil liberty, and political liberty. The first term iscommonly employed in a somewhat vague and indeterminate sense. One men willperhaps understand by it a liberty to enjoy all those rights which are usuallyregarded as fundamental, and which all governments should concede to all theirsubjects; but as it would be necessary to agree what these are, and theagreement could only be expressed in the form of law, the natural liberty, sofar as the law could take notice of it. would be found at last to resolveitself into such liberty as the government of every civilized people would beexpected by law to define and protect. Another by natural liberty
[1] McMillan v. Anderson, 95 U. S. 37; Davidsonv. New Orleans, 96 U. S. 97; Hagar v. Reclamation Disk, 111 U. S.701; Kentucky R. R. Tax Cases, 115 U. S. 321; Lent v. Tillson, 140 U. S.316. See also Paulsen v. Portland, 149 U. S. 30.
[2] In Chapter XVI. the principles of the law affecting theprotection of property are considered. In the following pages of this chapterthere is a discussion of the power and authority of the State to regulate forthe common well-being the conduct of an individual in certain relations, or inthe management and disposition of his property. It is to be noticed that,although we are considering the constitutional limitation that no person shallbe deprived of liberty or equality without due process, there is necessarily anallusion to the deprivation of property, because a regulation affecting the useof property may be of such a character that the value of property will bedestroyed by its enforcement.
[3] Allgeyer v. Louisiana, 165 U. S. 578.
may understand that freedom from restraint which exists before anygovernment has imposed its limitations. But as without government only a savagestate could exist, and any liberty would be only that of the wild beast, inwhich every man would have an equal right to take or hold whatever Ms agility,courage, strength, or cunning could secure, but no available right to more, itis obvious that a natural liberty of this sort would be inconsistent with anyvaluable right whatever. A right in any valuable sense can only be that whichthe law secures to its possessor, by requiring others to respect it, and toabstain from its violation. Rights, then, are the offspring of law; they areborn of legal restraints; by these restraints every man may be protected intheir enjoyment within the prescribed limits; without them possessions must beobtained and defended by cunning or force.
Civil Liberty and Political Liberty. Civil liberty may bedefined as that condition in which rights are established and protected, bymeans of such limitations and restraints upon the action of individual membersof the political society as are needed to prevent what would be injurious toother individuals, or prejudicial to the general welfare. This condition mayexist in any country, but its extent and securities must depend largely uponthe degree of political liberty which accompanies it. Political liberty may bedefined as consisting in an effectual participation of the people in the makingof the laws.[1]
Equality. The theory of our institutions is, that everyman's civil liberty is the same with that of others, that all men areequal before the law in rights, privileges, and legal capacities. Every person,however low, or degraded, or poor, is entitled to have his rights tested by thesame general laws which govern others. A supposed pauper is as much entitled toa hearing before he can be consigned to the workhouse, as is any other personwhose liberty is
[1] As to what is property, see post, Ch. XVI. sec.2.
threatened.[1] A supposed insane person cannot be committedto an asylum against his will without a judicial investigation;[2]nor can a man's property be seized and destroyed, or moved off as a nuisance,at the mere discretion or on the judgment of a ministerialofficer.[3] A State, therefore, has no business to bestow favors orto establish unjust discriminations. It nevertheless becomes important to thegeneral welfare that special privileges should be granted in some cases,because from the nature of the case there cannot be a general participation. Ifa national bank is essential, everybody cannot be a corporator; if a railroadis to be built, the franchise must necessarily be given into the hands of a fewpersons. In these and other cases falling within similar reasons, specialcharters may be granted without giving cause for complaint. But it is a justrule of construction that all grants of franchise and privilege are to bestrictly construed; the State will be presumed to have granted in plain termsall it intended to grant at all.[4]
This theory of equal protection of the laws is expressed and emphasizedin the Fourteenth Amendment. That amendment was designed primarily to protectthe emancipated slave in his rights as a free man, and to preventdiscrimination against him on account of his color.[5] For instance,no State can entirely exclude negroes from jury service because of their color,for such exclusion is a denial of the equal protection of thelaws.[6] But the
[1] Portland v. Bangor, 65 Me. 120.
[2] Van Deusen v. Newcomer, 40 Mich. 90.
[3] Fisher v. McGirr, 1 Gray (Mass.), 1; Darstv. People, 51 Ill. 286; State v. Paul, 5 R. I. 185; Millerv. Burch, 32 Tex. 208.
[4] Charles River Bridge v. Warren Bridge, 11 Pet.420, 544; Perrine p. Canal Co., 9 How. 172; Wheeling, &c. Bridge Co.v. Wheeling Bridge Co., 138 U. S. 287.
[5] Slaughter House Cases, 16 Wall. 36; Strauder v.West Virginia, 100 U. S. 303.
[6] Strauder v. West Virginia, 100 U. S. 303; Ex parteVirginia, Id. 339; Bush v. Kentucky, 107 U. S. 110. But a colored man isnot
amendment is not limited in its effect to colored persons All persons inthe United States are protected by its provisions, and the word "person" isheld to embrace resident aliens[1] andcorporations.[2]
The guaranty of equal protection is not to be understood, however, asrequiring that every person in the land shall possess precisely the same rightsand privileges as every other person. The amendment contemplates classes ofpersons, and the protection given by the law is to be deemed equal, if allpersons in the same class are treated alike under like circ*mstances andconditions both as to privileges conferred and liabilitiesimposed.[3] The classification must be based upon reasonablegrounds; it cannot be a mere arbitrary selection.[4] There may bedifferent courts of appeal for the hearing of the same kinds of causes tried indifferent parts of the same States.[5] Local assessments uponproperty specially benefited are valid, if equal within the classbenefited.[6] Railroads may be made a
entitled to a trial jury composed in part of negroes. Virginia v.Rives, 100 U. S. 313. See In re Wood, 140 U. S. 278; and also Gibson v.Mississippi, 162 U. S. 565; Williams v. Mississippi, 170 U. S. 213.
[1] Yick Wo v. Hopkins, 118 U. S. 356.
[2] Pembina Mining Co. v. Pennsylvania, 125 U. S. 181;Smyth v. Ames, 169 U. S. 466.
[3] Soon Hing v. Crowley, 113 U. S. 703; Hayesv. Missouri, 120 U. S. 68; Home Ins. Co. v. New York, 134 U. S.594; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181; Crowleyv. Christensen, 137 U. S. 86; Marchant v. Penn. R. R. Co., 153 U.S. 380; Jones v. Brim, 165 U. S. 180. "Class legislation discriminatingagainst some and favoring others is prohibited; but legislation which, incarrying out a public purpose, is limited in its application" is not within theprohibition of the amendment, "if within the sphere of its operations itaffects alike all persons similarly situated." Barbier v. Connolly, 113U. S. 27.
[4] Gulf, &c. Ry. v. Ellis, 165 U. S. 150.
[5] Missouri v. Lewis, 101 U. S. 22. So in murdertrials more challenges may be given to the State in cities than in countrydistricts. Hayes v. Missouri, 120 U. S. 68.
[6] Walston v. Nevin, 128 U. S. 578; Wurts v.Hoagland, 114 U. S.
606; Ford v. Delta, &c. Land Co., 164 U. S. 662.
special class for taxation[1] and otherpurposes.[2] The California Chinese Laundry Cases afford goodillustrations of the limits of the principle. An ordinance forbidding washingbetween certain hours in all public laundries within certain limits of a cityis good,[3] but one forbidding the carrying on the laundry businesswithin the city at all without the consent of certain officers is invalid, ifthe consent is arbitrarily withheld from all Chinamen and granted to otherpersons.[4]
The Police Power. The authority to establish, for theintercourse of the several members of the body politic with each other, thoserules of good conduct and good neighborhood which are calculated to prevent aconflict of rights and to insure to each the uninterrupted enjoyment of hisown, so far as is reasonably consistent with a corresponding enjoyment byothers, is usually spoken of as the authority or power of police. This is amost comprehensive branch of sovereignty, extending as it does to every person,every public and private right, everything in the nature of property, everyrelation in the State, in society, and in private life.[5] The useof the public highways is
[1] Kentucky R. R. Tax Cases, 115 U. S. 321. The same is trueof express companies. Pacific Ex. Co. v. Seibert, 142 U. S. 339; AdamsEx. Co. v. Ohio, 165 U. S. 194. And of telegraph companies. W. U. Tel.Co. v. Indiana, 165 U. S. 304. And the legislature may authorizedifferent modes of assessment for different properties, providing the rule ofassessment is the same. Winona, &c. Land Co. v. Minnesota, 159 U. S.526.
[2] Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512;Same v. Mackey, 127 U. S. 205. A requirement that railroads pay theexpense of a railroad commission does not deprive them of equality. Charlotte,&c. R. R. Co. v. Gibbes, 142 U. S. 386; New York v. Squire,145 U. S. 175.
[3] Barbier v. Connolly, 113 U. S. 27; Soon Hingv. Crowley, 113 U. S. 703.
[4] Yick Wo v. Hopkins, 118 U. S. 356. An ordinancerequiring all Chinese who remain in a city to live within a certain district isvoid. In re Lee Sing, 43 Fed. Rep. 359.
[5] Commonwealth v. Alger, 7 Cush. (Mass.) 53; Thorpev. Railroad Co., 27 Vt 140.
regulated under it; so are the public fisheries and mines, if any, andso are all the occupations of life. The domestic relations are formed,regulated, sustained, and dissolved under the rules it prescribes: the age atwhich a child becomes emancipated, the terms under which he may be allowed toapprentice himself or be forced by the public authorities to do so, and themeasure of independent action in the marriage relation, are all determined byits rules. These rules seldom raise any question of constitutional authority,but it is possible for them to be pushed to an extreme that shall deny justliberty.
The Fourteenth Amendment is held not to have taken from the States thepolice power reserved to them at the time of the adoption of theConstitution.[1] It does not deprive the States of the right topreserve order within their limits, to pass laws against crimes and punishoffenders, to regulate relations between individuals, to control for the publicgood the use of private property, to protect the health, life, and safety ofthe people, and, to that end, not only to enact suitable legislation, but todestroy private property that is dangerous to the well-being of the State. Inthe exercise of this power regard must be paid to the fundamental principles ofcivil liberty, and to processes that are adapted to preserve and secure civilrights; persons cannot arbitrarily be deprived of equal protection of the laws,or of life, liberty, or property, because the State purports to be exercisingthe police power.[2]
[1] Slaughter House Cases, 16 Wall. 36; Barbier v.Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623.
[2] "The legislature may not, under the guise of protectingthe public interests, arbitrarily interfere with private business, or imposeunusual and unnecessary restrictions upon lawful occupations. In other words,its determination as to what is a proper exercise of its police powers is notfinal or conclusive, but is subject to the supervision of the courts." Brown,J., in Lawton v. Steele, 152 U. S. 133, 137. See also In re Jacobs, 98N. Y. 98; Ex parte Whitwell, 98 Cal. 73; State v. Julow, 129 Mo. 163;People v. Gillson, 109 N. Y. 389; State v. Goodwill, 33 W. Va.179; Ex parte Keeler, 45 S. C. 537. "If, therefore, a statute purporting tohave been enacted to protect the public health,
And yet what is the due process, that must be observed, is necessarilydifferent under different circ*mstances. Sometimes summary proceedings aresufficient. The summary abatement of nuisances without judicial process orproceedings was well known to the common law prior to the adoption of theConstitution, and it cannot be supposed that the provisions of the FourteenthAmendment were intended to prevent such action.[1] And the exerciseof this power in the destruction of property prejudicial to the health, morals,or safety of the community, or in the prohibition of its use in a particularway, is very different from taking property for public use, and it is notnecessary that the State should make compensation therefor.[2]
Marriage. This is a relation formed by the consent of twopersons of opposite sexes under natural laws, and in a general sense the rightto form it is universal. But, as with every other conventional right,circ*mstances create exceptions, and general rules become necessary by means ofwhich the exceptions may be determined. The relation is the most important thatcan exist in the state; the well-being of society depends on its preservationin its purity, and it is of the highest importance that those marriages shouldbe prohibited that would be unfit, and that would tend to demoralize thecommunity, or in their pro-
the public morals, or the public safety, has no real or substantialrelation to those objects, or is a palpable invasion of rights secured by thefundamental law, it is the duty of the courts to so adjudge, and thereby giveeffect to the Constitution." Harlan, J., in Mugler v. Kansas, 123 U. S.623.
[1] Lawton v. Steele, 152 U. S. 133, where the courtheld that the fisheries of a State were properly protected by the exercise ofthe police power for the preservation of the food supply of the State, and thatthe summary destruction of fishing nets was not a deprivation without dueprocess. "While the legislature," said the court, "has no right arbitrarily todeclare that to be a nuisance which is clearly not so, a good deal must be leftto its discretion in that regard, and if the object to be accomplished isconducive to the public interests, it may exercise a large liberty in thechoice of means employed."
[2] See post, Ch. XVI. sec. 2.
geny to give to society a debased offspring. On these grounds themarriages of immature persons are prohibited, and also those of persons unsoundin mind. No doubt these regulations might go much farther than they do; andthey are supplemented by others which require certain forms, in order topublicity and certainty of evidence, and to guard against frauds. The legalright may therefore be expressed thus: every one has lawful right to marry, whopossesses the capacity and qualifications required by law, with a person of theopposite sex having the like capacity and qualifications, whose consent isobtained, and with whom the legal conditions to marriage are observed.
If the regulations apply universally and impartially, a question ofconstitutional law can scarcely arise upon them, for every independent Statemust be at liberty to regulate the domestic institutions of its people as shallseem most for the general welfare. A regulation, however, that should apply toone class exclusively, and which should not be based upon any distinctionbetween that class and others which could be important to the relation, must bewholly unwarranted and illegal. This principle is conceded, but it is not easyto determine what regulation would come within it. Many States prohibit theintermarriage of white persons and negroes; and since the Fourteenth Amendmentthis regulation has been contested as the offspring of race prejudice, asestablishing an unreasonable discrimination, and as depriving one class of theequal protection of the laws. Strictly, however, the regulation discriminatesno more against one race than against the other; it merely forbids marriagebetween the two. Nor can it be said so to narrow the privilege of marriage aspractically to impede or prevent it. Race prejudice no doubt has had somethingto do with establishing it, but it cannot be said to be so entirely withoutreason in its support as to be purely arbitrary. The general current ofjudicial decision is, that it deprives
a citizen of nothing that he can claim as a legal right, privilege, orexemption.[1]
Divorce. As with marriage, so with divorce; every Statewill establish such rules as seem best for the associated people. The followingrules of law may be considered settled: 1. That the legislature may laydown general rules of divorce, or it may prescribe a particular rule for aparticular case; in other words, may grant special divorces at will. This isthe rule in the absence of constitutional provisions on the subject, but in amajority of the States legislative divorces are now prohibited.
2. That the idea of vested rights, as it applies to property, has noapplication to the domestic relations. Therefore, one cannot complain that heis deprived of a vested right, though the rule prescribed under which hismarriage is dissolved seems to him unreasonable or unjust.[2]
3. That a mere legislative act, where legislative divorces are notprohibited, is due process of law for this purpose, and, as in the case of thepassage of any other law, its justice cannot become the subject of judicialinquiry.
4. That, when divorce is by law made a judicial proceeding, the right toa hearing is the same that exists in controversies over property rights, and isindefeasible. 5. No State can establish rules for divorce for any but its ownpeople, nor grant divorces to those not domiciled within its own limits. It isunder this principle that questions of constitutional right are likely toarise. The principle is clear, but attempts are often made to avoid it by goingfrom one jurisdiction, and obtaining a merely colorable residence in another,for the purposes of divorce. A divorce obtained under such circ*mstances iswholly unauthorized and void for want of authority in the State
[1] State v. Jackson, 80 Mo. 175; State v.Gibson, 36 Ind. 389; State v. Hairston, 63 N. C. 451; Lonas v.State, 3 Heisk. (Tenn.) 287; Ex parte Hobbs and Johnson, 1 Woods, 537; Statev. Tutty, 41 Fed. Rep. 753.
[2] Starr v. Pease, 8 Conn. 541; Crane v.Meginnis, 1 Gil] & J. (Md.) 463.
whose courts assume to grant it.[1] Nor can theconstitutional provision, that full faith and credit shall be given in eachState to the judicial proceedings, &c. of every other State, require such adivorce to be respected elsewhere, because it is not entitled to respect in theState in which it takes place.[2]
Education. That civil liberty would be exceedinglyimperfect that did not permit the citizen to educate himself in such properways as might be open to him, and to such extent as he should choose. TheState, however, usually makes provision for public education, establishingschools and laying down rules respecting those who shall be received into them.Formerly it was held that such a provision was in the nature of State bounty,and that the State might limit the bounty at discretion. Therefore coloredchildren might be excluded from the public schools.[3] But since theadoption of the Fourteenth Amendment this is unlawful,[4] though itseems to be admissible to require colored persons to attend separate schools,provided the schools are equal in advantages, and the same measure of privilegeand opportunity is afforded in each.[5]
Employment. The general rule is that every person suijuris has a right to choose his own employment, and to devote his labor toany calling, or at his option to hire it out in the service of others. This isone of the first and highest of all civil rights, and any restrictions thatdiscriminate against persons or classes are inadmissible. The right to residein a country implies the right to labor there, and therefore if by treaty witha foreign country its people
[1] Hanover v. Turner, 14 Mass. 227; Leith v.Leith, 39 N. H. 20; People v. Dawell, 25 Mich. 247; Hoffman v.Hoffman, 46 N. Y. 30; Keel v. Elder, 62 Penn. St. 308.
[2] Chase v. Chase, 6 Gray (Mass.), 157.
[3] Roberts v. Boston, 5 Cush. (Mass.) 198.
[4] Ward v. Flood, 48 Cal. 36.
[5] Cory v. Carter, 48 Ind. 327; State v.McCann, 21 Ohio St. 198; County Court v. Robinson, 27 Ala. 116; Peoplev. Gallagher, 93 N. Y. 438.
are given the liberty to reside in this, no State can have the right toforbid their employment, as this would be in conflict with the rights given bythe treaty.[1]
Employments are nevertheless subject to control under the State power ofpolice, and may be regulated in various ways, and to some extentrestricted.
1. The State may forbid certain classes of persons being employed inoccupations which their age, sex, or health renders unsuitable for them; aswomen and young children are sometimes forbidden to be employed in mines andcertain kinds of manufacture.
Some of the States have gone further, and passed acts regulating thehours of employment and other kindred measures. It cannot be said that there isagreement among the decisions of the State courts as to the constitutionalityof such legislation. The Supreme Court of the United States has held valid aState statute limiting the period of daily employment in certainoccupations,[2] and in rendering the decision has laid down whatseems to be a sound general principle. If the legislation in question is a merearbitrary interference with individual action or the right of private contract,or if it is evidently an unjust discrimination against a particular class, itdoubtless is invalid; but if it has for its purpose the protection of thehealth and safety of the citizens of the State, and if there is reasonableground for believing that it will conduce to that end, then it is within thecompetence of the State.
2. The State may require special training for some employments, andforbid persons engaging in them who have not proved their fitness onexamination, and been duly licensed. Such are the cases of practitioners of lawand
[1] Baker v. Portland, 5 Sawy. 566; Chapman v.Toy Long, 4 Sawy. 36; Soon Hing v. Crowley, 113 U. S. 703.
[2] Holden v. Hardy, 169 U. S. 366. See alsoCommonwealth v. Hamilton Mfg. Co., 120 Mass. 383; People v.Havnor, 149 N. Y. 195; Low v. Rees Printing Co., 41 Neb. 127; Ritchiev. People, 155 Ill. 98; Ex parte Jentsch, 112 Cal. 468. Compare Ex parteKuback, 85 Cal. 274; State v. Julow, 129 Mo. 163.
of medicine.[1] Similar regulations cannot be extended tomembers of the clerical profession, since it is a part of the religious freedomof the people that they should be left at liberty to listen to suchministrations as they please, and to select their own teachers, whether learnedor unlearned, wise or foolish.
Where an employment is in the nature of a privilege, as is the practiceof the law, it may be restricted, as suffrage is, to persons of the malesex.[2]
3. An occupation opposed to public policy, like that of gaming, may beprohibited altogether. And where one is peculiarly liable to abuses, it may besurrounded by all such securities as may seem calculated to prevent them. Thecase of the sale of intoxicating drinks is an illustration. Sometimes this isprohibited altogether,[3] because the evils are supposed to exceedany possible benefits; and the prohibition invades no principle ofconstitutional liberty.[4] If by such laws existing brewery propertyis rendered valueless, or is abated as a nuisance without compensation, theowner cannot complain of a lack of due process of law.[5] Sometimesthe business is only subjected to stringent regulations; such as that thedealer shall give evidence of good moral character, be approved by some localboard, give security not to sell to minors or habitual drunkards, &c.Recently statutes have gone much further, and made dealers responsible for allinjuries, direct and indirect, that may result from their sales, to thewife,
[1] If by such regulation one who has practised suchprofession for a time is prevented from continuing its pursuit, he is notdeprived of property without due process of law. Dent v. West Virginia,129 U. S. 114; Hawker v. New York, 170 U. S. 189.
[2] Bradwell v. State, 16 Wall. 130; Matter ofGoodell, 39 Wis. 232; Ex parte Spinney, 10 Nev. 323; Robinson's Case, 131 Mass.376.
[3] Beer Company v. Massachusetts, 97 U. S. Rep. 25;License Tax Cases, 5 Wall. 462.
[4] License Cases, 5 How. 504; Lincoln v. Smith, 27Vt. 328; Reynolds v. Geary, 26 Conn. 179; Ex parte Keeler, 45 S. C.537.
[5] Mugler v. Kansas, 123 U. S. 673; Kidd v.Pearson, 128 U. S. 1
child, parent, or employer of the purchaser; and it is held competentfor the State to impose this severe responsibility.[1] Some statuteseven make the owners of property on which liquors are sold by othersresponsible for the resulting injury. And upon the principle that the State mayrestrain or forbid the use of whatever articles it deems prejudicial to thepublic health or morals, statutes prohibiting the manufacture or sale ofoleomargarine have been sustained in spite of the FourteenthAmendment.[2]
Innkeepers and Common Carriers. In general every personmay make rules for the regulation of his own business, and may deal withwhomsoever he pleases, and refuse to deal with others. Exceptional rules havegrown up at the common law in respect to certain occupations, on account oftheir public nature. One of these is that of an innkeeper, whose obligation atthe common law is to receive all who come, and entertain them impartially,provided he has sufficient accommodations, and they come in an orderly anddecent manner, not intoxicated or subject to a contagious or infectiousdisease.[3] A common carrier is under similar obligations, and hassimilar rights. But he may discriminate in the accommodation he affords, solong as the distinctions are not wholly unreasonable; as some railroadcompanies do in furnishing different carriages for male and femalepassengers;[4] and it has been decided in some cases that thecarrier may discriminate in the same way between persons of different races,provided the accommodations afforded to all are equal.[5] No doubtState legislation might lawfully forbid such discriminations,[6] andCongress might do the same, so far as concerns
[1] Wilkerson v. Rust, 57 Ind. 172; State v.Ludington, 33 Wis. 107.
[2] Powell v. Pennsylvania, 127 U. S. 678.
[3] Howell v. Jackson, 6 C. & P. 723; Markhamv. Brown, 8 N. H. 523.
[4] Chicago, &c. R. R. Co. v. Williams, 55 Ill.185; Hutchinson on Carriers, § 542.
[5] Westchester, &c. R. R. Co. v. Miles, 55 Penn.St. 209; Green v. Bridgeton (U. S. Dist. Ct. Georgia), 9 Cent. Law Jour.206; Plessy v. Ferguson, 163 U. S. 537.
[6] De Cuir v. Benson, 27 La. Ann. 1.
the commerce that falls within its control;[1] but Congresscan have no power within the State to legislate for equal and impartialaccommodations in public inns, theatres, &c.[2]
Where the common carrier is a railroad company, existing and operatingits road under a grant of important State franchises, among which is that ofexercising the right of eminent domain for the acquisition of right of way,&c., and especially if by the charter the State has reserved the right ofalteration and repeal, the State may extend its regulations so far as to fixthe rates of transportation, and to compel submission to the constantsupervision of commissioners, whose duty it shall be to see that the laws areobeyed, and that absolute impartiality is observed.[3]
Regulation of Prices. Formerly it was common bylegislation to regulate wages, and the prices of merchandise, or whatever anyone person might have to dispose of to another. To some extent this was done inthis country in colonial days, but never generally; and the old laws on thesubject were unquestionably innovations on common right, and usurpations ofauthority. In some cases, however, the right to regulate charges is stillexercised, and in the following cases may be justified on principle:
1. Where the business is one the following of which is not a matter ofright, but is permitted by the State as a privilege or franchise. Under thishead may be classed the business of setting up lotteries, of giving shows,&c., of keeping billiard tables for hire, of selling intoxicating drinks,and of keeping a ferry or toll bridge.
2. When the State on public grounds renders to the business specialassistance by taxation, or under the eminent domain, as is done in the case ofrailroads.
[1] See Hall v. De Cuir, 95 U. S. 485.
[2] Civil Rights Cases, 109 U. S. 3, in which the purpose andforce of the new amendments to the Constitution are considered.
[3] Chicago, &c. R. R. Co. v. Iowa, 94 U. S. 155;Peik v. Chicago, &c. R. R. Co., 94 U. S. 164 See, further, casescited Ch. XVI. sec. 1, under "Regulation of Charter Contracts."
3. When, for the accommodation of the business, special privileges aregiven in the public streets, or exceptional use allowed of public property orpublic easem*nts, as is the case with hackmen, draymen, &c.
4. When exclusive privileges are granted in consideration of somespecial return to the public, or in order to secure something to the public nototherwise attainable.[1]
To these may be added:
5. The case of money loans. This is an exception difficult to defend onprinciple; but the power to regulate the rate of interest has been employedfrom the earliest days, and has been too long acquiesced in to be questionednow.
6. Those employments which are quasi public, or affected with apublic interest. It is a matter of some difficulty to determine with precisionwhen an occupation or business is so affected with a public interest that theState has the recognized right to regulate prices or rates. If one is permittedto take upon himself public employment with special privileges which only theState can grant, the right of the State to limit the prices charged forservices is plain enough; but the courts have gone much further than this inrecognizing the power of regulation in the State, and seem to have laid downthe broad doctrine that where private property is devoted to a public use it issubject to public regulation.[2] In the leading case of Munnv. Illinois,[3] where the question at issue was the right ofthe legislature to limit the price charged for elevating and storing grain inthe city of Chicago, the court sustained the power and placed it upon the sameground with the right to regulate the common carrier, the
[1] Slaughter House Cases, 16 Wall. 36; Water Works v.Schottler, 110 U. S. 347.
[2] When the owner of property devotes it to a use in whichthe public have an interest, he in effect grants to the public an interest insuch use, and must to the extent of that interest be controlled by the publicfor the common good. Zanesville v. Gas Light Co., 47 Ohio St. 1;approved in Budd v. New York, 143 U. S. 517, 543.
[3] 94 U. S. 113.
innkeeper, the wharfinger, or those engaged in like employments. Thebusiness in Chicago, because of local conditions, constituted a virtualmonopoly, but the court has upheld similar legislation in other States andwhere the circ*mstances were different. In the case of Brass v. Stoeserlegislation limiting the charges of elevators in North Dakota was held to bevalid.[1]
But this power of limiting prices is not itself without limits. "Underpretence of regulating fares and freights, the State cannot require a railroadto carry persons and property without reward; neither can it do that which inlaw amounts to a taking of private property for public use without justcompensation or without due process of law."[2] Although it is notthe province of the courts to enter upon the administrative task offraming a tariff of rates, it is their duty to grant relief against legislationwhich is so unreasonable as to destroy the value of property. In other words,the question of reasonableness is a judicial one.[3]
[1] "When it is once admitted, as it is admitted here, thatit is competent for the legislative power to control the business of elevatingand storing grain, whether carried on by individuals or associations, in citiesof one size and in some circ*mstances, it follows that such power may belegally exerted over the same business when carried on in smaller cities and inother circ*mstances." Brass v. Stoeser, 153 U. S. 391, 403. See alsoBudd v. New York, 143 U. S. 517. This right of regulation has beenupheld when applied to warehouses. Nash v. Page, 80 Ky. 539; Delaware,&c. R. R. Co. v. Central Stock Yard Co., 45 N. J. Eq. 50; totelephone companies, Central Un. Tel. Co. v. State, 118 Ind. 194; to apublic flour mill, State v. Edwards, 86 Me 102.
[2] Waite, C. J., in Railroad Commission Cases, 116 U. S.307, 331.
[3] St. Louis, &c. Ry. v. Gill, 156 U. S. 649:Covington, &c. Turnpike Co. v. Sandford, 164 U. S. 578; Reaganv. Farmers' Loan & Trust Co., 154 U. S. 362. "While rates for thetransportation of persons and property within the limits of a State areprimarily for its determination, the question whether they are so unreasonablylow as to deprive the carrier of its property without such compensation as theConstitution secures, and therefore without due process of law, cannot be soconclusively determined by the legislature of the State or by regulationsadopted under its authority that the matter may not become the subject ofjudicial inquiry." Smyth v. Ames, 169 U. S. 466.
Monopolies. Every exclusive privilege is to some extent aninfringement upon equal rights, and therefore ought to be capable of beingdefended on some ground that under the circ*mstances justifies it. Butmonopolies are undoubtedly admissible in some cases. An illustration is had inthe case of a patent, and another in the case of a copyright of a book orprint. Monopolies in all kinds of business were at one time common in England;but they were held to be illegal at length, the court declaring that "the soletrade of any mechanical artifice, or any other monopoly, is not only a damageand prejudice to those who exercise the same trade, but also to all othersubjects; for the end of all these monopolies is for the private gain of thepatentees."[1] It is certain that they cannot be granted in suchordinary vocations as can be left open to all to the common benefit; but theysometimes may be given as a matter of regulation, where the business is suchthat the public interest can be best subserved and protected by confiding it toone person or association of persons who shall manage it exclusively. Forexample, the exclusive right to supply water or gas-light in a city or part ofa city is sometimes granted,[2] or the exclusive right to layrailway tracks in its streets; and it has been held that a corporation may begiven the exclusive right to slaughter cattle for the markets of a city, itbeing required to do so impartially for all who apply, and at reasonablerates.[3] This obligation to serve the public impartially would seemto be an essential incident to any grant of a monopoly, since without it itwould be impossible to justify the grant on public grounds.
[1] Darcy v. Allain, 11 Rep. 84; Broom, Const. Law,500. See the act of Congress to protect commerce "against unlawful restraintsand monopolies." 26 Stat. at Large, 209 (July 2, 1890), and "anti-trust"legislation of the States.
[2] State v. Milwaukee Gas Co., 29 Wis. 454; NewOrleans Gas Co. v. La. Light Co., 115 U. S. 650; New Orleans Water Worksv. Rivers, Id. 674.
[3] Slaughter House Cases, 16 Wall. 36.
Combinations to effect monopolies are opposed to the public interest,and may be forbidden and punished. So combinations to prevent men beingemployed by others, through force or threats or any other means beyond theemployment of reason or solicitation, are illegal, and if successful will beactionable at the common law.[1]
Sumptuary Laws. Montesquieu thought sumptuary lawsessential to prevent extravagance in a republic,[2] but the notionhas long been exploded. They are plain invasions of individual liberty, andtherefore are forbidden. Every person must be allowed to judge of his owntable, and to dress as he pleases, subject to such police regulations as may beestablished for the preservation of public order and public morals. Women, forexample, may be forbidden to go about in the ordinary garb of men, as anecessary regulation against immorality and indecency. So every person must beallowed to deal with his property as he pleases, subject to reasonableregulations for the protection of others. He cannot, for example, be compelledagainst his will to improve his real estate.[3]
Suffrage. Participation in the suffrage is not of right,but it is granted by the State on a consideration of what is most for theinterest of the State. Nevertheless, the grant makes it a legal right until itis recalled, and it is protected by the law as property is. In the followingchapter the conditions of suffrage and of the holding of office will benoticed.
SECTION V. JURY TRIAL IN CIVIL CASKS. The Constitution. The seventh amendment provides that "in suits at common law, where thevalue in controversy shall exceed twenty dollars, the right of trial by
[1] Carew v. Rutherford, 106 Mass. 1; Old Dom. S. S.Co. v. McKenna, 30 Fed. Rep. 48. See Hornby v. Close, L. R. 2 Q.B. 153.
[2] Spirit of the Laws, b. 7.
[3] Gaines v. Buford, 1 Dana (Ky.), 479; Violettv. Violett, 2 Dana (Ky.), 323.
jury shall be preserved; and no fact tried by a jury shall be otherwisere examined in any court of the United States than according to the rules ofthe common law." The right of persons accused of crimes to be tried by jury issecured by another provision, and will be examined in another place.
"The trial by jury," it has been said, "is justly dear to the Americanpeople. It has always been an object of deep interest and solicitude, and everyencroachment upon it has been watched with greatjealousy."[l] The privilege in criminal cases has been lookedupon as a necessary part of the liberties of the people, and a sentimentattaches to it which will scarcely suffer its value to be questioned. EveryState constitution preserves it for suits in the State courts, and every new orrevised constitution repeats a guaranty of it. Even the common law requirementof unanimity in the verdict, which is of more than doubtful value, is retainedwithout inquiry or question, because it has existed from time immemorial.
The tribunal was almost peculiar to the common law courts, and issuesjoined in other courts went to a jury only under peculiar circ*mstances and inexceptional cases. It is important to know, however, that the form of theproceeding will not determine the right of the party to this method of trial.By the common law in this amendment "is meant what the Constitution denominatedin the third article ' law'; not merely suits which the common law recognizedamong its old and settled proceedings, but suits in which legal rights were tobe ascertained and: determined, in contradistinction to those where equitablerights alone were recognized and equitable remedies were administered; orwhere, as in the admiralty, a mixture of public law and of maritime law andequity was often found in the same suit."[2] It is immaterial,therefore, what changes may be made in the forms of action or pleadings, sincethe nature of the controversy and the
[1] Parsons v. Bedford, 3 Pet. 433, 446.[2] Ibid., 447.
right in dispute must determine the privilege, and not the form ofremedy provided.[1] But as the amendment only preserves the right,and does not extend it, the privilege is demandable of right only in thosecases in which the law gave it before.[2]
Waiver. In criminal cases at least in cases offelony the accused cannot waive this privilege, the jury being anecessary part of the tribunal that tries him;[3] nor can it be madeto depend on any condition, as, for example, upon an appeal from a court thatsits without a jury to a court which allows one.[4] But civil rightsin general may be waived, and a provision for civil cases that trial by juryshould be deemed waived unless demanded would seem unobjectionable. It has beenheld, also, that it sufficiently preserves the privilege to make provision bylaw for jury trial in an appellate court.[5]
Incidents. The peculiar characteristic of jury trial isthis: that the jury sit with the judge to try the facts of the controversy,receiving from him the law, and applying it, according as they find the factsto be, in a verdict which embodies both fact and law in a general conclusion.Or, at their option, the jury may find the facts specially, and report them tothe court, who will then determine what judgment the facts require. The courtis thus the trier of the law, and the jury are the triers of the facts; but thejudge may nevertheless rightfully express his opinion upon the facts to thejury, who will be at liberty to accept his
[1] Backus v. Lebanon, 11 N. H. 9; Tabor v.Cook, 15 Mich. 322; Mississippi Mills v. Cohn, 150 U. S. 202.
[2] Rhines v. Clark, 51 Penn. St. 96. As thegovernment has the right to prescribe conditions attending the importation ofgoods, an importer has no right to have the dutiable value of importsdetermined by a jury. Auffmordt v. Hedden, 137 U. S. 310.
[3] Cancemi v. People, 18 N. Y. 128. See casespost, Ch. XV. sec. 6; Cooley, Const. Lim , 6th ed., 390, 391.
[4] Matter of Dana, 7 Benedict, 1; Callan v. Wilson,127 U. S. 540. [5] Many cases are collected in Cooley, Const. Lim.,6th ed., 506,
note. Compare Green v. Briggs, 1 Curt. C. C. 311.
conclusions, or to disregard them, as their judgment shalldictate.[1] The jury have also the legal power to disregard theinstructions in matter of law, and to render a verdict which the instructionswould not warrant; but their doing so would be misconduct, which the judgeshould correct by granting a new trial.[2] But the judge will notgrant a new trial merely because his opinion upon disputed or uncertain factsdiffers from that of the jury;[3] though, if there were no evidencefairly tending to support their verdict, it will be erroneous not in point offact merely, but in law, and it will be the duty of the judge to set it aside,and. if he shall refuse to do so, then for a court of error to reverse it onthat ground.[4]
Rehearings. The rule that the facts shall not be otherwisere-examined than according to the rules of the common law, is essential to apreservation of the right. It could be of no importance that one should have ajury trial in the first instance, if his adversary might then remove the caseto another court to be tried by the judge himself. The finding of the jury uponthe facts when no error has intervened to influence it, and no fraud orsurprise, must be taken as conclusive. When it becomes necessary to re-examinethe facts tried by a jury, it must be done by another jury on a new trial. Anappellate court examines the facts only so far as may be necessary to ascertainwhether any error of law has been committed to the prejudice of the partycomplaining of the verdict;[5] but the trial court may, in itsdiscretion, grant a new trial where for any reason it is believed justice wasnot done by the first verdict.
The Seventh Amendment applies not only to cases
[1] Vicksburg, &c. R. R. Co. v. Putnam, 118 U. S.545; United States v. Reading R. R., 123 U. S. 113. This is true also incriminal cases in Federal courts. Simmons v. United States, 142 U. S.148.
[2] Wilkinson v. Greely, 1 Curt. C. C. 63.
[3] Stanley v. Whipple, 2 McLean, 35; Carr v.Gale, 3 Wood. & M. 38.
[4] Insurance Co. v. Rodel, 95 U. S. 232.
[5] Hickman v. Jones, 9 Wall. 197.
tried by jury in the Federal courts, but also to such as are tried byjury in the State courts and afterwards removed to the Federal Supreme Courtfor review under its appellate jurisdiction.[1]
[1] The Justices v. Murray, 9 Wall. 274; Chicago, B.,& Q. R. R. Co. v. Chicago, 166 U. S. 226.
CHAPTER XIV.
POLITICAL PRIVILEGES AND THEIR PROTECTIONS.
Political Privileges in General. In the main, politicalprivileges arise under state constitutions and laws, and are left to theirprotection. The few exceptions will be specified in the pages which follow.
SECTION I. CITIZENSHIP.
The Fourteenth Amendment. The fourteenth article of theamendments declares that "all persons born and naturalized in the UnitedStates, and subject to the jurisdiction thereof, are citizens of the UnitedStates and of the State wherein they reside." The importance of this provisionconnects itself with the earnest and violent controversy which for more thanten years previous to its adoption had agitated the country respecting thestatus of colored persons. Such persons, when not enslaved, had been consideredcitizens in one section of the Union; and whether they were or were notcitizens in the other States had been the subject of very little discussion orconsideration previous to the disturbing and exciting events of which therepeal of the restriction upon the extension of slavery, imposed by thelegislation known as the Missouri Compromise, was most important. In the casein which the federal Supreme Court expressed the opinion that that restrictionwas unconstitutional, it was decided that a colored person of the African race,whose ancestors were imported into this country and sold as slaves, could notbecome a member of the political community brought into existence by theConstitution of the United States, and
as such entitled to the rights, privileges, and immunities guaranteed bythat instrument to citizens, and that he could not, therefore, as a citizen,bring suits in the courts of the United States.[1] To this extentthe opinion of the court was authoritative, and was entitled to respect andobservance as such so long as it stood unreversed. A very large party in thecountry, however, was not satisfied with the reasoning of the court, butprotested against it; and when the government of the country, by the electionof 1860, passed into the hands of this party, the decision was wholly ignoredby the political departments of the government. It may perhaps be said that itwas ignored by the judicial department also, since persons of African descentwere admitted to practice in the federal courts on the same terms withothers.[2] But a mere tacit recognition of rights which are stilldisputed cannot be the most satisfactory settlement of a question so important.A ruling of the executive department under one administration may be set asideunder the next. Even an act of Congress might be repealed when another partysucceeded to power; or it might be adjudged unconstitutional by the courts, ashad been done with the Missouri Compromise. But as the solemn adjudicationalready had was still standing unreversed, it obviously constituted a mostserious and dangerous impediment to the peaceful and full enjoyment of rightswhich it denied. Under these circ*mstances the propriety and importance ofhaving the controversy settled in the most authoritative and conclusive modeare apparent.
Sow Citizenship is acquired. The fourteenth amendmentindicates the two methods in which one may become a citizen: first, bybirth in the United States;[3] and, second,
[1] Scott v. Sanford, 19 How. 393.
[2] This was without objection or discussion.
[3] This would include, also, birth abroad of children ofAmerican citizens temporarily residing or travelling in other countries. Rev.Stat. U. S., § 1993.
by naturalization therein. But a citizen by birth must not only be bornwithin the United States, but he must also be subject to the jurisdictionthereof; and by this is meant that full and complete jurisdiction to whichcitizens generally are subject, and not any qualified and partial jurisdiction,such as may consist with allegiance to some other government. The amendment,therefore, affirms the citizenship of children born within the United States ofall persons, of whatever race or color; but it does not affirm the citizenship"of children of foreign sovereigns or their ministers, or born on foreignpublic ships, or of enemies within and during a hostile occupation of part ofour territory."[l]
The aboriginal inhabitants of the country may be said to be in ananomalous condition, so long as they preserve their tribal relations andrecognize the headship of their chiefs, even when they reside within a State oran organized Territory, and owe a qualified allegiance to the government of theUnited States. It would obviously be inconsistent with the semi-independentcharacter of such a tribe, and with the obedience yielded by them to theirtribal head, that they should be vested with the complete rights, or, on theother hand, charged with the full responsibilities of citizens.[2]Congress has provided that separate allotments of land may be made to Indians,and that any Indian born within the territorial limits of the United States, towhom an allotment has been made, or who has voluntarily taken up his residenceseparate from any tribe and has adopted the habits of civilized life, is acitizen of the United States.[3]
Naturalization. Naturalization may be effected,first,
[1] United States v. Wong Kim Ark, 169 U. S. 649,693.
[2] Goodell v. Jackson, 20 Johns. (N. Y.) 693, 710;McKay v. Campbell, 2 Sawy. 118; Ex parte Reynolds, 5 Dill. 394.
[3] Act of 1887, 24 Stat at Large, 388; Sup. Rev. Stat., i.534. Compare Elk v. Wilkins, 112 U. S. 94, decided before this act waspassed; and see State v. Frazier, 28 Neb. 438.
by special laws which confer the privilege upon individuals named;second, by proceedings under general laws, whereby individuals severallyrenounce any foreign allegiance, and take upon themselves the obligations ofcitizenship; third, by the acquisition by the United States of foreignterritory, with its people, who thereby become citizens of the United States;fourth, by the general terms of an act of Congress providing for theadmission of a Territory as a State.[1] In the third manner, thepeople brought within the jurisdiction of the Union by the acquisition ofLouisiana, Florida, and portions of Mexico became citizens. The second methodabove named is that provided by acts of Congress; and the first and third mustalways be exceptional.
Loss of Citizenship. It is declared by act of Congressthat " expatriation is a natural and inherent right of all people,indispensable to the enjoyment of the rights of life, liberty, and the pursuitof happiness," and that "any declaration, instruction, opinion, order, ordecision of any officer of the United States, which denies, restricts, impairs,or questions the right of expatriation, is inconsistent with the fundamentalprinciples of the republic."[2] The judicial doctrine had previouslybeen, that no one could expatriate himself without express authority oflaw.[3] It is also provided by act of Congress, that desertion frommilitary or naval service, and going abroad to avoid being lawfully draftedinto the same, shall be deemed a voluntary relinquishment and forfeiture of therights of citizenship.[4]
[1] There may be in the Territory and participating in thepolitical activities persons who are not fully qualified citizens of the UnitedStates; and admission into the Union "involves the adoption as citizens of theUnited States of those whom Congress makes members of the political community."Boyd v. Thayer, 143 U. S. 135. See also Desbois's Case, 2 Martin,185.
[2] Rev. Stat. U. S., § 1999. [3] 2 Kent,48-50, and notes.
[4] Rev. Stat. U. S., §§ 1996-1998.
Citizenship in State and Union. The Fourteenth Amendmentrecognizes the fact that there is a citizenship of the United States, and alsoa citizenship of the several States, and that the two coexist in the samepersons. Both governments owe a duty of protection to the persons who aresubject to their jurisdiction, and both are entitled to the allegiance of suchpersons, and may punish breaches of this allegiance. It is impossible toconceive of such a status as citizenship of a State unconnected withcitizenship of the United States, or of citizenship of the United States withina State unconnected with citizenship of the State. The States cannotnaturalize, though they may confer special privileges upon aliens; and the actof naturalization by the United States is the grant of citizenship within theState where the naturalized person resides. It is only in the Territories andother places subject to their exclusive jurisdiction that there can be acitizenship of the United States unconnected with citizenship of aState.[1]
Abridgment of Privileges and Immunities. In a previouschapter, the section of the Constitution which entitles the citizens of eachState to all the privileges and immunities of citizens of the several Stateshas been examined, and some attempt made to describe those privileges andimmunities.[3] By the Fourteenth Amendment it is declared that "noState shall make or enforce any law which shall abridge the privileges orimmunities of citizens of the United States." The line of distinction betweenthe privileges and immunities of citizens of the United States and those ofcitizens of the several States must be traced along the boundary of theirrespective spheres of action, and the two classes must be as different in theirnature as
[1] Prentiss v. Brennan, 2 Blatch. 162. Theinhabitants of districts within a State over which the State has cededexclusive jurisdiction to the United States are not citizens of the State.Sinks v. Reese, 19 Ohio St 306; Commonwealth v. Clary, 8 Mass.72.
[2] See p. 206.
are the functions of their respective governments. A citizen of theUnited States as such has a right to participate in foreign and interstatecommerce, to have the benefit of the postal laws, to make use in common withothers of the navigable waters of the United States, and to pass from State toState and into foreign countries, because over all these subjects thejurisdiction of the United States extends, and they are covered by itslaws.[1] These, therefore, are among the privileges of citizens ofthe United States. So every citizen may petition the Federal authorities whichare set over him in respect to any matter of public concern; may examine thepublic records of the Federal jurisdiction; may visit the seat of governmentwithout being subjected to the payment of a tax for theprivilege;[2] may be purchaser of the public lands on the same termswith others; may participate in the government if he comes within theconditions of suffrage; and may demand the care and protection of the UnitedStates when on the high seas, or within the jurisdiction of a foreigngovernment.[3] The privileges suggest the immunities. Wherever it isthe duty of the United States to give protection to a citizen against any harm,inconvenience, or deprivation, the citizen is entitled to an immunity whichpertains to Federal citizenship.
One very plain and unquestionable immunity is exemption from any tax,burden, or imposition under State laws, as a condition to the enjoyment of anyright or privilege under the laws of the United States. A State thereforecannot require one to pay a tax as importer, under the laws of Congress, offoreign merchandise,[4] nor impose a tax upon travellers passing bypublic conveyances out of the State,[5] nor impose conditions to theright of citizens
[1] Story on Const., 4th ed., § 1937.
[2] Crandall v. Nevada, 6 Wall. 35.
[3] Slaughter House Cases, 16 Wall. 36,
[4] Ward v. Maryland, 12 Wall. 163. [5]Crandall v. Nevada, 6 Wall. 35.
of other States to sue its citizens in the Federal courts.[1]These instances sufficiently indicate the general rule. Whatever one may claimas of right under the Constitution and laws of the United States, by virtue ofhis citizenship, is a privilege of a citizen of the United States. Whatever theConstitution and laws of the United States entitle him to exemption from, hemay claim an immunity in respect to.[2] And such a right orprivilege is abridged whenever the State law interferes with any legitimateoperation of Federal authority which concerns his interest, whether it be anauthority actively exerted, or resting only in the express or implied commandor assurance of the Federal Constitution or laws. But the United States canneither grant nor secure to its citizens rights or privileges which are notexpressly or by reasonable implication placed under its jurisdiction; and allnot so placed are left to the exclusive protection of theStates.[3]
Necessity of the Provision. It may well be questionedwhether the provision just considered was necessary. It is certainly not clearthat there can exist any privilege or immunity of a citizen of the UnitedStates which, independent of the Fourteenth Amendment, is not beyond Statecontrol. The mere fact that the Constitution and laws of the United States havecreated a privilege, or given an immunity, is of itself sufficient to put itbeyond the reach of unfriendly legislation. The reason is obvious. State lawsoperate, and can only operate, within the sphere of State sovereignty; butprivileges and im-
[1] Insurance Co. v. Morse, 20 Wall. 445.
[2] Slaughter House Cases, 16 Wall. 36.
[3] United States v. Reese, 92 U. S. 214; UnitedStates v. Cruikshanks, 92 U. S. 542; Hall v. De Cuir, 95 U. S.485; Kirtland v. Hotchkiss, 100 U. S. 491; Presser v. Illinois,116 U. S. 252. It may be noted that this rule, now well settled, was laid downby a bare majority of the court in the Slaughter House Cases, supra,where four of the judges thought that the Fourteenth Amendment, properlyconstrued, changed the whole relation of the State and Federal governments asto the protection of the civil rights of the citizen.
munities of citizens of the United States arise within the sphere ofnational sovereignty, where in express terms the Constitution and laws of theUnited States are made paramount and supreme.[1] It is plain thatState laws cannot impair what they cannot reach. The right, for example, ofevery citizen to have the benefit of postal facilities, was as little open toquestion before the amendment as it is now. The law must have been then as itis now, namely, that State law is powerless to take away, restrain, orabridge that which the Federal authority has lawfully given. And it isimmaterial whether the privilege or immunity exists as an implication undersome provision of the Constitution or laws, or is expressly declared andestablished. The right to visit the national capital is nowhere expresslydeclared, but it results from the very nature of free government;[2]and for a State to undertake to deny or obstruct the right would as plainly bean intrusion on Federal sovereignty as would an attempt to encroach on the warpower, or the power over foreign commerce. Nevertheless this portion of theFourteenth Amendment has its importance in the fact that it embodies in expresslaw what before, to some extent, rested in implication merely; just as in theConstitution bills of attainder are forbidden, though without the prohibitionthey would undoubtedly be incompetent, because of the separation of legislativeand judicial authority which has been made by the American constitutions. Manyabuses of power are forbidden more than once in the Federal Constitution, underdifferent forms of expression.
SECTION II. SUFFRAGE AND ELECTIONS.
Basis of Suffrage. During the years succeeding the civilwar, while the agitation for an enlargement of civil
[l] Const., Art. VI. cl. 2; Ableman v. Booth, 21 How.506 [2] Crandall v. Nevada, 6 Wall. 35.
rights was violent, sentiment had a great and extraordinary influence onpublic affairs in America. It affected the discussion of political privileges,and considerable numbers insisted that suffrage was a natural right,corresponding to the right to life and liberty, and equally unlimited. Unlesssuch a doctrine is susceptible of being given practical effect, it must beutterly without substance; and so the courts have pronounced it.[1]In another place it has been shown that liberty itself must come from law, andnot in any institutional sense from nature;[2] and still less canthat come from nature in which all the people cannot possibly participate, andin respect to which, therefore, positive law becomes absolutely essential inorder to prescribe qualifications, the possession of which shall be the test ofright to enjoyment. A gift by nature must be absolute, and not contingent uponthe State coming forward afterwards with uncertain and changeable enactments toname conditions, and point out the persons who may enjoy the bounty. But thereis a further objection which is equally insurmountable: suffrage cannot be thenatural right of the individual, because it does not exist for the benefit ofthe individual, but for the benefit of the State itself.
Suffrage is participation in the government: in a representative countryit is taking part in the choice of officers, or in the decision of publicquestions. The purpose is to keep up the continuity of government, and topreserve and perpetuate public order and the protection of individual rights.The purpose is therefore public and general, not private and individual.Whatever suffrage is calculated to defeat the general purpose, whatever,if permitted, would tend to break up the government, to introduce anarchy, andto bring upon the people the innumerable mischiefs which would follow from thedestruction
[1] Spencer v. Board of Registration, 1 MacArthur (D.C.), 169; United States v. Anthony, 11 Blatch. 200.
[2] Ante, pp. 246, 247.
of public order, is not only inadmissible on reason, but isproved by the consequences which follow to be condemned by the great Author ofgovernment. To say that one whose participation in government would bringdanger to the State, and probable disaster, has nevertheless a right toparticipate, is not only folly in itself, but it is to set the individual abovethe State, and above all the manifold interests which are represented by it andbound up in its destiny. Such a doctrine is idle. Suffrage must come to theindividual, not as a right, but as a regulation which the State establishes asa means of perpetuating its own existence, and of insuring to the people theblessings it was intended to secure.[1]
Suffrage a State Privilege. The Constitution of the UnitedStates, except in particulars specified further on in this chapter, does not inany manner intermeddle with State and municipal elections, and they areconsequently in most respects left exclusively to State regulation and control.States establish for their own people the rules of suffrage, and it is in Stateconstitutions and laws, and in the decisions of State courts, that the rulesand principles are to be looked for which govern such elections. Suffrage isnever a necessary accompaniment of State citizenship, and the great majority ofcitizens are always excluded, and are represented by others at the polls.Sometimes, also, suffrage is given to those who are not citizens; as has beendone by a number of the States, in admitting persons to vote who, being aliens,have merely declared their intention to become citizens.
Congressional Elections. Under the Constitution each Stateelects such number of representatives as is apportioned to it by the laws ofCongress, and the qualifications of electors for such representatives are to bethe same as those for the most numerous branch of the Statelegislature.[2] The State is therefore left to fix thesequalifica-
[1] See Gougar v. Timberlake, 37 N. E. Rep. 644(Ind.).
[2] Const., Art. I. § 2.
tions without any restraint or limitation, except that which is imposedby the Fifteenth Amendment. The legislature of each State also prescribes thetimes, places, and manner of holding elections for senators and representativesin Congress; but Congress is also empowered to make or alter such regulations,except as to the places of choosing senators.[1] When theConstitution of the State and the legislation of Congress conflict respectingthe times and places when and where votes may be cast for the election ofrepresentatives in Congress, the legislation, under the provision of theConstitution last referred to, must control.[2] And Congress mayeither make entirely new regulations, or add to, alter, or modify theregulations made by the State,[3] and may also make such provisionsas are necessary to secure the fair and honest conduct of an election at whicha member of Congress is elected, as well as the preservation, proper return,and counting of votes, in short, whatever is necessary to an honestcertification of such election.[4] The fact that State officers areelected at the same time does not deprive such Federal legislation of itseffect.[5] But on the other hand Congress has no general authorityto regulate purely State elections, or to punish for illegal voting at suchtimes.[6] And the State may punish illegal voting for Presidentialelectors, as they are not Federal officers.[7]
Qualifications of Electors. As elections are the meanswhereby the people express their sovereign will, the quali-
[1] Const., Art. I. § 4.
[2] Baldwin v. Trowbridge, 2 Bartlett, 46.[3] Ex parte Siebold, 100 U. S. 371.
[4] In re Coy, 127 U. S. 731; Ex parte Yarbrough, 110 U. S.651; Connors v. United States, 158 U. S. 408.
[5] Ibid.
[6] United States v. Reese, 92 U. S. 214; Blitzv. United States, 153 U. S. 308, 314. Concerning the power of Congressunder the Fifteenth Amendment see post, pp. 290-294. Perjury in givingtestimony in the case of a contested Congressional election is not an offenceagainst & State law. In re Loney, 134 U. S. 372.
[7] In re Green, 134 U. S. 377.
fications for taking part therein are usually prescribed byconstitution, that they may not be subject to continual changes from year toyear by legislators of differing views. When the qualifications are once fixedby the constitution, it is not in the power of the legislature to add to ormodify them, but they must remain until the constitution is revised oramended,[1] and whoever claims the right must show that he comeswithin the intent of the existing law.[2] A provision giving theright generally to persons possessing certain qualifications must be understoodas excluding idiots and insane persons, even though not expressly mentioningthem as exceptions, since these persons are incapable of exercising legalvolition.[3]
It is competent to provide by law for a forfeiture of the right toparticipate in elections, as a punishment for conduct which the law forbids;but such punishment can only be imposed after trial and conviction. Theelection judges cannot be authorized for supposed guilt to inflict theforfeiture.[4]
Regulations of the Franchise. Even where qualificationsare fixed by the constitution, it is competent for the legislature to prescribeby law such conditions to the exercise of the elective franchise as shall seemreasonable to protect the privilege, and to prevent impositions and otherfrauds; and also to prescribe all proper regulations for receiving andcanvassing the votes. One very proper
[1] State v. Williams, 5 Wis. 308; Monroe v.Collins, 17 Ohio St. 655; Rison v. Farr, 24 Ark. 161; Randolph v.Good, 3 W. Va. 551; St. Joseph, &c. R. R. Co. v. Buchanan Co. Court,39 Mo. 485; Green v. Shumway, 39 N. Y. 418; State v. Baker, 38Wis. 71; Quinn v. State, 35 Ind. 485; People v. Canaday, 73 N. C.198: Brown v. Grover, 6 Bush (Ky.), 1; Davies v. McKeeby, 5 Nev.369; McCafferty v. Guyer, 57 Penn St. 109.
[2] Minor v. Happersett, 21 Wall 162.
[3] Cushing, Legislative Assemblies, §§ 24, 27;Cooley, Const. Lim., 6th ed., 753; McCrary, Am. Law of Elections, §§4, 50, 73.
[4] Huber v. Reilly, 53 Penn. St. 112; State v.Symonds, 57 Me. 148; Burkett v. McCarty, 10 Bush (Ky.), 758. CompareDelano v. Bartlett, 2 Bartlett, 168.
condition is, that every voter, previous to the day of election, shallcause his name to be entered on a registry of voters, which is provided for asa guide to the judges of election in receiving the votes, and that no ballotsshall be received from those not registered. The power of the legislature torequire such a registry is settled,[1] and the voter has no causefor complaint if he fails to register. If a board of registration neglects orrefuses to perform its duty as required by law, the members may be compelled todo so by mandamus, or they may be punished as public offenders; but theirmisconduct cannot entitle unregistered electors to vote unless by law provisionis made for such cases.[2] If inspectors of election, where theyhave power to determine the voter's qualification, reject a vote, they may beliable civilly[3] as well as criminally. But, if the statuteprovides that they shall receive the vote, if the voter swears to hisqualifications, they can exercise no judgment in the matter but must receivethe vote.[4]
Secrecy in Voting. Election by ballot is now practicallyuniversal in this country, and representatives in Congress are required to bechosen by that method.[5] The ballot is provided because it isbelieved most effectually to protect the elector against improper influences,as it enables him to exercise the right without any person, even
[1] Hyde v. Brush, 34 Conn. 454; Cusick's Appeal, 136Penn. St. 459; McCrary, Am. Law of Elections, §§ 7-10; Cooley, Const.Lim., 6th ed., 757. But the provisions as to registration must be reasonable.Laws allowing but a short time within which to register or closing the listssome days before election have been held unreasonable. Daggett v.Hudson, 43 Ohio St. 548; State v. Corner, 22 Neb. 265; Owensborov. Hickman, 90 Ky. 629; Morris v. Powell, 125 Ind. 281; Atty.Gen. v. Detroit, 78 Mich. 545. In People v. Hoffman, 116 Ill.587, a law cloging registration three weeks before election was held good.
[2] People v. Kopplekom, 16 Mich. 342; Zeilerv. Chapman, 54 Mo 502; Nefzger v. Railroad Co., 36 Iowa, 642.
[3] Ante, p. 174.
[4] Spragins v. Houghton, 3 Ill. 377; People v.Bell, 119 N. Y. 175. [5] Rev. Stat. U. S, § 27.
the officers of election, having a knowledge for whom his suffrage isgiven. To fully protect the constitutional right to secrecy as against theimportunities, browbeatings, or inquisitive intermeddling of others, it isprovided by law in some States that the ballots shall be written or printed onwhite paper without any marks or figures thereon to distinguish one ballot fromanother; and where such a regulation exists, all ballots not in conformity withit when cast are to be rejected, and all contrivances of political managers orelection officials to evade it are illegal.[1]
Notice of Elections. Notices of the times and places whenand where elections are appointed to be held are generally required to be givenby some public officer, in some method designated by law. If the election to beheld is exceptional or special, the failure to give this notice must be fatal,even should there be a general attendance of electors, since every one has thesame right to participate with all others. But if the election is one which isprovided for by public law, and the law itself gives all the particulars oftime and place, the failure to give the notice will not defeat the election,since every one is supposed to take notice of what is in thelaw.[2]
Ballots, Sufficiency of. In elections by ballot, the votermust take care that his ballot shall be complete in
[1] Williams v. Stein, 38 Ind. 89; Opinions of Judges,45 Me. 602; Brisbin v. Cleary, 26 Minn. 107. See cases in Cooley, Const.Lim., 6th ed., 761. The recent State laws, based on the Australian system ofvoting, which provide for the furnishing by the State of an official ballotwhich shall alone be used, and for the seclusion of the voter while be marks orotherwise prepares this ballot for deposit in the box, are valid. CommonCouncil v. Rush, 82 Mich. 532; Talcott v. Philbrick, 59 Conn.472; Cole v. Tucker, 164 Mass. 486. Compare Moyer v. Van deVanter, 12 Wash. 377. A full discussion of some typical provisions of such lawsin State v. Walsh, 62 Conn. 260; Parvin v. Weinberg, 130 Ind.561.
[2] People v. Cowles, 13 N. Y.350; People v.Hartwell, 12 Mich. 508; State v. Orvis, 20 Wis. 235; People v.Brenahm, 3 Gal. 477 Compare Foster v. Scarff, 15 Ohio St. 532.
itself, so that it shall express his intention without resort toextraneous evidence for explanation of apparent ambiguities. The general rulesof law do not permit a written instrument to be varied or added to by parol;and in case of ballots, the parol evidence would be specially objectionable anddangerous, since public interests of the highest importance depend upon theelections, and the inducements to corruption and perjury would sometimes beenormous. Therefore, if one places upon his ballot two names for one officewhen only one is to be voted for, the ballot so far as concerns that officemust be rejected for ambiguity, from the obvious impossibility of determiningthe voter's intention without resorting to parol explanation.[1] So,if the voter puts one name upon his ballot where he intends to put another, hewill not be allowed to explain the mistake, but it must be counted as he wroteand deposited it.[2] But the fact that a name is abbreviated shouldnot prevent its being counted where the intent is clear.[3] Neithershould the fact that the office is not described with precise accuracy, if thedescription is such that no doubt concerning it can exist.[4] And inany case where a doubt in applying a ballot perfect in itself is raised uponextraneous facts, it may be removed by showing all such facts surrounding thecanvass and election as would tend to throw light upon it. For example, if twopersons of the same name reside within a certain election district, and ballotsare cast having that name upon them for a specific office, it may be shown, inorder to enable the
[1] People v. Seaman, 5 Denio (N. Y.), 409. ComparePeople v. Saxton, 22 N. Y. 309:
[2] Hart v. Evans, 8 Penn. St. 13; Fenton v.Scott, 17 Oreg. 189.
[3] People v. Ferguson, 8 Cow. (N. Y.) 102; AttorneyGeneral v. Ely, 4 Wis. 429; State v. Gates, 43 Conn. 533;Talkington v. Lurner, 71 Ill. 234. In Wimmer v. Eaton, 72 Iowa,374, ballots for "F. W." were counted for "E. W." who was a candidate, therebeing no one eligible named "F. W." who was running. Compare People v.Cicotte, 16 Mich. 283; Kreitz v. Behrensmeyer, 125 Ill. 141.
[4] People v. Matteson, 17 Ill. 167; People v.McManus, 34 Barb. 620
ballots to be applied, that one of these persons was publicly known andunderstood to be a candidate for the office specified, and the other wasnot.[1]
Irregularities in Elections. All the rules of lawgoverning elections should aim at obtaining the full and free expression of theviews of those entitled to vote; and whenever there is reasonable ground forbelieving that this has been had, a ballot should not be set aside because ofmere irregularities. The following are illustrations. The erroneous rejectionby the judges of election of the ballot offered by a qualifiedvoter;[2] the accidental substitution of another book for the Biblein the administration of an oath; the holding of the election by persons whowere not officers de jure, but were officers de facto, and actedas such in good faith; the neglect of the judges to appoint clerks of theelection; the closing at sundown of the outer door of the room in which theelection was held, and then permitting the electors within the room to vote, itnot appearing that illegal votes were received or legal excluded; the failureof the judges and clerks to take the prescribed oath of office, they beingnevertheless de facto officers;[3] the neglect of the judgesto certify the result within the time fixed by statute;[4] or anyother irregularity which does not cast uncertainty on the result, or affect theinterests of the party complaining of it.[5] But
[1] People v. Cook, 8 N. Y. 67.
[2] Newcum v. Kirtley, 13 B. Monroe (Ky.), 515.
[3] People v. Cook, 8 N. Y. 67; Taylor v.Taylor, 10 Minn. 112; Day v. Kent, 1 Oreg. 123. This doctrine has notalways been recognized in Congress; but the cases of Barnes v. Adams (2Bartlett, 760) and Eggleston v. Strader (2 Bartlett, 897) in the Houseof Representatives (1870) support it in approving careful reports of thecommittee
on elections.
[4] Ex parte Heath, 3 Hill, 42; People v. Sackett, 14 Mich.320.
[5] People v. Cook, 8 N. Y. 67; Lanier v.Gallatas, 13 La. An. 175; Dobyns v. Weadon, 50 Ind. 298; Bourlandv. Hildreth, 26 Cal. 161; McKinney v. O'Connor, 26 Tex. 5; PikeCo. v. Barnes, 51 Miss. 305; Wheelock Election Case, 82 Penn. St. 297;Loomis v. Jackson, 6 W. Va. 613; Chicago v. People, 80 Ill. 496;Reid v. Julian, House of Rep., 2 Bartlett, 822.
the following are not mere irregularities. The submission of a questionto vote in such manner as to exclude a portion of those who are entitled totake part in the election,[1] holding the polls open but fortyminutes when the law requires three hours,[2] and holding it at adifferent time or different place from that fixed by law,[3] thougheven in these cases an election may be supported if it is made to appear thatno one lost his vote as a consequence of the law being disobeyed.[4]When an election is contested because of the reception of illegal votes, theeffect which shall be allowed to that circ*mstance must depend very much uponother facts. If the judges have erroneously, but in good faith, receivedincompetent votes, the election will not in general be defeatedthereby;[5] but when it can be shown for whom they were cast, theywill be deducted from the count, and the case determined withoutthem.[6] If, however, they have been received fraudulently, and thewhole number is so great that the entire poll is tainted with the illegality,the election in that precinct may be set aside altogether, as has frequentlybeen done in Congress.[7] If a legal vote is wrongfully rejected, itcannot be counted on any showing of the intent to cast it
[1] Attorney General v. Supervisors, 11 Mich. 63 SeePeople v. Salomon, 46 Ill. 415; Fort Dodge v. District Township,17 Iowa, 85; Barry v. Lauck, 5 Cold. (Tenn.) 588.
[2] State v. Wollem, 37 Iowa, 131; Tebbe v.Smith, 108 Cal. 101.
[3] Dickey v. Hurlburt, 5 Cal. 343; Walker v.Sanford, 78 Ga. 165; Williams v. Potter, 114 Ill. 628.
[4] Dale v. Irwin, 78 Ill. 170; Steele v.Calhoun, 61 Mass. 556; Farrington v. Turner, 53 Mich. 27; Simonsv. People, 119 Ill 617.
5 Ex parte Murphy, 7 Cow (N. Y.) 153; Judkins v. Hill, 50 N. H.140; Tarbox v. Sughrue, 36 Kans,. 225.
[6] State v. Hilmantel, 21 Wis. 566; Harbaughv. Cicotte, 33 Mich. 241.
[7] Howard v. Cooper, 1 Bartlett, 275; Dodge v.Brooks, 2 Bartlett, 78; Myers v. Moffett, 2 Bartlett, 564; Switzerv. Dyer, 2 Bartlett, 777. Sometimes the return of the election has beenrejected, and only those votes counted which can be shown to have been legallycast. Washburn v. Voorhies, 2 Bartlett, 54. Compare Chadwick v.Melvin, Brightly's Election Cases, 251.
for a particular candidate;[l] though if the number rejectedis so great that they might possibly have changed the result, the election maybe declared void for that reason.[2]
Eligibility to Office. The Constitution and laws of theUnited States determine what shall be the qualifications for Federal offices,and State constitutions and laws can neither add to nor take away from them.This has been repeatedly decided in Congress, in the case of persons elected toseats therein when provisions in the State constitution, if valid, would renderthem ineligible.[3] When the law is silent respecting qualificationsto office, it must be understood that electors are eligible, but noothers.[4] The question has often been made, what shall be the rulewhen an ineligible person receives a sufficient number of votes to elect him ifhe were qualified; and the authorities are greatly divided on the subject. InEngland under such circ*mstances the person receiving the next highest numberof votes will be declared elected, especially if the ineligibility of theleading candidate was notorious;[5] and some of the American Statesfollow this course.[6] The decided weight of authority in thiscountry, however, is that in such case the election has failed; the votes castfor the disqualified person, though not electing him, being enough to show thatthe people have not intended to choose any
[1] Renner v. Bennett, 21 Ohio St 431, 450.
[2] Renner v. Bennett, 21 Ohio St. 431. In Congress,votes wrongfully rejected have generally been counted on evidence being givento show how the electors intended to cast them. See Delano v. Morgan, 2Bartlett, 168. It would certainly be very proper to provide by statute thatvotes offered and rejected should be marked and preserved, in order that theymight be counted in case it should afterwards appear that there was error inrejecting them.
[3] Taney v. Marshall, 1 Bartlett, 167; Trumbull'sCase, Ibid. 619.
[4] State v. Smith, 14 Wis. 497.
[5] French v. Nolan, 2 Moak, 711; McCrary, Am. Law ofElections, § 231; Cooley, Const. Lim., 6th ed., 780.
[6] Gulick v. New, 14 Ind. 93; Price v. Baker,41 Ind. 570; Hatcheson v. Tilder. 4 H. & McH. (Md ) 279
other person.[1] Such has been the conclusion of both housesof Congress.[2] The forfeiture of eligibility to office, it issometimes declared, shall follow some specified breach of the law; such, forexample, as the giving or receiving a bribe, the sending or accepting achallenge to fight a duel, &c. This renders the act which is thus condemneda public offence, and the disqualification becomes a punishment. Thedetermination whether the offence has been committed involves an inquiry intothe law and the facts, and this, being in its essence a judicial inquiry, mustbe had before a judicial tribunal, and the disqualification regularly adjudgedbefore the punishment can be inflicted. The determination cannot be left to acanvassing board, or to mere ministerial officers.[3]
Freedom of Elections. An election fails in its legitimatepurpose when the electors are subjected to such influences that they abstainfrom depositing their ballots at all, or give them unintelligently, or fromimproper and corrupt motives, or under the influence of fear or compulsion.When any considerable number of voters are kept from the polls throughreasonable fear of personal injury from riotous mobs, or from abuse of legalauthority, the elec-
[1] Decisions to that effect in Wisconsin, Rhode Island,Pennsylvania, Missouri, Michigan, Maine, Louisiana, California, Mississippi,and Georgia are given in Cooley's Const. Lim., 6th ed., 780. And see Stephensv. Wyatt, 17 B. Monr. (Ky.) 547. If the disability merely concerns theholding of the office and is not a disability to be elected, it is enough ifthe disability is removed before entering upon the term. State v.Trumpf, 50 Wis. 103; Privett v. Bickford, 26 Kans. 52. Where an alienwho has not declared his intention to become a citizen is not an elector andonly electors are eligible, such alien cannot hold office by declaring hisintention after his election. State v. Sullivan, 67 Minn 379.Contra, Smith v. Moore, 90 Ind. 294.
[2] Cushing, Leg. Assem., 66. The subject was fully andcarefully considered in the contested election case of Smith v. Brown,in the House of Representatives (1868), and the doctrine of the text has beenacted upon repeatedly since.
[3] Commonwealth v. Jones, 10 Bush (Ky.), 725,approving In re Dorsey, 7 Port. (Ala.) 293, and Huber v. Reily, 53 Penn.St. 112. See Ex parte Garland, 4 Wall. 333.
tion should be deemed altogether void. Congressional elections haveoften been declared void because of intimidation, when there was reason tobelieve that electors sufficient in number to have changed the result weredeterred from depositing their ballots through fear or actual violence. Acareful writer of much experience gives the following rules as deductions fromthe decisions in Congress:
"1. If the violence and intimidation have been so extensive and generalas to render it certain that there has been no fair and free expression by thegreat body of electors, then the election must be set aside, notwithstandingthe fact that in some of the precincts or counties there was a peaceable andfair election.
"2. When there has been an election embracing a number of counties orprecincts in which there have been violence and intimidation, enough to excludefrom the count one or more precincts or voting places, but not enough todestroy the freedom and fairness of the election as a whole, such violence willnot invalidate the election, nor affect the results of it," unless it be shownaffirmatively that but for it the results would have been different.
"3. The question must be, Has the great body of the electors had anopportunity to express their choice through the medium of the ballot andaccording to law? and this fact must be decided in the light of all the factsand circ*mstances shown in the evidence."[1]
The presence of a military force at or near the polls of an election,commanded by those who favor a particular candidate or party, is almost ofnecessity a menace to the electors, and an interference with them in givingtheir suffrages freely,[2] and in England and some of the States ofthe Union even the training of the militia on election day is forbidden by law.It is usual, also, to forbid the service
[1] McCrary, Am. Law of Elections, § 429. See Huntv. Sheldon, House of Rep. (1869).
[2] McCrary, Am. Law of Elections, §§ 418, 421.
of legal process on election day, lest it be employed as a measure ofintimidation to voters who are in debt. Betting upon the results of electionsis illegal at common law, because it tends to bring improper influences to bearupon the results. So are all contracts which have the sametendency.[1] A vote may properly be rejected in a contest over anelection when it appears that it was obtained for a valuableconsideration.[2] Treating electors to intoxicating drinks on theday of election is very commonly prohibited, not only because it is a speciesof bribery, but also because it tends to unfit the voters for the intelligentdischarge of their duties.
Canvass and Return of Votes. Ballots cast are to becanvassed in the various electoral districts or precincts, and a report made ofthe results. If the officers to be chosen are for that district only, thejudges of the election are usually empowered to decide who is elected; but ifthey are for a division of the State embracing several election districts, thelocal judges will be required to make returns to a canvassing board, authorizedto canvass the returns for the whole division, and to declare the election asit appears upon such returns. The general rule in the several States is thatthese division or district canvassers act in the performance of their duties ina ministerial way only; that is, that they are to receive the returns that aretransmitted to them in apparent conformity to the law as correct, and they arenot to assume the judicial function of going behind them to inquire into facts,but must leave any allegation of error, mistake, or fraud to be inquired intoin some regular judicial contest, if the parties concerned shall afterwards seefit to institute it.[3] If a return
[1] Nichols v. Mudgett, 32 Vt. 546; Meacham v.Dow, 32 Vt. 721; Piatt v. People, 29 Ill. 54; Duke v. Asbee, 11Ired. (N. C.) 112; Ham v. Smith, 87 Penn. St. 63; Harvey v. TamaCounty, 53 Iowa, 228; Glover v. Taylor, 38 La. Ann. 634.
[2] State v. Olin, 23 Wis. 309, 327; State v.Purdy, 36 Wis. 213.
[3] Ex parte Heath, 3 Hill (N. Y.), 42; Opinions of Judges,64 Me. 588; Phelps v. Schroder, 26 Ohio St. 549; People v.Hilliard, 29 Ill.
is void on its face, it must of course be rejected;[1] but itwould be almost a matter of course to permit errors of form to be corrected bythe local board when the case admitted of it. Forgery in the returns thecanvassing board must necessarily inquire into, since a forged return is in lawno return at all.[2]
In a few of the States during the unsettled times following the civilwar, returning boards were provided for by law, with powers far surpassingthose which any judicial body can exercise; for they were empowered to reviseand reject returns on ex parte showing, and thus to proceed withouttrial and condemn parties not heard. It may n6 doubt be safely assumed that thetime when such excessive powers could be created or tolerated has passedaway.
Canvassing boards in the performance of their duties are, like otherministerial or administrative bodies, under the control of judicial authority,and when they neglect or refuse to obey the law may be coerced by means of thewrit of mandamus.[3]
Contesting Elections. It is no doubt competent to provideby the State constitution that the decisions of the canvassing board upon theelection of any officers under the State shall be conclusive.[4]This, however, is unusual;
413; State v. Governor, 25 N. J. 344; State v. Harrison,38 Mo. 540; Taylor v. Taylor, 10 Minn. 107; Switzer v. Dyer,House of Rep. (1870); Coll v. Board of Canvassers, 83 Mich. 367.
[1] State v. State Canvassers, 36 Wis. 498; Perryv. Whittaker, 71 N. C. 475.
[2] Attorney General v. Barstow, 4 Wis. 567. The hoardshould correct an arithmetical mistake in the returns. State v. Hill, 20Neb. 119.
[3] Commonwealth v. Emminger, 74 Penn. St. 479; Clarkv. McKenzie, 7 Bush (Ky), 523; State v. Gibbs, 13 Fla. 55; Bankv. Supervisors, 4 W. Va. 371; Kisler v. Cameron, 39 Ind 488;State v. County Com'rs, 23 Kans. 264; Simon v. Durham, 10 Oreg.52; State v. Berg, 76 Mo. 136.
[4] Grier v. Shackleford, Const. Rep (S. C.) 642;Batman v. Megowan, 1 Met. (Ky.) 533; State v. Marlow, 15 Ohio St.114; People v. Goodwin, 22 Mich. 496; Baxter v. Brooks, 29 Ark.173.
and in general the party who claims to have been deprived of an officeunjustly by the results of the canvass may have bis claim tried in the courts.In some cases it has been held that jury trial upon such a claim is matter ofright,[1] but this is denied in others;[2] and there ismuch reason for saying that the State may provide any method that seems mostconsistent with public policy for determining who, by the result of anelection, is entitled to be recognized as the official administrator of itslaws.[3] It is different when the question is one of the forfeitureof an office; for when once acquired, the incumbent has property rights init
Legislative elections are determined by the body for a seat in which theelection is had. This is expressly provided by the Constitution in the case ofthe two houses of Congress,[4] and the judiciary can in no mannerinterfere with their conclusions. The evidence in a legislative contest isusually taken by committees, and the case decided on the committee's report. Ongeneral principles a case once decided should be considered closedforever.[5]
Fifteenth Amendment. By the fifteenth article of theamendments it is provided that "the right of citizens of the United States tovote shall not be denied or abridged by the United States, or by any State, onaccount of race, color, or previous condition of servitude." This provisiongives to the freedmen and other colored persons the right to impartialconsideration in the law of suffrage in the several States.
[1] State v. Bennett, 2 Ala. 140; People v.Railroad Co , 57 N. Y. 160.
[2] Ewing v. Fuller, 43 Penn. St. 384; Commonwealthv. Leech, 44 Penn. St. 332; State v. Johnson, 26 Ark. 281; Statev. Lewis, 51 Conn. 113.
[3] Kennard v. Louisiana, 92 U. S. 480.
[4] Const., Art. I § 5. Provisions for contestedelections to Congress are made by Rev. Stat. U. S., ch. 8.
[5] Mr. McCrary, in the sixth chapter of his treatise on theLaw of Elections, has gone at some length into the evidence receivable bylegislative committees
The second clause of the fourteenth article was intended to influencethe States to bring about by their voluntary action the same result that is nowaccomplished by this amendment. It provided that when the right to vote wasdenied to any of the male inhabitants of a State, being twenty-one years of ageand citizens of the United States, or any way abridged except for participationin crime, the basis of representation in Congress should be reduced in theproportion which the number of such male citizens should bear to the wholenumber of male citizens twenty-one years of age in such State. By this, thepurpose was to induce the States to admit colored freemen to the privilege ofsuffrage by reducing the representation and influence of the States in theFederal government, in case they refused. No opportunity occurred for testingthe efficacy of this plan previous to the adoption of the fifteenth article,and it cannot therefore be affirmed whether it would or would not have beensuccessful. Important questions, however, may still arise under it. Theprovision is general; it is not limited to freedmen, but it applies whereverthe right to vote is denied to male citizens of the proper age, or is abridgedfor other cause than for participation in crime. The State of Connecticutdenies the right of suffrage to all who cannot read, and Massachusetts andMissouri to all who cannot both read and write; and many of the States admit noone to the privilege of suffrage unless he is a tax-payer. So in the majorityof the States a citizen absent therefrom, though in the public service, cannotvote, because the State requires as a condition the personal presence of thevoter at the polls of his municipality. Possibly it may be said, in respect tosuch cases, that the representation of the State should be reduced inproportion to the number of those who are excluded because they cannot read andwrite, or do not pay taxes, or are absent. It is not likely, however, that anysuch position would be sustained. To require the payment of a capitation tax isno denial of suffrage; it
is demanding only the preliminary performance of public duty, and may beclassed, as may also presence at the polls, with registration, or theobservance of any other preliminary to insure fairness and protect againstfraud. Nor can it be said that to require ability to read is any denial ofsuffrage. To refuse to receive one's vote because he was born in someparticular country rather than elsewhere, or because of his color, or becauseof any natural quality or peculiarity which it would be impossible for him toovercome, is plainly a denial of suffrage. But ability to read is somethingwithin the power of any man; it is not difficult to attain it, and it is nohardship to require it. On the contrary, the requirement only by indirectioncompels one to appropriate a personal benefit he might otherwise neglect. Itdenies to no man the suffrage, but the privilege is freely tendered to all,subject only to a condition that is beneficial in its performance, and light inits burden. If a property qualification, or the payment of taxes upon propertywhen one has none to be taxed, is made a condition to suffrage, there may beroom for more question.
Discriminations in Naturalization. Although the FifteenthAmendment forbids discriminations founded on race, color, &c., as betweencitizens, it does not forbid discriminations in the naturalization laws.Indeed, at the time when this amendment was adopted only white persons werepermitted to become citizens by naturalization, and the amendment to the lawssince made only extends the privileges to persons of Africandescent.[1]
Reasons for the Amendment. The experiment of impartialsuffrage, though confessedly under the circ*mstances one of much danger, wasentered upon under the influence of two sets of reasons; the first of which hadin view the interest of the colored people, and the second contemplated thegeneral interest of the country. The experiment, it was believed, would benefitthe colored [1] Rev. Stat. U. S., § 2169; Act of July 14,1870.
race, first, because it would give to them importance, secure to themrespect, and protect them against unfriendly action or legislation; and,second, because it would be to them an educational process of the highestimportance, not only as it would incite them to prepare themselves for theduties of citizenship, but as it would accustom them to the practicalperformance of such duties.
An opinion has been expressed that these were the real purposes of theamendment.[1] But as all rules of suffrage contemplate the benefitof the State rather than that of individuals, we may assume that the advantageto individuals was only a secondary purpose. The reasons why the change wasthought to be important on public grounds were, first, that unless the ballotwas given to the freedmen the government of the Southern States must for aconsiderable time be in the hands of those lately in rebellion, and who mightbe expected not to co-operate in government heartily and cordially with thosefrom whose political association they had so strenuously endeavored to breakaway; and, second, that the existence in the political community of a greatbody of citizens, against whom the laws discriminate in a particular whichmakes the discrimination a stigma and a disgrace, must always be an occasion ofdiscontent, disorder, and danger.
The experiment, however fraught with danger, was directly in the line ofothers which began with the organization of the government. All changes hadbeen in the direction of enlarging the basis of suffrage, and this amendmentdid not originate the embarrassments and dangers attending unintelligentparticipation in elections, but only added to them.
Legislation. The Fifteenth Amendment empowers Congress toenforce it by appropriate legislation. It is unquestionable that the amendmentis self-executing to this extent, that all laws and all provisions of Stateconstitutions which conflict with it were at once annulled. Con [1]Hunt, J., in United States v. Reese, 92 U. S. 214, 217.
gressional legislation could only be needed to prevent the impartialrule of the Constitution being nullified by failure of officers to give effectto it.
In considering legislation adopted by Congress, the Supreme Court haslaid down the following general principles:
1. The Constitution of the United States confers the right to vote uponno one. That right comes to the citizens of the United States, when theypossess it at all, under State laws, and as a grant of State sovereignty. Butthe Fifteenth Amendment confers upon citizens of the United States a newexemption;[1] namely, an exemption from discrimination in electionson account of race, color, or previous condition of servitude. This exemptionthe United States may protect by appropriate legislation.
2. The power in Congress to legislate at all on the subject of voting atState elections rests upon the Fifteenth Amendment. The whole subjectwas in the hands of the States before, and Congress obtained a right tointervene only by the amendment, and to the extent that should be needful toprotect the exemption to which citizens of the United States thereby becameentitled.[2]
SECTION III. THE RIGHT OF ASSEMBLY AND PETITION.
The Constitution. The First Amendment to the Constitutionfurther declares that Congress shall make no law abridging the right of thepeople peaceably to assemble
[1] When the constitution or laws of a State do not on theirface discriminate between races, and it is not shown that their actualadministration is evil, only that evil is possible under them, there seems tobe no violation of the Federal Constitution. Williams v. Mississippi,170 U. S. 213.
[2] United States v. Reese, 92 U. S. 214; UnitedStates v. Cruikshanka, 92 U. S. 542. The student will remember that theFederal government can make laws for the protection of purity of electionswhere Congressmen are chosen. See ante, p. 278.
and to petition the government for a redress of grievances. Two rightsare protected by this provision: the right of the people to assemble themselvestogether, and the right of petition; but they are protected as against Federalaction only.[1]
The People. When the term "the people" is made use of inconstitutional law or discussions, it is often the case that those only areintended who have a share in the government through being clothed with theelective franchise. Thus, the people elect delegates to a constitutionalconvention, and determine by their votes whether the completed work of theconvention shall or shall not be adopted; the people choose the officers underthe Constitution, and so on. For these and similar purposes the electors,though constituting but a small minority of the whole body of the community,nevertheless act for all, and, as being for the time the representatives ofsovereignty, they are considered and spoken of as the sovereign people. But inall the enumerations and guaranties of rights the whole people are intended,because the rights of all are equal, and are meant to be equally protected. Inthis case, therefore, the right to assemble is preserved to all the people, andnot merely to the electors, or to any other class or classes of the people.
Right to Assemble. The right to assemble may be importantfor religious, social, industrial, or political purposes; but it was no doubtit* political value that was in view in adopting the amendment. To assemble forreligious purposes is a part of the religious liberty of the people, andrequired no additional protection. Social meetings and industrial meetings areseldom likely to be disturbed by the authorities, except when they are believedto contemplate public disorder, and are in open defiance
[1] United States v. Cruikshanks, 92 U. S. 542. TheFirst Amendment is of course binding on the national government only; but topetition Congress for a redress of grievances is evidently a privilege ofUnited States citizenship which cannot be abridged by a State. Ibid., p.552
of the law; but there must be an actual breach of the law before theycan be intermeddled with. Individuals may perhaps render themselves liable toarrest by threats, but these only constitute individual misconduct.
A political meeting by electors may have one purpose, and that bynon-electors another. The former will usually meet for some purpose preparatoryto the exercise of the political franchise, such as to hear addresses, selectcandidates for their suffrages, and the like, or perhaps to petition those forthe time in authority in respect to something in which they may take specialinterest. The non-electors may also meet for petition or remonstrance, or, onthe other hand, they may meet to express their sense of wrong at being excludedfrom political privileges, and to demand a right to participate with others. Ademand for equality of political privilege by a disfranchised class,persistently made and pressed, has often made itself heard, and theconstitution of the land has been altered in response to it. Still more oftenstatutes have been enacted, modified, or repealed, in deference to the appealsof those who were not allowed the right to vote; and perhaps the right ofassembly on their part is more important to the State than the same right onthe part of those who may make themselves heard through their directparticipation in the government.
The right of assembly always was, and still is, subject to reasonableregulations by law. Parliament has sometimes been compelled to interpose strictregulations, when a great and tumultuous body of people threatened to appear atit* doors to present a demand for a change in the law.
Right to Petition. The right to petition is notcoextensive with the right to assemble; for in its nature it can have no placein merely social affairs, though it has a limited range in religious andindustrial organizations. Petition is for the redress or prevention ofgrievances, and is addressed to some person or body having, in respect to,
the matter in hand, superior authority. It is a generic term, however,and applies to all recommendations to office or public position or privilege,as well as to remonstrances against them, and to appeals of every sort, and forevery purpose, made to the judgment, discretion, or favor of the person or bodyhaving authority in the premises.[1]
A petition is, nevertheless, merely a privileged publication, and theright to be heard by means of it may be so abused as to take away theprivilege. One must not resort to it for the purpose of visiting his maliceupon others, through the publication of false charges; but when the occasion isproper for petition, good motives in presenting it will be presumed, and thefact that it contains false and injurious aspersions of character will not makeout a right of action, but malice in the petitioner must be establishedalso.[2] The petition must be for something within the authority ofthe person or body addressed to grant, or must in good faith be supposed tobe;[3] and when it is, it will be protected while circulating forsignatures, as well as after it has been presented.[4] But if afalse charge is merely put in the form of a petition, without the intent topresent it, it is not within the privilege.[5]
SECTION IV. THE RIGHT TO KEEP AND BEAR ARMS.
The Constitution. By the Second Amendment to theConstitution it is declared that "a well regulated militia being necessary tothe security of a free State, the right of the people to keep and bear armsshall not be infringed."
[1] Kershaw v. Bailey, 1 Exch. 743; Bradley v.Heath, 12 Pick.
(Mass.) 163.
[2] Gray v. Pentland, 2 S. & R. (Penn.) 23; Howardv. Thompson 21 Wend. (N. Y.) 319.
[3] See Fairman v. Ives, 5 B. & Ald. 642.
[4] Vanderzee v. McGregor, 12 Wend. (N. Y.) 545.
[5] State v. Burnham, 9:N. H. 34.
The amendment, like most other provisions in the Constitution, has ahistory. It was adopted with some modification and enlargement from the EnglishBill of Rights of 1688, where it stood as a protest against arbitrary action ofthe overturned dynasty in disarming the people, and as a pledge of the newrulers that this tyrannical action should cease. The right declared was meantto be a strong moral check against the usurpation and arbitrary power ofrulers, and as a necessary and efficient means of regaining rights whentemporarily overturned by usurpation.[1]
The Right is General. It may be supposed from thephraseology of this provision that the right to keep and bear arms was onlyguaranteed to the militia; but this would be an interpretation not warranted bythe intent. The militia, as has been elsewhere explained, consists of thosepersons who, under the law, are liable to the performance of military duty, andare officered and enrolled for service when called upon. But the law may makeprovision for the enrolment of all who are fit to perform military duty, or ofa small number only, or it may wholly omit to make any provision at all; and ifthe right were limited to those enrolled, the purpose of this guaranty might bedefeated altogether by the action or neglect to act of the government it wasmeant to hold in check. The meaning of the provision undoubtedly is, that thepeople, from whom the militia must be taken, shall have the right to keep andbear arms, and they need no permission or regulation of law for the purpose.But this enables the government to have a well regulated militia; for to beararms implies something more than the mere keeping; it implies the learning tohandle and use them in a way that makes those who keep them ready for theirefficient use; in other words, it implies the right to meet for voluntarydiscipline in arms, observing in doing so the laws of public order.
Standing Army. A further purpose of thisamend-[1] 1 Tuck. Bl. Com., App. 300.
ment is, to preclude any necessity or reasonable excuse for keeping up astanding army. A standing army is condemned by the traditions and sentiments ofthe people, as being as dangerous to the liberties of the people as the generalpreparation of the people for the defence of their institutions with arms ispreservative of them.
What Arms may be kept. The arms intended by theConstitution are such as are suitable for the general defence of the communityagainst invasion or oppression, and the secret carrying of those suited merelyto deadly individual encounters may be prohibited.[1]
SECTION V. FREEDOM OF SPEECH AND OF THE PRESS.
The Constitution. The First Amendment to the Constitutionfurther provides that Congress shall make no law abridging the freedom ofspeech or of the press. What is first noticeable in this provision is that itundertakes to give no rights, but it recognizes the rights mentioned assomething known, understood, and existing, and it forbids any law of Congressthat shall abridge them. We are thus referred for an understanding of theprotection to the pre-existing law; and this must either have been the commonlaw, or the existing statutes of the States. The statutes, however, will befound to be nearly silent on this important subject, and the common law must beour guide.
Freedom of the Press. De Lolme, who wrote upon theConstitution of England just before the meeting of the ConstitutionalConvention, and who undertook to gather from the common law the meaning of thisamong other principles of liberty, has expressed his conclusion thus: "Theliberty of the press as established in England consists in this, that neitherthe courts of justice, nor any other judges whatever, are authorized to takenotice of writings intended for the press, but are confined to those
[1] Andrews v. State, 3 Heisk. 165, found also withnotes in 1 Green's Cr. Rep. 466, and 8 Am. Rep. 8; State v. Shelby, 90Mo. 302.
which are actually printed, and must in these cases proceed by the trialby jury."[1] Mr. Justice Blackstone adopted this view as undoubtedlycorrect,[2] and in this country it has been accepted as expressingthe views of those who framed and adopted this amendment.[3] If itexpresses their views fully, we must conclude that the amendment is aimed onlyat such censorship of the press as had sometimes been exercised in England, andto some extent in the Colonies also, and that, while forbidding this, andleaving every one to publish what he might please, it left him, at the sametime, to such responsibility for his publications as the law might provide.
It seems more than probable, however, that the constitutional freedom ofthe press was intended to mean something more than mere exemption fromcensorship in advance of publication. Such censorship had never been general inthe Colonies: it did not exist at all at the time of the Revolution, and therewas no apparent danger of its ever being restored. To forbid it, therefore, andespecially just at a time when the people had been taking a larger share in thegovernment into their own hands, and when the command would be laid on theirown representatives, would appear to savor somewhat of idle ceremony. But thehistory of the times shows that the people believed a right of publicationexisted which might be invaded and abridged by oppressive prosecutions, and bylaws which admitted the liberty to publish, but enlarged beyond reason thesphere of responsibility; and the evils they feared had no necessary connectionwith any established or threatened censorship. Nor could any valuable purposebe accomplished by introducing in the Constitution a provision which shouldforbid merely a previous supervision of intended publications, if the law mightbe so made, or so administered, as to inflict punishment for publicationswhich
[1] De Lolme, Const. of Eng., ch. 10. [2] 4 Bl.Com., 151.
[3] Rawle on Const., ch 10; 2 Kent, 17; Story on Const.,§ 1889, Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313.
might be not only innocent, but commendable. The citizen might betterhave the arm of the government interposed for prevention, than reached outafterwards to inflict penalties; his just freedom would be restrained in theone case as well as in the other.
Light may be thrown upon the intent by a consideration of the purposeswhich the enjoyment of the right subserves. The press is a public convenience,which gathers up the intelligence of the day to lay before its readers,notifies coming events, gives warning against disasters, and in various wayscontributes to the happiness, comfort, safety, and protection of the people.But in a constitutional point of view its chief importance is, that it enablesthe citizen to bring any person in authority, any public corporation or agency,or even the government in all its departments, to the bar of public opinion,and to compel him or them to submit to an examination and criticism of conduct,measures, and purposes in the face of the world, with a view to the correctionor prevention of evils; and also to subject those who seek public positions toa like scrutiny for a like purpose. These advantages had been fully realizedand enjoyed by the people during the revolutionary epoch; the press had beenthe chief means of disseminating free principles among the people, and inpreparing the country to resist oppression; and its powers for good in thisdirection had appeared so great as to cast its other benefits into the shade.It is a just conclusion, therefore, that this freedom of public discussion wasmeant to be fully preserved; and that the prohibition of laws impairing it wasaimed, not merely at a censorship of the press, but more particularly at anyrestrictive laws or administration of law, whereby such free and generaldiscussion of public interests and affairs as had become customary in Americashould be so abridged as to deprive it of its advantages as an aid to thepeople in exercising intelligently their privileges as citizens, and inprotecting their liberties.
The freedom of the press may therefore be defined to be the liberty toutter and publish whatever the citizen may choose, and to be protected againstlegal censure and punishment in so doing, provided the publication is not sofar injurious to public morals or to private reputation as to be condemned bythe common law standards, by which defamatory publications were judged whenthis freedom was thus made a constitutional right. And freedom of speechcorresponds to this in the protection it gives to oralpublications.[1]
Blasphemous and indecent publications, and the exhibition of indecentpictures and images, were always punishable at the common law, and theirpunishment may be provided for by Congress in any territory under its exclusivecontrol. Libellous written, printed, or pictorial attacks upon individuals,maliciously made, were also criminal; and if, in respect to these offences, thecommon law should be found defective, statutory law may supply the defects, not, however, enlarging the general scope of liability. Besides thecriminal, there was always a civil responsibility, in the case of any false andmalicious publication calculated to disgrace or injure an individual, anddamages might be recovered by the party wronged, whether the publication wasmade by writing or print, or was merely oral. These rules are consistent with ajust freedom, and they remain undisturbed.
The cases which are important in a constitutional point of view arethose which are said to be privileged; by which is meant that the party isprotected against responsibility, either civil or criminal, notwithstanding hispublication may prove both unfounded and injurious. There are two classes ofprivilege, the one absolute, or where the protection is complete and perfect,and the other conditional and dependent on motive. Some of these cases rest ongrounds of private confidence merely, and are not
[1] Cooley, Const. Lim., 6th ed., 518.
important here; but others rest on public and general reasons.
Cases of Absolute Privilege. One of these is provided forspecially in the clause of the Constitution which declares that members ofCongress, for any speech or debate in either house, shall not be questioned inany other place.[1] Another relates to what is said by a witness inthe course of judicial proceedings, and which is not allowed to be made theground of a civil action, however false and malicious it may be, though theState may punish the perjury.[2] A like protection is thrown aroundwhat a juror may say to his fellows in the jury room, concerning the parties tothe case submitted to them, or concerning those who may have given evidencetherein.[3] Complaints for the purpose of bringing a supposedoffender to trial, and the preliminary information on which the officers mayact in originating proceedings have a similar privilege,[4] and sodo pleadings and other papers in the progress of litigation, where in theirstatements they do not depart from the matter in controversy.[5] TheExecutive of the United States and the governors of the several States areexempt from responsibility for their official utterances, and so are all judgesof courts, and all officers performing functions in their nature judicial,while acting within the limits of their jurisdiction.[6] The partyto a cause, summing it up to jury or court, must have the utmost liberty ofdealing with the actions, conduct, and motives of the opposing party and thewitnesses, and the law protects this liberty
[1] Const., Art. I. § 6.
[2] Marsh v. Ellsworth, 50 N. Y. 309; Terry v.Fellows, 21 La. Ann. 375; Verner v. Verner, 64 Miss. 321.
[3] Dunham v. Powers, 42 Vt. 1.
[4] Dawkins v. Lord Pawlet, L. R. 5 Q. B. 94.
[5] Garr v. Selden, 4 N. Y. 91; Strauss v.Meyer, 48 Ill. 385; Wilson v. Sullivan, 81 Ga. 238; Runge v.Franklin, 72 Tex. 585; Dada v. Piper, 41 Hun, 254; Bartlett v.Christhilf, 69 Md. 219.
[6] Townshend, Slander and Libel, § 227; Cooley onTorts, 2d ed. 250.
and extends it to his counsel also; and the latter, so long as he keepsto the case in hand and does not wander from it for the purpose of detractionand abuse, may freely urge in the interest of his client what he believes thecase demands.[1]
Libels on Government. At the common law it was a criminaloffence to publish anything against the constitution of the country or theestablished order of government. This was upon the ground that the tendency ofsuch publications was to excite disaffection with the government, and thus toinduce a revolutionary spirit. But a calm and temperate discussion of publicevents and measures was always in theory allowed, and every man had a right togive to every matter of public importance a candid, full, and free discussion.It was therefore only when a publication went beyond this, and tended to excitetumult, that it became criminal. But as the government itself will instituteand conduct the prosecutions, and as the offence will consist in a criticism ofthe constitution and system of government as the authorities administer them,it is never likely that anything very effectual in criticism will be found bythe prosecution to be either calm or temperate. The government prosecutions forlibel in England have been so manifestly and notoriously unjust, unreasonable,and oppressive, that one advocate won a great name and a great place in theregard of the people in resisting them; and at length public sentimentcompelled their abandonment. A publication in criticism or condemnation of thegovernment or Constitution of the United States is not punishable at the commonlaw, for the reason that the United States as such has no common law, and cantherefore punish as crimes only those acts which are made punishable by expressstatute.[2] Nor is
[1] Hoar v. Wood, 3 Met. (Mass.) 193; Maulsbyv. Reifsnider, 69 Md. 143. In England counsel stand on the same groundas witnesses and judges, and their statements are absolutely privileged.Munster v. Lamb, 11 Q. B. D. 588.
[2] United States v. Hudson, 7 Cranch, 32.
It by any means clear that such publications could be made crimes bylegislation. The right of the people to change their institutions at will isexpressly recognized by Federal and State constitutions, and this implies aright to criticise, discuss, and condemn, and a right if possible to bring thepeople to the point of consenting to any change short of the abolition ofrepublican institutions. It is believed that the sedition law of 1798 went tothe very verge of constitutional authority, if not beyond it;[1] andthe entire failure to re-enact any similar legislation since is satisfactoryevidence that it is regarded as unnecessary, if not unsound in principle. Butconspiracies to overturn the government by force are always punishable, andseditious publications are usually a part of the res gestæ of suchoffences.
Reports of Trials, &c. Full and fair reports of whattakes place publicly in legislative bodies and their committees, and in thecourts high and low, are also absolutely privileged. The citizen has a right tobe present at such proceedings, but the reasons which throw them open tospectators justify publication for the benefit of those who cannot or do notattend. It is only by publicity of proceedings that those to whom the libertyand civil and political rights of their fellows are submitted can be kept undera due sense of responsibility, and within the limits of the rules that shouldgovern their conduct.[2] But the report must be confined to theproceedings themselves, and must not indulge in defamatory observations,headings, or comments.[3] The privilege,
[1] The prosecutions under this law, reported in Wharton'sState Trials, pp. 333, 659, 684, and 688, are very instructive. They did moreto excite disaffection to the government than all the misconduct complainedof.
[2] Hoare v. Silverlock, 9 C. B. 20; Gazette Co. v.Timberlake, 10 Ohio St. 548. The publication before a hearing of the contentsof a paper filed is not privileged. Cowley v. Pulsifer, 137 Mass.92.
[3] Pittock v. O'Niel, 63 Penn. St. 253; Storeyv. Wallace, 60 Ill 51; Hayes v. Press Co., 127 Penn. St. 642.
however, has never been extended to ex parte proceedings orexaminations, the reason being that they tend to mislead the public rather thanto enlighten it.[1] One may publish these, but at the peril of beingheld responsible if any untrue statement made in the publication provesinjurious to the standing, reputation, or business of individuals.
Cases conditionally Privileged. In cases of absoluteprivilege the motive of the party making the publication is not suffered to begone into, because the public benefit to be accomplished in the exercise of theprivilege cannot be fully had without the most full and absolute exemption fromcivil responsibility. But there are some cases which are privileged in which itis perfectly reasonable to require that the privileged party shall publish onlywhat he believes, and that the occasion of the publication shall be such as tojustify it if true. The following are such cases.
Criticism of Officers and Candidates. When one offershimself as a candidate for a public position, he voluntarily puts in issue hisfitness for the place, and those who question it have a right to be heardbefore the people, and to give their reasons freely. When one holds a publicoffice the issue offered is still broader, for the manner in which officialduties have been performed comes in with his personal qualities, character, andhabits, and may be discussed as something in which the public are concerned.Any citizen may speak freely, not only what he knows which bears upon thesubject, but also what he believes and what he suspects, provided he has onlythe public interest in view and does not act maliciously. It must be said,however, that, while the authorities have conceded this rule, they have in somecases applied it with so little liberality as nearly to destroy itsvalue.[2]
[1] Usher v. Severance, 20 Me. 9.
[2] King v. Root, 4 Wend. (N. Y.) 113; Lewis v.Few, 5 Johns. (N. Y.) 1; Cooler, Const. Lim., 6th ed., 529-542. See Burkev. Mascarich, 81 Cal. 302; Randall v. Evening News Ass , 79 Mich.266; Upton v. Hume, 24 Oreg. 420
Discussion of Public Affairs. A like liberty of commentand discussion is allowed upon subjects in which the general public mayreasonably be supposed to have an interest, and the discussion will beprivileged if conducted within the bounds of moderation and reason, thoughindividuals may incidentally suffer therefrom.[1] The Englishauthorities limit this privilege to cases of general, and not merely localinterest,[2] though the reason for any distinction between them isnot very apparent. But in matters of private interest, such as the affairs of aprivate corporation, there is no such liberty of comment, except by and amongthe parties concerned.[3]
Criticism of Books, &c. The publication of books,magazines, pamphlets, &c. is an assumption that they are fit to be read bythe public, useful, and therefore proper for publication; and whoever disputesthis may freely publish his reasons, doing so in good faith, and taking carenot to make his criticisms of the publication an excuse for assailing theauthor.[4]
The Truth as a Protection. When the party complaining ofan injurious publication brings suit for the recovery of damages, the truth ofthe publication is a complete defence, whether the case was or was not one ofprivilege. If nothing but the truth is published of an individual, it is noground for the recovery of damages by him that the truth is so derogatory tohis reputation that it injures him. But written or printed slander may be theground for a criminal prosecution also, and in criminal prosecutions adifferent principle applies. The injury then complained of is an injury to thepublic; and when pri-
[1] Wason v. Walter, L. R. 4 Q. B. 73; Kinyonv. Palmer, 18 Iowa, 377.
[2] Purcell B. Lawler, L. R. 1 C. P. D. 481; Gassettv. Gilbert, 6 Gray (Mass ), 94.
[3] Wilson v. Fitch, 41 Cal. 363.
[4] Reade v. Sweetser, 6 Abb Pr. (N. S.) 9, note;Merivale v. Carson, L. R. 20 Q. B. D. 275; Dowling v.Livingstone, 66 N. W. Rep. 225 (Mich.).
vate reputation and conduct are needlessly dragged before the public tothe disturbance of the peace of society, the public injury may be as great whenonly the truth is spoken, as when the publication is wholly untrue. The truth,therefore, is not in all cases a defence to a prosecution for criminal libel,but the publisher, in addition to the truth, must show that he made thepublication with good motives and for justifiable ends. This is recognized inthe constitutional provisions of the several States, which declare in substancethat the truth shall be a complete defence in all prosecutions for libel,provided it was published with good motives and on justifiable occasion. If thepublication was one proper to be placed before the public, either for theaccomplishment of some commendable public purpose, or for warning andprotection to the public or to individuals, or even for the amendment of theperson arraigned, the proper motives may be inferred;[1] but wherenone of these things is apparent, the burden of proof is on the publisher toestablish good motives and show a just occasion. But blasphemous and indecentpublications could not be justified at all, since the necessary tendency mustbe evil. And the fact that the publication was merely the repetition of acharge made by another is by itself no defence whatever.[2]
The Jury Judges of the Law. A provision in Stateconstitutions that the jury shall be judges of the law in criminal prosecutionsfor libel is common, and sometimes the provision is broader, and embraces allsuits for libel and slander. These provisions had their occasion in earlyrulings of the courts, that the jury in suits for defamation of character mustconfine their attention to the fact of publication, and must receive theopinion of the court on the libellous or innocent character of the publicationas conclusive. This doctrine was overruled by statute in England, and the juryare now permitted to judge of the
[1] State v. Burnham, 9 N. H. 34.
[2] Regina v. Newman, 1 El. & Bl. 268.
whole case, and to decide, not merely upon the responsibility of thepublication, but upon the animus with which it was made, and whetherwithin the rules of law the publication is libellous. The instructions of thejudge upon the law become under this rule advisory merely, and the jury maydisregard them if their judgment is not convinced.[1]
Publication of News. No privilege has ever been accordedto the publishers of mere items of news except to this extent: that when thepublication is made in good faith, in the ordinary course of business, andwithout intent to defame, the party injured will be restricted in his recoveryto the actual damages.[2] Generally in suits for defamation ofcharacter the jury have a large discretion in awarding what are calledexemplary damages.
Meaning of "the Press." The freedom of the press isnot limited to any particular form or method of publication, but it extends toall modes of putting facts, views, and opinions before the public. Books,pamphlets, circulars, &c., are therefore as much within it as theperiodical issues.
[1] The relations of court and jury under these provisions iswell discussed in Drake v. State, 53 N. J. Law, 23, where it is heldthat their purpose is to give the jury the right to render a general verdictupon the whole matter put in issue; or in other words, to determine the law andthe fact.
[2] Daily Post Co. v. McArthur, 16 Mich. 447; Perrettv. N. O. Times, 25 La. Ann. 170; Fenstermaker v. Tribune Pub.Co., 12 Utah, 439. A statute embodying this rule as applied to newspapers hasbeen upheld in Allen v. Pioneer Press Co., 40 Minn. 117. But thecontrary ruling was made in Park v. Detroit Free Press Co., 72 Mich.560, on the ground that it was class legislation. The exclusion of immoral material from the mail is not an interference with the freedom of the press Exparte Jackson, 96 U. S. 727; In re Rapier, 143 U. S. 110.
CHAPTER XV. PROTECTIONS TO PERSONS ACCUSED OF CRIME.
SECTION I. LEGISLATIVE ADJUDICATIONS.
General Considerations. It is shown in a previous chapterthat the people, by creating separate legislative and judicial departments ofthe government, by implication forbid the former from exercising any powersthat properly belong to the latter. Under this principle it might well be heldthat the power in the legislature to deal with crimes and their punishments,otherwise than by the establishment of general laws by which conduct should bejudged in the future, was by implication forbidden. Even without the aid ofthat principle, it might well be said that to judge the conduct of menotherwise than by established laws existing when the acts complained of tookplace, or otherwise than by a judicial tribunal, must be understood asforbidden by necessary implication in the very organization of a free state. Bygeneral consent a legislative body, by its organization, its numbers, itsdirect responsibility to the popular majority, and the fact that it is chosenfor other duties, is not a fit tribunal for the trial of alleged offences, andthe temptation to use the power of punishment as a political weapon is one towhich a wise people would never deliberately subject their legislature. But informing the Constitution it was judged best to leave nothing of this sort tomere implication, and accordingly we have the most positive prohibitions.
Bills of Attainder. Both the United States[1]and the several States[2] are forbidden to pass bills ofattainder.
[1] Const., Art I. § 9, cl 3,
[2] Const., Art. I. § 10, cl. 1.
As known in English history, bills of attainder were enactments ofParliament, charging persons named with criminal misconduct of some sort,convicting them thereof, and adjudging the punishment of death, with forfeitureof property. Sometimes the proceeding was resorted to because the obnoxiouspersons were out of the realm, and therefore out of the reach of process,sometimes because the evidences of guilt might not be sufficient for judicialconviction, and sometimes because the obnoxious conduct had never been madecriminal by law, and consequently the person whom the authorities desired tomake away with was not subject to punishment in any judicial proceeding. It wasquite possible in these cases for the bill to go through all its stages withoutthe accused party being allowed any opportunity whatever for a hearing; and hemight be denied a hearing at the will of the legislature in all cases. In thehighest degree, therefore, such proceedings were likely to be unjust andtyrannical; and if a purpose existed to deal fairly in any particular case, thevery organization of the tribunal rendered it practically impossible. But inmost cases there was no such purpose, and the legislature, in passing a bill ofattainder, was the tool of a tyrant.[1] And what might take place atthe will of a king, under a monarchy, might also happen, at the demand of anexcited and passionate majority, at some periods in the history of arepublic.
Besides bills of attainder there were also bills called bills of painsand penalties, which differed from the former only in this, that thepunishments imposed were less than death. Many instances of these had occurredin American history, particularly in the case of Americans who had remainedloyal to the British Crown after the revolt of the Colonies.[2] Itis conceded on all sides, that the
[1] This was particularly true of the reign of HenryVIII.
[2] Cooper v. Telfair, 4 Dall 14. One of the New Yorkbills of attainder not only confiscated the property of the loyalists named,but
purpose of the constitutional inhibition is to take away the power topass either the one or the other; in short, wholly to deprive the government ofany power to inflict legislative punishment for criminal, or supposed criminalconduct.[1] And a case in which the punishment is imposedindirectly, as by depriving one of the right to follow hisoccupation,[2] or to institute suits,[3] unless he willtake an oath that he has not been guilty of certain specified conduct, is asmuch a bill of attainder as is an act directly imposing a punishment.
Ex Post Facto Laws. The United States[4] andthe States,[5] alike, are also forbidden to pass ex postfacto laws. In its natural and ordinary sense this term embraces allretrospective laws , but in the Constitution the sense is more restricted, andis limited exclusively to laws of a criminal nature. Of retrospective laws ingeneral, therefore, there is no occasion to speak in this connection; but theywill receive some attention when the constitutional rules for the protection ofproperty are given. One of the early justices of the Supreme Court hasclassified ex post facto laws as follows: "1. Every law thatmakes an action done before the passing of the law, and which was innocent whendone, criminal, and punishes such action. 2. Every law that aggravates a crime,or makes it greater than it was when committed. 3. Every law that changes thepunishment, and inflicts a greater punishment than the law annexed to the crimewhen committed. 4. Every law that alters the legal rules of evidence, andreceives less or different testimony than the law required at the time of
actually condemned them to death in their absence, and withouttrial.
[1] Ex parte Garland, 4 Wall. 333. Excepting, of course, suchcon duct as may be punished under parliamentary law as contempt.
[2] Cummings v. Missouri, 4 Wall. 277. [3]Pierce v. Carskadon, 16 Wall. 234.
[4] Const., Art. I. § 9, cl. 3. [5] Const.,Art. I. § 10, cl. 1.
the commission of the offence, in order to convict theoffender."[1] And to these classes may be added: 5. Every lawwhich, assuming to regulate civil rights and remedies only, in effect imposes apenalty or the deprivation of a right for something which when done was lawful.And 6. Every law which deprives persons accused of crime of some lawfulprotection to which they have become entitled; such as the protection of aformer conviction or acquittal, or of a proclamation ofamnesty.[2]
But a law is not obnoxious to this provision which changes thepunishment by mitigating it;[3] or which changes the practice incriminal cases, still preserving to the defendant his substantialrights;[4] or which takes from him the privilege of mere technicalobjections;[5] or which limits the number of peremptory challengesto jurors,[6] or modifies not unreasonably the grounds of challengefor cause;[7] or changes the place of trial;[8] orpermits a change of venue for the purposes of a fair trial.[9] Noris
[1] Calder v. Bull, 2 Dall. 386, 390. A law is expost facto which makes the confinement of a condemned murderer solitary andgives the warden of the prison power to select any day within a given week forthe execution, and to keep the knowledge of it from the prisoner, whenpreviously the day was fixed by the court and the confinement was in a jail.Medley, Petitioner, 134 U. S. 160. So is a constitutional amendment, adoptedafter an offence, which alters the judicial rule that conviction of one gradeof homicide bars a future conviction of a higher grade. Kring v.Missouri, 107 U. S. 221. See Garvey v. People, 6 Col. 559; Hoptv. Utah, 110 U. S. 574. Likewise a provision for a trial by eightinstead of twelve jurors. Thompson v. Utah, 170 U. S. 343.
[2] State v. Keith, 63 N. C. 140.
[3] Clarke v. State, 23 Miss. 261; Ratzky v.People, 29 N. Y. 124.
[4] State v. Manning, 14 Tex. 402; State v.Corson, 59 Me. 137; State v. Cooler, 30 S. C. 105; Duncan v.Missouri, 152 U. S. 377; Gib. son v. Mississippi, 162 U. S. 565.
[5] Commonwealth v. Hall, 97 Mass. 570. [6]Dowling v. State, 13 Miss. 664.
[7] Stokes v. People, 53 N. Y. 164.
[8] Cook v. United States, 138 U. S. 157.
[9] Gut v. State, 9 Wall. 35.
ft incompetent, in providing for the trial of such offences as may becommitted in the future, to permit the punishment to be increased on proof of aprevious conviction; though the previous conviction took place before the law;for it is the subsequent offence only that is punished in such a case, and itwas committed with constructive, if not actual, notice of what the punishmentmight be.[1] A person may be extradited under a treaty, though hehad obtained asylum in the country before the treaty was made.[2]And a statute declaring that no person after conviction of a felony shallpractise medicine is within the police power of the State and not ex postfacto when enforced against a person convicted before itspassage.[3]
SECTION II. TREASON: ITS DEFINITION AND PUNISHMENT.
The Constitution. It is declared in the Constitution, that"treason against the United States shall consist only in levying war againstthem, or in adhering to their enemies, giving them aid andcomfort."[4] The provision is taken from the Statute of Treasons, 25Edw. III., before the passage of which, as the ancient common law wasadministered, it was in the breast of the judges to determine what conduct wastreason and what not, whereby the creatures of tyrannical princes hadopportunity to create abundance of constructive treasons; that is, by forcedand arbitrary constructions to raise offences into the crime and punishment oftreason, which never had been suspected to be such.[5] The statutedid not fully accomplish its purpose in England, as was proved by theconviction and execution of Algernon Sidney, whose real offence was thecombating in argument the arbitrary doctrines which were then pop-
[1] Rand v. Commonwealth, 9 Grat. (Va.) 738.
[2] In re De Giacomo, 12 Blatch. 391.
[3] Hawker v. New York, 170 U. S. 189.
[4] Const., Art. III. § 3.
[5] Instances are given by Blackstone, 4 Com. 75.
ular at the court;[1] but the wrongs of that arbitrary periodhad been avenged upon the perpetrators, and similar perversions of law andjustice Were not again to be looked for either in England or in America. If theattempt to revive constructive treasons should be made, the Constitution bythis clause provided against it as far as was possible.
What is Treason? A mere conspiracy by force to subvert theestablished government is not treason; but there must be an actual levying ofwar." War, however, is levied when men are assembled with the intent ofeffecting by force a treasonable purpose; and all persons who then perform anyact, however minute, or however remote from the scene of action, and who areactually leagued in the general conspiracy, are to be consideredtraitors.[3] And one is adherent to the enemies of the country, andgiving them aid and comfort, when he supplies them with intelligence, furnishesthem with provisions or arms, treacherously surrenders to them a fortress andthe like.[4] But coming from an enemy's ship to the shore peaceablyto procure provisions for him is said not to be treason.[5]
Evidence. A conviction of treason must be on the testimonyof at least two witnesses to the same overt act, or on confession in opencourt.[6] Previous to the English statute making the likerequirement, a trial for treason was commonly a mockery of justice.
SECTION III. THE WRIT OF HABEAS CORPUS.
The Constitution. The right to the important writ by meansof which the liberty of the citizen is protected
[1] Trial of Sidney, 9 State Trials, 817.
[2] Ex parte Bollman, 4 Cranch, 75.
[3] Ex parte Bollman, 4 Cranch, 75, 126. See Fries's Case,Whart. State Trials, 634, and the voluminous report of Burr's Trial.
[4] 4 Bl. Com. 76. If overt acts are committed, they need notbe successful to constitute giving aid, &c. United States v.Greathouse 2 Abb. U. S. 364.
[5] United States v. Pryor, 3 Wash. C. C. 234.[6] Const., Art. III. § 3.
against arbitrary arrests is not expressly declared in the Constitution,but it is recognized in the provision that "The privilege of the writ ofhabeas corpus shall not be suspended, unless when in cases of rebellionor invasion the public safety may require it."[1] This writ was theoffspring of the common law, but its benefits and securities were enlarged andguarded by the Habeas Corpus Act of Charles II., the general provisions ofwhich are adopted either by recognition, or by express legislation, in theseveral States.
Suspension of the Writ. The privilege of the writ consistsin this: that, when one complains that he is unlawfully imprisoned or deprivedof his liberty, he shall be brought without delay before the proper court ormagistrate for an examination into the cause of his detention, and shall bedischarged if the detention is found to be unwarranted. The suspension of theprivilege consists in taking away this right to an immediate hearing anddischarge, and in authorizing arrests and detentions without regular process oflaw. Such suspension has been many times declared in Great Britain, or in somesection of the British empire, within the present century; sometimes in view ofthreatened invasion, and sometimes when risings among the people had takenplace or were feared, and when persons whose fidelity to the government wassuspected, and whose influence for evil might be powerful, had as yet committedno overt act of which the law could take cognizance. It has been well said thatthe suspension of the habeas corpus is a suspension of MagnaCharta,[2] and nothing but a great national emergency could justifyor excuse it. The Constitution limits it within narrower bounds than do thelegislative precedents in Great Britain.
The power to suspend this privilege is a legislative power, and thePresident cannot exercise it except as an-
[1] Const., Art. I. § 9, cl. 2. [2] May,Const. Hist., ch..11.
thorized by law.[1] The suspension does not legalize what isdone while it continues; it merely suspends for the time this particularremedy. All other remedies for illegal arrests remain, and may be pursuedagainst the parties making or continuing them. It is customary, after the writhas been suspended in Great Britain, to pass acts of indemnity for theprotection of those in authority, who, in the performance of their duties tothe state, felt themselves warranted in arresting suspected persons while thesuspension continued. Something similar has been done in this country byprovisions in State constitutions;[2] but as a right of actionarising under the principles of the common law is property as much as aretangible things, it is not believed the right could be destroyed bystatute.[3]
State Suspensions. Nothing in this provision hinders theStates from suspending the privilege of this writ issuing from their owncourts, and the declaration of martial law in the State has the effect ofsuspending it.[4]
SECTION IV. ACCUSATIONS OF CRIME.
Grand Jury. Among the other provisions which by the FifthAmendment are made for the protection of persons accused of crimes is this, that "No person shall be held to answer for a capital or otherwiseinfamous crime unless on a presentment or indictment of a grand jury, except incases arising in the land or naval forces, or in the militia when in actualservice in time of war or public danger." A grand jury is a tribunal consistingof not less than twelve nor more than twenty-three men,
[1] Ex parte Merryman, 9 Am. Law Reg. 524; S. C. 14 Law Rep.N. S. 78; Taney, 246; McCall v. McDowell, 1 Abb. U. S. 212; Ex parteField, 5 Blatch. 63.
[2] See Freeland v. Williams, 131 U. S. 405; Drehmanv. Stifel, 8 Wall. 595; Hess v. Johnson, 3 W. Va. 645.
[3] Griffin v. Wilcox, 21 Ind. 370; Johnson v.Jones, 44 Ill. 142. In the former case the indemnity was attempted to be givenbefore, and in the latter after the act. See Milligan v. Hovey, 3 Biss.1.
[4] Luther v. Borden, 7 How. 1.
taken from the body of the community, and sworn to inquire into and makepresentment of offences committed within their jurisdiction, and twelve of whomat least must unite in any presentment. The security to accused personsconsists in the popular character of the tribunal, in the fact that they meet,receive, and sift the evidence independently of the prosecuting authorities,and in their own way, and are therefore not likely to be swayed or influencedby the passions, desires, or interests of those in authority, or of malignantprosecutors.
An infamous offence is one involving moral turpitude in the offender, orinfamy in the punishment, or both. It is probable that in this amendment thepunishment was in view as the badge of infamy rather than any element in theoffence itself, and that provision for the punishment of minor offencesotherwise than on indictment, even though they be degrading in their nature,would not be held unconstitutional, provided the punishment imposed was notgreater than that usually permitted to be inflicted by magistrates proceedingin a summary way. But the punishment of the penitentiary must always be deemedinfamous, whether at hard labor or not, and so must any punishment thatinvolves the loss of civil or political privileges.[1]
The exceptional cases mentioned in the amendment are such as come underthe cognizance of military or martial law, and are punished by militarytribunals.
SECTION V. BAIL.
The Constitution. The Eighth Amendment forbids requiringexcessive bail. The bail here intended is that
[1] Ex parte Wilson, 114 U. S. 417; Mackin v. UnitedStates, 117 U. S. 348; United States v. De Walt, 128 U. S. 393; In reMills, 135 U. S. 263, If when an offence was committed in a Territory apresentment by a grand jury was necessary, the crime cannot be prosecutedotherwise by the State formed from the Territory. McCarty v. State, 1Wash. 377. But this clause has no application to crimes committed abroad. In reRoss, 140 U. S. 453.
which is given by persons who are accused of crime, and awaiting trialor final judgment, or who are held for security to keep the peace.
Bail is usually allowed in all cases except those in which the offencecharged is punished capitally or by life imprisonment, and even then it may betaken in the discretion of the court.[1] That reasonable bail shallbe accepted is an admonition addressed to the judgment and conscience of thecourt or magistrate empowered to fix the amount: it is impossible that adefinite rule shall be established by law for particular cases. The principle,however, is this: that any bail is excessive which is greater than is needfulto secure satisfactorily the attendance of the accused for trial or sentence,or the performance of such other obligation as may have been required ofhim.
SECTION VI. INCIDENTS OF THE TRIAL AND
PUNISHMENT.
Venue. One of the most valuable protections which thecommon law gave to accused persons was found in the principle that the trialshould take place within the county where the alleged offence was committed.This protected the accused against being dragged away from his home and hisfriends for trial in such distant and perhaps hostile locality as hisprosecutors might select, and it gave him the benefit on his trial of a goodreputation if he had maintained one among his neighbors, and also rendered moreprobable the attendance of his witnesses, who would usually be found in hisvicinity. A further principle, to which the people were even more greatlyattached, was that the trial should be by jury. Both these were provided for bythe original Constitution, which declared that
[1] United States v. Hamilton, 3 Dall. 17; UnitedStates v. Jones, 3 Wash. C. C. 224. A prisoner is not necessarilyentitled to bail after conviction and while appeal is pending. McKane v.Durston, 153 U. S. 684.
"the trial of all crimes, except in cases of impeachment, shall be byjury; and such trial shall be held in the State where the said crimes shallhave been committed; but when not committed within any State, the trial shallbe at such place or places as the Congress may by law havedirected."[1] The Sixth Amendment made the right more specific, andcorrected a defect as regards the venue: "In all criminal prosecutions theaccused shall enjoy the right to a speedy and public trial, by an impartialjury of the State and district wherein the crime shall have been committed,which district shall have been previously ascertained by law." The importantdifferences in these provisions are, that the earlier did not require the trialto take place in the district of the crime, when the State was divided into twodistricts, nor did it in terms make it necessary that the jury should besummoned from the vicinage, though doubtless that was to be understood. Theamendment says nothing about crimes committed out of the limits of States, andhas no application to them.[2] For the trial of such crimes Congressmay provide a different place from that appointed when the crime wascommitted.[3]
Speedy Trial. A speedy trial cannot be defined moreaccurately than this, that it is a trial brought on as speedily as theprosecution can reasonably be expected or required to be ready forit.[4] A public trial is not of necessity one to which the wholepublic is admitted, but it is one so far open to all as that the prisoner'sfriends and others who may be inclined to watch the proceedings, in order tosee if justice is intelligently and impartially administered, may haveopportunity to do so. There
[1] Const., Art. III. § 2, cl. 3.
[2] United States v. Dawson, 15 How. 467. Theseprovisions do not prevent the trial in a consular court of a crime committed bya sailor on an American ship lying in Japanese waters. In re Ross, 140 U. S.453.
[3] Cook v. United States, 138 U. S. 157.
[4] See Ex parte Stanley, 4 Nev. 113; Creston v. Nye,74 Iowa, 369.
may be and often is justifiable occasion to exclude from a trial thosewho are inclined to attend from idle or morbid curiosity only, and especiallyin cases involving loathsome or disgusting details.[1]
The Jury. By jury in the Constitution is meant a commonlaw jury. This is a tribunal of twelve persons, impartially selected for thepurposes of the trial in accordance with rules of law previously established,and who are to sit together, hear and consider the evidence in the case, andrender their verdict upon the facts as they find them. The jury cannot consistof less than twelve, and a trial by less than that number, even by consent, isa mistrial.[2] To secure impartiality each party is allowed acertain number of peremptory challenges, and as many others as he can showcause for. The jury listen to the evidence in the presence and under thedirection of the court, and they are advised by the court what the law is thatshould govern the case.[3] Formerly it was supposed that the jurymight be punished if they failed to follow in their verdict the instructions ofthe court upon the law; but it has long been settled that the jury may rendertheir verdict freely, and without assigning reasons.[4] If the
[1] People v. Kerrigan, 73 Cal. 222; Grimmettv. State, 22 Tex. App. 36; State v. Brooks, 92 Mo. 542.
[2] Work v. State, 2 Ohio St. 296; Cancemi v.People, 18 N. Y. 128; Brown v. State, 8 Blackf. (Ind.) 561; Harrisv. People, 128 Ill. 585; Thompson v. Utah, 170 U. S. 343. Thereare cases contra, especially as to misdemeanors. "Upon the question ofthe right of one charged with crime to waive a trial by jury, and elect to betried by the court, when there is a positive legislative enactment giving theright so to do, and conferring power on the court to try the accused in such acase, there are numerous decisions by the State courts upholding the validityof such decisions." Shiras, J., in Hallinger v. Davis, 146 U. S. 314,318. See also In re Belt, 159 U. S. 95, 99, and cases cited.
[3] This matter is discussed at length in Sparf and Hansenv. United States, 156 U. S. 51, and the principle laid down that in thecourts of the United States it is the duty of juries in criminal cases to takethe law from the court, and apply it to the facts as they find them.
[4] Penn's Case, 6 State Trials, 951; Bushel's Case,Vaughan's Rep. 135.
accused is convicted against the law, or against the evidence, the judgemay correct the error by granting a new trial. The verdict of the jury must beunanimous; and therefore, if agreement becomes impossible, they must bedischarged, and a new jury summoned.
The Indictment. The Sixth Amendment entitles the accused"to be informed of the nature and cause of the accusation." This information isto be conveyed by the indictment, and the accused must have a copy in ampletime to enable him to be prepared for trial. To make the indictment sufficientfor the purpose, it must contain such a recital of facts as will reasonablyapprise the defendant what the case is which he must meet; and this cannot bedispensed with even by statute.[1] But the unnecessary formalitiesand technicalities of the old forms may be abolished, and no cause forcomplaint be given thereby.[2]
The Evidence. The Fifth Amendment also declares that noperson "shall be compelled in any criminal case to be a witness againsthimself."[3] This was a common law principle, and it has beenincorporated in the Constitution to prevent the possibility of a recurrence tothe inquisitorial proceedings which in arbitrary periods were sometimes had,and which are now admitted in some countries under systems of jurisprudencediffering from our own. Under the laws of the United States and of some of theStates, accused persons are permitted to give evidence on their own behalf; butif one elects not to do BO, the fact is not allowed to be made use of to hisprejudice, since, if it were, this would indirectly force
[1] State v. O'Flaherty, 7 Nev. 153; State v.Corson, 59 Me. 137. "No impracticable standards of particularity should be setup." Evans v. United States, 153 U. S. 584; Rosen v. UnitedStates, 161 U. S. 29.
[2] State v. Learned, 47 Me. 426; People v.Mortimer, 46 Cal. 114; Com. v. Freelove, 150 Mass. 66; Caldwellv. Texas, 137 U. S. 692.
[3] See United States v. Boyd, 116 U. S. 616, cited atlength, ante p. 231.
him to be sworn.[1] By the Sixth Amendment the accused hasthe right to be confronted with the witnesses against him, and to havecompulsory process for obtaining witnesses in his favor. No comment need bemade on this last privilege: the other renders it necessary that theprosecution procure the presence of their witnesses in open court, where thejury may have opportunity to observe them, and where full liberty ofcross-examination may be had.[2]
Counsel. By the Sixth Amendment the accused has theprivilege "to have the assistance of counsel for his defence." This is a commonlaw privilege, much improved and extended in late years, and it is secured withall its accustomed incidents. The counsel must be at liberty to deal with thecase freely, and to comment fearlessly upon the facts, and upon the conduct,purposes, and motives of prosecutors and witnesses, only keeping within thebounds of decorum. The law protects implicitly the confidence which therelation of counsel and client requires, and will not suffer the counsel, evenin the courts of justice, to disclose the confidential com-
[1] People v. Tyler, 36 Cal. 522; State v.Cameron, 40 Vt. 555; Bird v. State, 50 Ga. 585; Wilson v. UnitedStates, 149 U. S. 60. A statute which provides that testimony obtained from awitness shall not be used against him in any criminal proceeding does notdeprive him of his privilege of refusing to testify. Counselman v.Hitchco*ck, 142 U. S. 547 But a statute that declares that in certain classes ofcases no one shall be excused from testifying, and furnishes complete immunityby providing that he shall not be prosecuted or subject to any penalty for anymatter concerning which he testifies, is good, and the witness cannot, relyingon this amendment, refuse to testify. Brown v. Walker, 161 U. S.591.
[2] Jackson v. Commonwealth, 19 Grat. (Va.) 656; Statev. Thomas, 64 N. C. 74. If, on the second trial of a cause, it is foundthat the accused has kept away a witness, his evidence given on the first trialmay be proved by the prosecution. Reynolds v. United States, 98 U. S.145. And the same rule holds, where a witness has died since the former trial.Mattox v. United States, 156 U. S. 237. This clause refers to aprosecution which is technically criminal in its nature. United Statesv. Zucker, 161 U. S. 475.
munications that may have been made to him with a view to pending oranticipated litigation.[1] As the jury in general are judges of thefacts only, the argument of counsel upon the law should be addressed to thecourt;[2] but the jury may be addressed directly, upon both law andfact, in those cases where by statute or constitution they are made judges ofboth.[3]
Punishments. By the Eighth Amendment excessive fines andcruel and unusual punishments are forbidden. What punishment is suited to aspecified offence must in general be determined by the legislature, and thecase must be very extraordinary in which its judgment could be brought inquestion. A punishment may be unlawful either, 1. because it is in excess of,or different from, that prescribed by law;[4] or, 2. because it isnot warranted by the judgment of any competent court; and, possibly, 3.because, though apparently warranted by law, it is so manifestly out of allproportion to the offence as to shock the moral sense with its barbarity, orbecause it is a punishment long disused for its cruelty until it has become"unusual." Nothing more definite can on this point beaffirmed.[5]
[1] Whiting v. Barney, 30 N. Y. 330. Compare Dixonv. Parmelee, 2 Vt. 185. Communications to a State's attorney with a viewto a prosecution are privileged. Vogel v. Gruaz, 110 U. S. 311. See, asto the limits of this rule, cases in Cooley, Const. Lim., 6th ed., p. 407.
[2] United States v. Morris, 1 Curt. C. C. 23; UnitedStates v. Riley, 5 Blatch. 204.
[3] Lynch v. State, 9 Ind. 541. See Commonwealthv. Porter, 10 Met. (Mass.) 263.
[4] Bourne v. The King, 7 Ad. & El. 58; Ex parteLange, 18 Wall. 163. As to whether cumulative punishments are valid, seeBloom's Case, 53 Mich. 597; In re Esmond, 42 Fed. Rep. 827, and casescited.
[5] The infliction of death by electricity is not cruelwithin the meaning of this prohibition. People v. Durston, 119 N. Y.569; In re Kemmler, 136 U. S. 436. A punishment may perhaps be deemed cruel andunusual if from its nature it would be intolerable to one class of people, butcomparatively indifferent to others; as, for example, the punishment ofdepriving a native of China of his hair Ho Ah Kow v. Nunan, 5 Sawy.552.
Twice in Jeopardy. The Fifth Amendment forbids that anyperson shall be subject, for the same offence, to be twice put in jeopardy oflife or limb. This is an old phrase, which has come from times when sanguinarypunishments were common; but the meaning is, that no person shall be put ontrial a second time for the same offence, after he has been tried andconvicted, or acquitted. But some explanation is necessary, since in some casesone may be entitled to the benefits of an acquittal, though a verdict has neverbeen returned.
A person is in jeopardy when he is put upon trial, before a court ofcompetent jurisdiction, upon an indictment or information which is sufficientin form and substance to sustain a conviction, and a jury has been impanelledand sworn to try him.[1] The accused then becomes entitled to averdict that shall forever protect him against any futureprosecution,[2] and a discharge of the jury without his consent isequivalent to an acquittal, except in the few cases in which a dischargewithout a verdict becomes a necessity.[3]
But one is not put in jeopardy by a prosecution in a court which has nojurisdiction of the case;[4] or upon an indictment which is sodefective that no judgment can be given upon it;[5] and the jeopardyonce attached is removed, if the jury are discharged by reason of theimpossibility of agreement, or by consent, or if the case is stopped by thesickness or death of the judge, or a
[1] McFadden v. Commonwealth, 23 Penn St. 12; O'Brianv. Commonwealth, 9 Bush (Ky.), 333. So of arraignment and plea before ajustice who has power to try the case. Boswell v. State, 111 Ind. 47.See Cooley, Const. Lim., 6th ed. pp. 399-401, and cases cited.
[2] Barker v. People, 3 Cow. (N. Y.) 686;Pizaño v. State, 20 Tex. App. 139; Commonwealth v. Hart,149 Mass. 7.
[3] People v. Barrett, 2 Caines (N. Y.), 304; Nolanv. State, 55 Ga. 521.
[4] People v. Tyler, 7 Mich. 161; People v.Hamberg, 84 Cal. 468; State v. Phillips, 104 N. C. 786.
[5] Gerard v. People, 4 Ill. 363; Kohlheimer v.State, 39 Miss. 548 Garvey's Case, 7 Col. 384.
juror,[1] or if, after verdict of conviction, it is set asideon motion of the accused, or judgment upon it is reversed in an appellatecourt, or is arrested for fatal defects in the indictment;[2] in anyof these and similar cases, the accused may be tried a second time. And, ingeneral, whenever in the opinion of the court there is a manifest necessity ofdischarging a jury, that the ends of public justice may be subserved, such astep may be taken and a new trial ordered before another jury;[3]and the defendant is not thereby twice put in jeopardy.[4] But anacquittal, however erroneous, must be a bar, unless a remedy by writ of erroris given to the State by statute, as has been done in someStates.[5] If the accused is acquitted on some counts in anindictment and convicted on others, and the conviction is set aside, he can beput upon trial the second time on those counts only on which he was beforeconvicted, and is forever discharged from the others.[6]
Due Process of Law. The Fifth Amendment also provides thatno person shall be deprived of life, liberty, or property without due processof law. The Fourteenth Amendment extends this prohibition to the States. Themeaning of this protection has been more fully considered in another place; atpresent, it is sufficient to say that, as a protection to life and liberty, itrequires, before either can be taken away under legal proceedings, that thereshall be a prosecution according to the forms
[1] Nugent v. State, 4 Stew. & Port. (Ala.) 72;Hector v. State, 2 Mo. 166; State v. Emery, 59 Vt. 84.
[2] Casborus v. People, 13 Johns. (N. Y.) 351. A trialin a higher court on defendant's appeal does not put him twice in jeopardy.Commonwealth v. Downing, 150 Mass. 197.
[3] Thompson v. United States, 155 U. S. 271; Simmonsv. United States, 142 U. S. 148.
[4] Nor is he because a statute provides severer punishmentfor second offence than for first. Moore v. Missouri, 159 U. S. 673.
[5] State v. Tait, 22 Iowa, 140.
[6] Campbell v. State, 9 Yerg. 333; Barnett v.People, 54 Ill. 325.
of law, resulting in conviction after public trial, and opportunity tobe heard, and followed by judgment applying the law which the convicted partyviolated.
Contempts of Authority. It sometimes becomes essential, inthe course of their discharge of public duties, that legislative bodies andcourts should punish summarily those who disturb their proceedings, or whor*fuse or neglect to perform any duty required of them in respect thereto. Suchconduct is called a contempt of authority, and the power to punish it isinherent in such bodies.[1] But as the tribunal that punishes willalso be the tribunal whose just authority has been contemned, the power is oneto be exercised very sparingly, and only when the necessity plainly appears.When inferior courts punish for contempts, their records must show that theparty is convicted of conduct which is in fact a contempt;[2] andthe conviction will be void if the finding is wanting. A different rule appliesin the courts of general jurisdiction.[3] In tribunals of all sortsand grades the party accused of contempt is entitled to ahearing.[4] Bodies having quasi judicial and legislativepowers, like boards of supervisors and city councils, cannot punish forcontempts.[5]
[1] Anderson v. Dunn, 6 Wheat. 204; Robinson, Exparte, 19 Wall. 505; In re Chapman, 166 U. S. 661. But see Kilbourn v.Thompson, 103 U. S. 168. That the rule applies to inferior courts, see In reDeaton, 105 N. C. 59. Compare Ex parte Kerrigan, 33 N. J. 344; Re Cooper, 32Vt. 253. It does not extend to court commissioners nor notaries. Ex partePerkins, 29 Fed. Rep. 900; Burtt v. Pyle, 89 Ind. 398; Puterbaughv. Smith, 131 Ill. 199.
[2] Bachelder v. Moore, 42 Cal. 412; Turner v.Commonwealth, 2 Met. (Ky.) 616.
[3] Bradley v. Fisher, 13 Wall. 335; Cuddy,Petitioner, 131 U. S, 280. [4] Ex parte Bradley, 7 Wall. 364; Savin,Petitioner, 131 U. S. 267.
But if the contempt is in the immediate presence of the court, it may bepunished summarily without notice or opportunity for defence. Ex parte Terry,128 U. S. 289.
[5] Whitcomb's Case, 120 Mass. 118.
CHAPTER XVI.
PROTECTION TO CONTRACTS AND PROPERTY.
SECTION I. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.
The Constitution. Among the powers forbidden to the Statesby the Constitution is the power to pass any law impairing the obligation ofcontracts.[1] The prohibition passed almost without comment at thetime, and in the careful and very full discussions of the Federalist it isbarely alluded to twice; first, as a provision to prevent aggressions on therights of those States whose citizens would be injured by suchlaws;[2] and, second, as being a "constitutional bulwark in favor ofpersonal security and private rights" against laws which are "contrary to thefirst principles of the social compact, and to every principle of soundlegislation."[3] Apparently nothing was in view at the time exceptto prevent the repudiation of debts and private obligations, and the disgrace,disorders, and calamities that might be expected to follow. In the constructionof this provision, however, it has become one of the most important, as well asone of the most comprehensive, in the Constitution; and it has been the subjectof more frequent and more extended judicial discussion than any other. Onlybrief reference can be made here to the principles which the decisions havesettled.
[1] Const., Art. 1 § 10.
[2] Federalist, No. 7, instancing the then recent laws ofRhode Island in their results on the neighboring States.
[3] Federalist, No. 44.
What is a Law? The prohibition is aimed generally at thelegislative power of the State. A state constitution is, therefore, a lawwithin the meaning of this clause.[1] But the law need not be in theform of statute or constitution. It may be a municipal by-law or an enactmentfrom whatever source originating, provided the State gives it the force oflaw.[2] And the settled judicial construction of a constitution orstatute, as it enters into the statute or constitution, cannot be changed so asto impair the obligation of a contract made with reference to it.[3]But the acts of administrative officers are not covered by this provision, anda municipal ordinance which involves administrative, not purely legislativepower, is not a law within its terms.[4]
What are Contracts? Contracts are either executory orexecuted. An executory contract is one whereby a party takes upon himself theobligation to do or abstain from doing some particular thing. An executedcontract is one whereby an obligation assumed is performed, and the transactionperfected; as a deed of conveyance perfects a sale of lands. The Constitutionmakes no distinction between these two classes of contracts, and the latter asmuch as the former is within its protection. It is, therefore, not within thepower of legislation, after a conveyance has been made, to annul it on anypretence; since this would not merely impair the obligation of the contract,but would destroy it entirely.[5]
Obligation of the Contract. The obligation of a con-
[1] New Orleans Gas Co. v. La. Light Co., 115 U. S.650; Fink v. Jefferson Police Jury, 116 U. S. 131.
[2] Williams v. Bruffy, 96 U. S. 176.
[3] Douglass v. Pike Co., 101 U. S. 677; Louisianav. Pilsbury, 105 U. S. 278; Ray v. Gas Co., 138 Penn. 576.Compare Wood v. Brady, 150 U. S. 18.
[4] New Orleans Water Works v. La. Sugar Co., 125 U.S. 18; Hanford v. Davies, 163 U. S. 273.
[5] Fletcher v. Peck, 6 Cranch, 87, 133; FranklinSchool v. Bailey, 20 Atl. Rep 820 (Vt). A charitable trust is acontract, so that the State cannot change its administration without the assentof all the parties who created it. Cary Library v. Bliss, 151 Mass.364.
tract consists in its binding force on the party making it, which thelaw at the time recognizes, and for the disregard of which it gives a remedy.It involves, therefore, first, the promise or assurance of the party, and,second, the sanction of the law, whereby the promise or assurance becomes aneffectual contract.[1] No promise or assurance can, therefore,constitute a contract, unless the law lends its sanction; and this in somecases it withholds. For example, if there is no consideration for an executorycontract, this in law is a mere nude pact, and invalid; and so is any promisewhich is illegal, either in its consideration, or in the purpose to beaccomplished by it.[2]
What Contracts intended. The contracts intended by theConstitution are all those over which the State can have authority, and which,but for this provision, might be reached by state law. The contracts of theState itself are therefore included, as much as those of individuals, and aState is thus precluded from recalling its own grants, as had frequently beendone on various pretexts in England.[3] Neither can a State modify,except by mutual consent, any provision of a pre-existing contract into whichit may have entered.[4] For example, if a State, being the owner ofthe capital stock of a bank, provides by law that its bills shall be receivedin payment for all debts owing to the State, the provision is a promise tothose who shall receive the bills, that they shall be thus accepted for statedues; and this promise the State cannot recall, to the prejudice of any whopreviously had become holders of the bills.[5] And the same ruleapplies
[1] Bronson v. Kinzie, 1 How. 311; McCracken v.Hayward, 2 How. 608; Ogden v. Saunders, 12 Wheat. 213, 259, 302,318.
[2] Meacham v. Dow, 32 Vt. 721; Piatt v.People, 29 Ill. 54; Marshall v. Railroad Co, 16 How. 314.
[3] Fletcher v. Peck, 6 Cranch, 87; Van Home v.Dorrance, 2 Dall. 304; Huidekoper v. Douglas, 3 Cranch, 1.
[4] New Jersey v. Wilson, 7 Cranch, 164.
[5] Woodruff v. Trapnall, 10 How. 190; Furmanv. Nichols, 8 Wall 44; Keith v. Clark, 97 U. S. 464.
where the State has issued bonds whose coupons it has agreed to receivefor taxes.[1] So if a State, or one of its municipalities, contractsa debt and issues obligations therefor, and these obligations come into thehands of foreign holders who are not subject to State taxation, a subsequentstatute imposing a tax upon them, and directing that the amount thereof shallbe deducted in making payment, is void as to the foreign holders, becausewithholding something to which they are entitled, and to that extent impairingthe obligation of the contracts.[2]
Statutes. A statute, public or private, is not a contract.It is an expression in due form of the will of the State, as to what shall bethe law on the subject covered by it; and the State would be deprived of itssovereignty, and crippled in the exercise of its essential functions, if itwere not at liberty to change its laws at discretion. But there are exceptionsto this general rule: for a State may give to its contracts such form as it maychoose to express its assent in; and this is sometimes the form of a statute.The grants of land by a State are frequently made by statute, and so are grantsof special privileges.[3] Bounties are sometimes offered in thisway; and when the terms of the offer are accepted, a contract exists; but abounty law may be repealed at any time as to anything that may accruethereafter.[4]
[1] Hartman v. Greenhow, 102 U. S. 672; Poindexterv. Greenhow, 114 U. S. 270; McGahey v. Virginia, 135 U. S. 662.See also Louisiana v. Jumel, 107 U. S. 711.
[2] Murray v. Charleston, 96 U. S. 432. And see StateTax on Foreign Held Bonds, 15 Wall. 300.
[3] A general law which is a standing offer of land becomes acontract if the offer is accepted and payment made, so that the certificate ofsale cannot be cancelled under a new law. Pennoyer v. McConnaughy, 140U. S. 1. See also Houston, &c. By. Co. v. Texas, 170 U. S. 243.
[4] Welch v. Cook, 97 U. S. 541; Pennie v.Reis, 132 U. S. 464; United States v. Connor, 138 U. S. 61. A statutoryprovision for becoming a corporation is not a contract. Schurz v. Cook,148 U. S. 397.
Offices. A public office is a public trust: theappointment or election to it is a delegation of the trust to the personappointed or elected for the time being. But it is not a contract, and neitherthe office nor its emoluments can be claimed as matter of right, as againstsubsequent legislation abolishing the one or reducing the other.[1]Nevertheless, if in either of these particulars the State constitution has madeprovisions, it is not competent by law to change them, for the manifest reasonthat the constitution in that case limits the legislative power in that regard.For example, the President's term of office is four years, and his compensationcan neither be increased nor diminished during his term;[2] and inboth these particulars the power of Congress over his office is excluded.
Statutory Privileges, The grant of a statutory privilegeis not a contract, but it resembles a license, and is always revocable, exceptthat the party cannot be deprived of benefits already enjoyed under it. Underthis head come exemptions from military and jury duty, exemptions of propertyfrom taxation or from sale on execution,[3] and licenses to engagein any business the carrying on of which is not open to the generalpublic.[4 ]And in general it may be said that any privilegewhich
[1] Butler v. Pennsylvania, 10 How. 402; Headv. University, 19 Wall. 526; Crenshaw v. United States, 134 U. S.99; United States v. McDonald, 128 U. S. 471. But the State may make abinding contract, though an official relation is thereby created. Hallv. Wisconsin, 103 U. S. 5. And if services are rendered in an office, animplied contract is created to pay for them, which cannot be impaired bysubsequent legislation. Fisk v. Jefferson Police Jury, 116 U. S.131.
[2] Const., Art. II. sec. 1, § 7.
[3] Christ Church v. Philadelphia. 24 How. 300; EastSaginaw Salt, &c. Co. v. East Saginaw, 13 Wall. 373; Shinerv. Jacobs, 62 Iowa, 392; Bull v. Conroe, 13 Wis. 233; Grand Lodgev. New Orleans, 166 U. S. 143.
[4] Calder v. Kirby, 5 Gray (Mass.), 597; Fellv. State, 42 Md. 71. See Beer Co. v. Massachusetts, 97 U. S. 25;Stone v. Mississippi, 101 U. S. 814; Douglas v. Kentucky, 168 U.S. 488.
is obtained under the general law of the State may be taken away by arepeal or modification of the law.[1]
Charter Contracts. In the Dartmouth College Case, in whichthe legislature undertook to remodel the charter of an educational institution,in most important particulars, without the consent of the corporators, it wasdecided that the charter was a contract, which the State was supposed to grantin consideration of expected benefits to accrue to the general public, andwhereby the State in legal contemplation promised that the corporators shouldenjoy the privileges and franchises granted. The conclusion was that theamendatory act was invalid, as impairing the obligation of thecontract.[2] The same doctrine has been reasserted and reaffirmed inmany cases since.[3] Of course, a total repeal of the charter wouldbe a still plainer case.
Where, however, by the charter the legislature reserves the right toalter, amend, or repeal it, it is plain that no such consequence can follow,because then an alteration, amendment, or repeal is in accordance with thecontract, and not hostile to it. So if by the constitution of the State, or byits general laws in force when the charter was granted, it is provided that allcharters shall be subject to legislative control and alteration, this provisionin legal effect becomes a part of the charter, and therefore a part of thecontract.[4]
[1] Beers v. Arkansas, 20 How. 527. When a charter ingeneral terms authorizes a company to do things unnecessary to the main objectof the grant, and not directly in contemplation of the parties, the powerremaining unexercised may be treated as a license, and be revoked if thepossible exercise of such power is found to conflict with public interest.Pearsall v. Great Northern Ry., 161 U. S. 647.
[2] Dartmouth College v. Woodward, 4 Wheat. 518.
[3] The Binghampton Bridge Case, 3 Wall. 51; Farringtonv. Tennessee, 95 U. S. 679; Stone v. Mississippi, 101 U. S.814.
[4] Murray v. Charleston, 96 U. S. 432, 448; RailroadCo. v. Georgia, 98 U. S. 359; Railroad Companies v. Gaines, 97 U.S. 697. So if the power to amend and repeal is conferred after the corporationis char-
Municipal Corporations. A grant of rights or privileges toa municipal body or corporation for public purposes is not a contract, but alaw for the public good. Such bodies and corporations are created as necessaryconveniences in government, and they must hold their powers and privilegessubject to legislative modification and recall at all times. Therefore thegrant to a town of the right to establish and maintain a ferry across a publicriver may be revoked,[1] the territorial limits of the town may bereduced, particular powers, like the power to tax, or the power to buy in landsfor unpaid assessments, may be taken away or changed at discretion, and soon.[2] But a municipal corporation is entitled to protection in itsproperty as a natural person is, whether it comes from the State or from anyother source.[3]
Essential Powers of Government. A State cannot by contractbargain away any of the essential powers of sovereignty, so as to depriveitself of the ability to employ them again and again, as the public exigenciesshall seem to require. For example, it cannot by granting land for cemeterypurposes preclude itself from forbidding the further use of the land for thosepurposes when, by reason of the increase of population in the vicinity, it hasbecome, or threatens to become, a nuisance;[4] and it cannot by arailroad charter deprive itself
tered, provided it accepts new legislative acts passed after thelegislature is given the new power. Pennsylvania R. R. Co. v. Duncan,111 Penn. St. 352; Shields v. Ohio, 95 U. S. 319.
[1] East Hartford v. Bridge Co., 10 How. 511.
[2] Barnes v. District of Columbia, 91 U. S. 540;Laramie Co. v. Albany Co., 92 U. S. 307; Williamson v. NewJersey, 130 U. S. 189; Essex Board v. Skinkle, 140 U. S. 334.
[3] Town of Pawlet v. Clark, 9 Cranch, 292; Terrettv. Taylor, 9 Cranch, 43; State v. Haben, 22 Wis. 660; Groganv. San Francisco, 16 Cal. 590; Dillon, Mun. Corp., § 39 etseq.; Mount Hope Cemetery v. Boston, 158 Mass. 509.
[4] Brick Presbyterian Church v. New York, 5 Cow. 538.See Fertilizing Co. v. Hyde Park, 97 U. S. 659. The soil under navigablewaters is held by the people of the State in trust for the common use.
of the power to establish reasonable regulations under which therailroad business shall be carried on.[1] So also the State cannotdeprive itself of the right to appropriate private property to public usesunder the eminent domain, this being a necessary power ingovernment,[2] or of the right to raise a revenue by an exercise ofthe power to tax.
It is nevertheless held that the State may, for a consideration, imposeupon itself the obligation not to tax certain subjects, otherwise taxable, forsome definite period, or even indefinitely; it being presumed in that ease thatthe consideration received by the State is equivalent to that which might havebeen derived from the exercise of the customary power to tax.[3] Noris it essential that the consideration shall be a direct pecuniary return, orone that can be shown by evidence to be an equivalent; it is sufficient thatthe State has apparently found it for its interest to assume the obligation,and that some one else has acted in reliance upon it. In the leading case theState made a grant of lands, agreeing not to tax them in the hands of thegrantees; and this agreement was held to be an irrevocableexemption.[4] In other cases the State, in granting a charter ofincorporation, has stipulated that the taxation of the corporation shall onlybe at a certain rate, or on a certain basis; and this also isirrevocable.[5] But an exemption from
and as a portion of their sovereignty, and any act concerning its useaffects the public welfare. The legislature cannot by irrepealable contractconvey such property in disregard of the public trust. Illinois Cen. R. R. Co.v. Illinois, 146 U. S. 387.
[1] Thorpe v. Railroad Co., 27 Vt. 140; Railroad Co.v. Jacksonville, 67 Ill. 37. See Butchers' Union Co. v. CrescentCity Co., 111 U. S. 746.
[2] Cooley, Const. Lim., 6th ed., p. 339.
[3] New Jersey v. Wilson, 7 Cranch, 164; Pacific R. R.Co. v. Maguire, 20 Wall. 36; University v. People, 99 U. S.309.
[4] New Jersey v. Wilson, 7 Cranch, 164.
[5] Piqna Bank v. Knoop, 16 How. 369; Railroad Co.v. Reid, 13 Wall. 264; New Orleans v. Houston, 119 U. S. 265.
taxation can never be granted as against a provision in the Stateconstitution which requires all property to be uniformly taxed.[1]And as the power to tax is vital, and it is of the highest importance that itshould always remain unrestricted and in full force, the presumption againstany intention to hamper or restrict it must be strong in every case, and canonly be overcome by the employment of very clear terms to indicate thatintent.[2] And in any case an exemption from taxation, obviouslymade as a mere favor, may be terminated at the will of the State at anytime.[3] In the absence of express statutory direction, or ofimplication by necessary construction, provisions in a charter in restrictionof the right of a State to regulate the affairs of a corporation or tax itsproperty do not pass to a new corporation succeeding by purchase orconsolidation to the property and other franchises of the firstcorporation.[4]
Exclusive Privileges. It is settled by the authoritiesthat the State may grant exclusive privileges for many purposes; as, forexample, to build a toll-bridge at a certain point, to construct a toll-roadbetween certain places, to establish a certain ferry, to supply water and gasto a city, and the like; and these grants, when made to individuals or privatecorporations, are contracts, and bind the State.[5] But, as in thecase of exemptions
[1] Railroad Companies v. Games, 97 U. S. 697.
[2] Christ Church v. Philadelphia, 24 How. 300; Gilmanv. Sheboygan, 2 Black, 510; Chicago, &c. Ry. Co. v. Guffey,120 U. S. 569; Tennessee v. Whitworth, 117 U. S. 139; Covington, &c.Turnpike Co. v. Sandford, 164 U. S. 578.
[3] East Saginaw Salt, &c. Co. v. East Saginaw, 13Wall. 373; Home Ins. Co. v. City Council, 93 XL S. 116, Welch v.Cook, 97 U. S. 541.
[4] Norfolk & Western R. R. Co. v.Pendleton, 156 U. S. 667; St. Louis & San Francisco Ry. v. Gill, 156U. S. 649. So words in a charter granting to one corporation the privileges,etc. of another will not grant to the former an immunity from taxation enjoyedby the latter. Phoenix Insurance Co. v. Tennessee, 161 U. S. 174.
[5] New Orleans Gas Co. v. La. Light Co., 115 U. S.650; New Orleans Water Works v. Rivers, Id. 674; Louisville Gas Co.v. Citizens' Gas Co., Id. 683. Compare Stein v. Bienville WaterCo., 141 U. S. 67.
from taxation, the intent of the State to restrict or hamper its powerfor the future is not to be lightly assumed, and it should appear withreasonable certainty in the legislation, and the grant will be strictlyconstrued as against the grantees. This is reasonable, not only when thesubject is regarded from the standpoint of State interest, but also becauseexclusive privileges are to some extent invidious and very justly obnoxious,and it is not reasonable to suppose that the State would grant them, exceptwhen some important public purpose or some necessary public convenience cannotbe accomplished or provided without making the grant exclusive. Therefore, whenthe owners of a franchise under State grant contest the rights of the State tomake a second grant which would compete with it, every doubt must be resolvedin favor of their claim before it can be sustained, and every resolution whichsprings from doubt is against the claim.[1] Moreover, the grant willnever be extended by construction beyond the plain terms in which it is made. Afamiliar instance is where the owners of a ferry franchise, or of a franchiseto take toll for passing over a bridge, contest the right of the State to granta second franchise, the enjoyment of which would diminish their own profits. Asagainst them, the presumption is that the State retained the right to licenseas many crossings as should be found needful or desirable.[2]
But even the agreement of the State that the grant shall be exclusivecannot prevent the making of another, subject to the obligation to providecompensation, under the principles governing the law of eminent domain.
[1] Pennsylvania R. R. Co. v. Canal Commissioners, 21Penn. St. 9, 22. See the discussions in Fertilizing Co. v. Hyde Park, 97U. S. 659, and in Hamilton Gas Light Co. v. Hamilton City, 146 U. S.258.
[2] Charles River Bridge v. Warren Bridge, 11 Pet.420; Turnpike Co. v. State, 3 Wall. 210; Wheeling, &c. Co. v.Wheeling Bridge Co, 138 U. S. 287; Rockland W. Co. v. Camden, &c.Co., 80 Me. 544.
An exclusive privilege only gives to the franchise additional value asproperty; and all property is subject to be taken and appropriated to publicuses on making payment therefor. Therefore, notwithstanding the existence of anexclusive grant to construct a railroad between two named places, or a bridgeover a river at a certain locality, the State has, and must have, the power tomake conflicting grants when the public needs seem to require them; and theprogress of the State could or might be embarrassed or stayed by improvident ordishonest State concessions if this were otherwise.[1] The new grantin such case does not impair the obligation of the other, but the obligation isrecognized in giving compensation for the exclusive privilege.
Police Regulations: General Principle. All property andall rights within the jurisdiction of a State are subject to the regulationsand restraints of its police power, except so far as they are removed therefromby the express provisions or implications of the FederalConstitution.[2] The police power may be defined in general terms asthat power which inheres in the legislature to make, ordain, and establish allmanner of reasonable regulations and laws whereby to preserve the peace andorder of society and the safety of its members, and to prescribe the mode andmanner in which every one may so use and enjoy that which is his own as not topreclude a corresponding use and enjoyment of their own byothers.[3]
Interference with Federal Powers. In a preceding
[1] West River Bridge Co. v. Dix, 6 How. 507; EasternR. R. Co. v. Boston, &c. R. R. Co., 111 Mass. 125; Alabama, &c.R. R. Co. v. Kenny, 39 Ala. 307; Long Island Water Supply Co. v.Brooklyn, 166 U. S. 685.
[2] United States v. De Witt, 9 Wall. 41; UnitedStates v. Reese, 92 U. S. 214; Mugler v. Kansas, 123 U. S. 623;Giozza v. Tiernan, 148 U. S. 657.
[3] License Cases, 5 How. 504; License Tax Cases, 5 Wall.462; Munn v. Illinois, 94 U. S. 113, 124; Barbier v. Connolly,113 U. S. 31.
chapter cases have been mentioned in which attempts by the States toexercise this power have been held invalid, because they interfered with theproper exercise by Congress of its power in the regulation ofcommerce.[1] More often State regulations have been questioned onthe ground that, under the pretence of regulation, they took away rights whichwere promised and assured by contract, and thereby impaired the obligation ofthe contract. Regulation of Charter Contracts. It is notquestioned that all contract rights are subject to State regulation, as allproperty is. Therefore, though a railroad company has a charter not subject toamendment or repeal by the legislature, it takes it nevertheless subject tosuch changes as may be made in the general laws and constitution, unless as tothe subject-matter involved the charter constitutes a contract exempting thecorporation from the operation of such legislation.[2] And in theconduct of business under the charter, the company must conform to such rulesand regulations as the State may establish for the safety and protection ofthose being carried by or having transactions with it. Therefore the companymay be required to fence its track as a proper precaution, as well against thetrains being thrown from the track, as against the destruction or loss ofcattle,[3] and to fix periodically its charges and keep them postedfor the information of the public.[4] The following are alsoreasonable regulations: requiring all trains to check their speed at exposedplaces;[5] to carry impar-
[1] Ante, pp. 69-79.
[2] Pennsylvania R. R Co. v. Miller, 132 U. S. 75.Here after the charter was granted, which gave power to condemn land, aconstitutional amendment provided that compensation should be made for injurycaused in the course of public improvements to land not actually taken forpublic use, and it was held applicable to the corporation.
[3] Thorpe v. Railroad Co., 27 Vt. 140.
[4] Railroad Co. v. Fuller, 17 Wall. 560.
[5] Chicago, &c. R. R. Co. v. Haggerty, 67 Ill.113; Haas ?>. Railroad Co., 41 Wis. 44; Pennsylvania R. R. Co. v.Lewis, 79 Penn. St. 33.
tially for all persons;[l] to permit other roads to cross therailroad track, and to share with them the expense of thecrossing;[2] to ring a bell or sound a whistle at crossings, or tostation a flagman at such, or any other dangerous places;[3] torespond in damages in case the death of any person shall be caused by thecompany's wrongful act, neglect, or default;[4] and so on. Acharter, then is to be deemed granted upon condition that the corporation shallbe subject to such reasonable regulations as to the conduct of its business asthe legislature may prescribe, provided they do not materially interfere withthe enjoyment of its privileges, and only serve to secure the ends for which itis organized.[5] On the "other hand, if the regulation assumes totake from the company some substantial right which its charter confers, it willbe void. Instances are, the taking away a right to exact toll, which had beenclearly given;[6] imposing upon the company new liabilities forsomething it was expressly permitted to do;[7] and soon.[8] The limit to the exercise of the police power over chartercontracts is substantially this: the regulations must have reference to thecomfort, safety, or welfare of society; they must not be in conflict with anyof the provisions of the charter, and they
[1] Chicago, &c. R. R. Co. v. People, 67 Ill.11.
[2] Fitchburg, &c. R. R. Co. v. Grand Junction R.R. Co., 1 Allen (Mass.), 552.
[3] Toledo, &c. R. R. Co. v. Jacksonville, 67 Ill.37.
[4] Steamboat Co. v. Barclay, 30 Ala. 120; Boston,&c. R. R. Co. v. State, 32 N. H. 215.
[5] Chicago Life Ins. Co. v. Needles, 113 U. S. 574;Baltimore v. Baltimore Trust Co., 166 U. S. 673; Eagle Ins. Co.v. Ohio, 153 U. S. 446.
[6] Pingrey v. Washburn, 1 Aik. (Vt.) 264.
[7] People v. Plank Road Co., 9 Mich. 285; Baileyv. Railroad Co., 4 Harr. (Del.) 389.
[8] See Washington Bridge Co. v. State, 18 Conn. 53;Philadelphia, &c. R. R. Co. v. Bowers, 4 Hous. (Del.) 506. Arailroad company cannot forty years after its construction be compelled to putin at its own cost residence crossings for adjoining proprietors. Peoplev. Ry. Co., 79 Mich. 471. Compare N. Y. & N. E. R. R. Co. v.Bristol, 151 U. S. 556.
must not, under the pretence of regulation, take from the corporationany of the essential rights and privileges which the charter confers. In short,they must be regulations in fact, and not amendments of the charter inabridgment of the corporate franchises.[1] Yet under the settledrule that "the legislature cannot bargain away the public health or the publicmorals," the State may in the exercise of its police power take away the rightto carry on a business which in its judgment endangers public health or morals,although the business is done by a corporation chartered for thatpurpose.[2] And where the charter reserves to the legislature thepower to alter, amend, or repeal it, or where it is granted under a Stateconstitution which expressly saves to the legislature that right, any changewhatever in the contract by legislative power is no impairment of thecontract.[3] A legislature having such a power may thereforeexercise control over the charges of railroad companies,[4]though
[1] Cooley, Const. Lim., 6th ed., 710, and cases cited. SeeBeer Co. v. Massachusetts, 97 U. S. 25.
[2] Beer Co. v. Massachusetts, 97 U. S. 25;Fertilizing Co. v. Hyde Park, 97 U. S. 659; Stone v. Mississippi,101 U. S. 814; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746;New Orleans Gas Co. v. La. Light Co., 115 U. S. 650; Douglas v.Kentucky, 168 U. S. 488.
[3] See the right of amendment with its limitationsconsidered in Sinking Fund Cases, 99 U. S. 700. In Greenwood v. FreightCo., 105 U. S. 13, the legislature granted, upon compensation made, thefranchises of one corporation to another. In Spring Valley Water Worksv. Schottler, 110 U. S. 347, a pre-existing right of a company to have avoice in fixing its rates for service was taken away. See also Sioux City Ry.Co. v. Sioux City, 138 U. S. 98; Hamilton Gas Light Co. v.Hamilton City, 146 U. S. 258.
[4] Chicago, &c. R. R. Co. v. Iowa, 94 U. S. 155.This principle has been applied even to cases where the power to amend andrepeal had not been expressly reserved, and where power was given to thecompany by its charter to fix its rates. Railroad Commission Cases, 116U.S.307; Georgia Banking Co. v. Smith, 128 U.S. 174. "A grant in generalterms of authority to fix rates is not a renunciation of the right oflegislative control so as to secure reasonable rates.... It is only where thereis an unmistakable manifestation of a purpose to place the unrestricted rightin the corporation to determine rates ... that the
it cannot fix rates or empower a commission to do so finally withoutopportunity for a judicial hearing on the question of theirreasonableness.[1]
Miscellaneous Cases. Some police regulations have beencontested, as amounting to a virtual destruction of property; for example,those prohibiting the sale of spirituous or malt liquors as a beverage, andthose establishing limits in cities within which buildings of wood shall not beconstructed or repaired. But there is no doubt that the legislature in itsdiscretion may establish such regulations.[2]
Implied Contracts. Implied contracts, as well as thosemade in express terms, are within the protection of theConstitution.[3] Under this head may be classed judgments anddecrees, and all statutory liens and rights of redemption when they spring fromor originate in contracts, and are in accordance with the law when the contractwas made.[4]
State Control of Remedies. What is said further onrespecting the control of remedies by the State is applicable as well tocontracts as to other rights. But the State must always give some remedy, andit must be substantially the equivalent of that which was provided by law whenthe contract was made. The withdrawal of the remedy for a time by stay laws isan impairment of the obligation of contracts.[5] So is any lawwhich, under
power ... to interfere can be denied." Stone v. Yazoo, &c. R.R. Co., 62 Miss. 607. But the State cannot control the rates charged forinterstate carriage. Wabash, &c. Ry. Co. v. Illinois, 118 U. S.557.
[1] Chicago, &c. Ry. Co. v. Minnesota, 134 U. S.418; Covington, &c. Turnpike Co. v. Sandford, 164 U. S. 578; Smythv. Ames, 169 U. S. 466; and see ante, p. 261.
[2] License Cases, 5 How. 504; Mugler v. Kansas, 123U. S. 623; Commonwealth v. Intoxicating Liquors, 115 Mass. 153;Insurance Co. v. Brown, 11 Mich. 265. See Transportation Co. v. Chicago,99 U. S. 635.
[3] Fisk v. Jefferson Police Jury, 116 U. S. 131.
[4] Gunn v. Barry, 15 Wall. 610.
[5] Cooley, Const. Lim., 6th ed., p. 354, and casescited.
the pretence of changing the remedy, undertakes to compel the party toaccept something different in the place of that for which he contracted; as,for example, laud at an appraisal in the place of money.[1] So isany law which gives a preference in payment of one creditor over another, whichthe law when their contracts were made did not give, even though the preferredcreditor is the State itself.[2] So is any law which takes away fromthe creditor any substantial right which the contract assured to him; forexample, the right to the possession of mortgaged lands until the mortgage debtis paid.[3] So is any law which so far increases the exemptions fromexecutions issued on judgments as seriously to impair the value of the remedy,and reduce the probabilities of collection.[4] Even the power to taxmay sometimes become an important element in the obligation of a contract.Thus, if a city contracts debts at a time when it has by law ample power tolevy taxes for their payment, the creditor has a right to rely upon this poweras the means by the employment of which his debt shall be satisfied, and theState cannot afterwards withdraw the power or so restrict it as to renderpayment by means thereof impossible, and an act for that purpose would beinoperative as to existing debts.[5]
Reasonable limitation laws a State may always pass, and make themapplicable to existing contracts.[6] So the
[1] McCracken v. Hayward, 2 How. 608.
[2] Barings v. Dabney, 19 Wall. 1.
[3] Mundy v. Monroe, 1 Mich. 68. Or the right to applythe coupons of State obligations in payment of State taxes. Poindexterv. Greenhow, 114 U. S. 270, and cases cited.
[4] Gunn v. Barry, 15 Wall. 610. Time of redemptioncannot be shortened or lengthened after tax sale. Hull v. State, 29 Fla.79. See also Cooley, Const. Lim., 6th ed., 353.
[5] Von Hoffman v. Quincy, 4 Wall. 535; Galena v. Amy,5 Wall. 705; Bronghton v. Pensacola, 93 U. S. 266; Nelson v. St.Martin's Parish, 111 U. S. 716.
[6] Bell v. Morrison, 1 Pet. 351; Terry B. Anderson,95 U. S. 628; and may reduce the rate of interest on judgments obtained beforethe passage of the act. Morley v. Lake Shore Ry. Co., 146 U. S. 162.
State may make and enforce insolvent laws when there is no nationalbankrupt law in existence, and under these may discharge debtors from furtherliability on their contracts on such terms and conditions as shall bereasonable. But such laws can only be applied to contracts subsequently madewithin the State, and between residents thereof.[1]
Contracts of Guaranty. Contracts of suretyship or ofsecondary liability are as much within the protection of the Constitution asare the principal contracts which they secure, or on which they depend.Therefore, where the law makes stockholders in a corporation liable for thecorporate debts, the liability, so far as existing debts are concerned, is onewhich cannot be taken away or reduced by a change in the law.[2]But, penalties imposed by statute may be released by statute at any time beforethey are actually recovered.[3]
Objectionable Considerations. The fact that a contract hadits origin in a consideration now recognized as immoral and insufficient isimmaterial, provided it was sufficient under the law at the time. Therefore,contracts for the purchase price of slaves were enforced after emancipation,notwithstanding the State by its constitution had provided that they should notbe; the States having no more power to impair the obligation of a contract byconstitutional provision than by any other law.[4]
Adding to Contracts. It is as incompetent to import newterms into a contract as it is to take away or detract from the force of thosealready there. But this point will receive some attention hereafter.
[1] Ogden v. Saunders, 12 Wheat. 273; Baldwinv. Hale, 1 Wall. 223; Carbee v. Mason, 64 N H. 10.
[2] Ochiltree v. Railroad Co., 21 Wall. 249.
[3] Confiscation Cases, 7 Wall. 454; United States v.Tynen, 11 Wall. 88.
[4] White v. Hart, 13 Wall. 646. See Delmar v.Insurance Co., 14 Wall. 661, Marsh v. Burroughs, 1 Woods, 463; Swainv. Seamans, 9 Wall. 254.
Is Congress restrained? That Congress should not have beenprohibited from impairing the obligation of contracts, as the States were, maywell excite some surprise. It was certainly never intended that Congress underany circ*mstances should exercise that tyrannical power, and it probably neveroccurred to any one as possible that it would ever attempt to do so. While, ifit should attempt it, in the case of private contracts, the act, it would seem,might well be held not to be legitimate legislation, and therefore incompetentand void,[1] yet the clause is considered not to apply tocongressional legislation.[2] In respect to contracts by thegovernment itself, so long as they remain executory, if it shall choose not toperform them, there can be no redress. A government cannot be compelled to payits debts against its will by any process short of war or of forcible reprisal.And Congress may indirectly impair the obligation of private contracts, throughits power to debase the currency and to establish and change the law of tender,as it did to some extent in the act making treasury notes a lawful tender inpayment of pre-existing debts. For such wrongs only the political remedies canbe available.
SECTION II. PROTECTION TO PROPERTY.
The Constitution. The Fifth Amendment to the Constitutionprovides that no person shall be deprived of property without due process oflaw. This provision is a restraint upon the Federal powers only. The FourteenthAmendment supplements this by providing that no State shall deprive any personof property without due process of law.
What is Property? That is property which is recoguized assuch by the law, and nothing else is or can be
[1] See opinion in Gunn v. Barry, 15 Wall. 610.[2] Mitchell v. Murphy, 110 U. S. 633,
"Property and law are born and must die together. Before the laws, therewas no property; take away the laws, all property ceases."[1] InAmerica the law which determines what is property is for the most part thecommon or customary law, though to this some additions are made by statute.Whatever a man produces by the labor of his hand or his brain, whatever heobtains in exchange for something of his own, and whatever is given to him, thelaw will protect him in the use, enjoyment, and disposition of. The wild beastis the property of him who captures and subdues it, provided he keeps itsubjected to his dominion; game belongs to him who slays it, and so on. Thenatural increase of domestic animals is the property of the owner of themother, and the natural productions of the soil, as well as the crops producedby the labor of man, belong to him who owns the soil. And the right to continuethe practice of the learned professions is property which cannot arbitrarily betaken away.[2]
When an article either intrinsically or by the use to which it is putbecomes prejudicial, the law may withdraw from it the attribute of property,and then any one may be at liberty to destroy it. When anything becomes anuisance, the party incommoded may destroy it if the nuisance cannot otherwisebe abated; and if the public are incommoded, the right to abate is general.Sometimes things are declared nuisances by law because of their injuriousinfluence upon the morals of the community; as, for example, lottery ticketswhen kept for sale, the implements by means of which games of chance areplayed, when kept for gambling, and intoxicating liquors when offered for salein violation of law. But when the wrong consists solely in the use to which anarticle, not a nuisance in itself, is put, the owner's property in it
[1] Bentham, Principles of the Civil Code, ch. 8.[2] Dent v. West Virginia, 129 U. S. 114. See Hawkerv. New York. 170 U. S. 189.
cannot be taken away until it has been judicially determined that abreach of the law has been committed.[1] A private citizen cannotdetermine for himself that a property right in some other person has beenforfeited by disobedience of law.[2]
Who restrained. The prohibitions of the Constitution applyto all departments of government, and to all private citizens. The executivemust of course always show authority of law for his action: and when this isout of his power, what he does cannot be by due process of law. All ministerialofficers must show warrant for everything they assume to do in apparentdisturbance of the rights of others. The judiciary, from the highest courts tothe lowest, must exercise its authority within the limits permitted by law, orit will act without jurisdiction, and therefore without due process.
The validity of judicial action is tested by the one question, Was itdone with jurisdiction? Jurisdiction is commonly said to be, first, of thesubject-matter, and, second, of the persons concerned. The former dividesitself into territorial and subjective. Every court has its territorialjurisdiction assigned to it by law, and its process is inoperative outside theprescribed limits. And within those limits the court may take cognizance ofsuch causes of action as may be committed to it by law, and by the acts ofparties having a right to bring suit. For example, the Circuit Court of theUnited States for
[1] The Supreme Court of the United States and the SupremeCourts of several of the States have upheld laws providing for the summarydestruction of property of little value, where its use was unlawful and itsdestruction necessary to effect the object of the statute. Lawton v.Steele, 152 U. S. 133. The statement of the text seems to he settled law wherethe property is of considerable value. Dunn v. Burleigh,
62 Me 24.
[2] Fisher v. McGirr, 1 Gray (Mass), 1. Under nocirc*mstances can a State take private property of one person and give it toanother for his private use, as was attempted by a law requiring a railroadcompany to grant a location for an elevator on its right of way. Missouri Pac.Ry. v. Nebraska, 164 U. S. 403.
the District of Delaware has a territorial jurisdiction within thatState only; but to ascertain what may be the subject-matter of a suit in thatcourt, it is necessary to consult the Constitution and the laws of the UnitedStates, and sometimes also the common law. The Constitution prescribes to whatcases the jurisdiction may be extended; the laws of Congress extend itto all these cases, or to less than all, as shall be deemed wise; but theselaws are made with those common law principles in view which determine whatcauses of action are local, and what are transitory. Thus, the Constitutionpermits a citizen of another State to sue a citizen of Delaware in the UnitedStates courts; the law of Congress authorizes the suit to be brought in theUnited States Circuit Court only when the amount or value in controversyexceeds five hundred dollars. But if the matter in dispute was the recovery ofpossession of land in another State, it could not be brought in Delaware,because such an action is local, and must be brought where the land is; whileif it was the recovery of the amount of a promissory note, it would beimmaterial where the right of action arose, as such an action is alwaystransitory; by which is meant, that it may be brought wherever service can beobtained, if the local law permits.
Consent can never confer jursidiction of the subject-matter ofsuits.[1] Courts are created and their jurisdiction limited anddefined, on considerations of general public policy, and parties cannot besuffered of their own discretion to modify and enlarge these limits. Therefore,where a court by law has no authority to take cognizance of a particularsubject-matter in controversy, if it shall proceed to do so either party to thecontroversy may repudiate its action at any stage of the proceedings, andrefuse to be bound by them; and his previous con-
[1] Mordecai v. Lindsay, 19 How. 199; Montgomeryv. Anderson, 21 How. 386; Coffin v. Tracy, 3 Caines (N. Y.), 128;Preston v. Boston, 12 Pick. (Mass.) 7; Green v. Collins, 6 Ired.(N. C.) 139.
sent to them, however formal, can never be an impediment to hisrejecting them.[1] This is the conclusive reason why divorcesobtained collusively by citizens of one State in the tribunals of another arewholly inoperative and null; for no court of one State can take cognizance ofthe domestic relations of another with a view to theirdissolution.[2]
Jurisdiction of the persons of litigants is acquired by courts in thefollowing ways: 1. Of the plaintiff, by his voluntary institution ofsuit; and, 2. Of the defendant, by his being served with legal process at thecommencement of suit, or by his voluntary appearance in suit without process,or after irregular service of process. This jurisdiction may always be given tocourts by consent of the party, provided the subject-matter of the controversyis within their jurisdiction.
Some cases are said to proceed in rem, because the process whichbegins them is served upon the thing which is the subject of controversy,instead of upon parties, and the pleadings and other proceedings take notice ofthe thing in litigation, and not of those interested in it. The law or thepractice of the court may require notice to be given in some form to theparties concerned before final judgment, but the jurisdiction is obtained bythe original seizure or service.
Irregularities in Judicial Action, When a court hasacquired jurisdiction, it may nevertheless exercise it irregularly. Anirregularity consists in the failure to observe that particular course ofproceeding which, conformably to the practice of the court, ought to have beenobserved in the case. It is a general rule that, while a want of jurisdictionrenders the proceedings of a court
[1] Bostwick v. Perkins, 4 Ga. 47; Ginn v.Rogers, 9 Ill. 131; White v. Buchanan, 6 Cold. (Tenn.) 32.
[2] Cheever v. Wilson; 9 Wall. 108; Hoffman v.Hoffman, 46 N. Y. 30; People v. Dawell, 25 Mich. 247; Leith v.Leith, 39 N. H. 20. See Cooley, Const. Lim., 6th ed., pp. 494, 495 and casescited.
void, an irregularity only subjects them to be avoided on a directproceeding instituted for the purpose.[1] The proper proceeding iseither, 1. An application to the court in which the irregularityoccurred, to set aside all action based upon or affected by it; or, 2. Theremoval of the case to some appellate court or jurisdiction for the correctionof the error as right and justice may require. But an irregular step cannot betaken advantage of in a collateral proceeding, but must be considered valid,while a want of jurisdiction may always be inquired into, and the enforcementof a judgment obtained without jurisdiction can never be due process oflaw.
Divesting Sights by Legislation. The legislature makes thelaws, but cannot pass judgments or decrees, or make a law that is such insubstance.[2] It must "govern by promulgated, established laws, notto be varied in particular cases, but to have one rule for rich and poor, forthe favorite at court and the countryman at plough."[3] Neverthelessthe general laws of the State may make different regulations for differentkinds of business, and prescribe different rules for the different classes ofpeople who compose the State. The rules of civil capacity and criminalresponsibility are justly and properly made for different classes of people;for minors and adults, for males and females, for the sound in mind and theinsane, for those engaged in hazardous employments and those who are not, andso on. If an employment is one which concerns the general public, and requiresfor its proper usefulness that it should have the unhesitating confidence ofthe public, as in the cases of bankers and carriers of passengers, it may be proper
[1] White v. Crow, 110 U. S. 183; Weiss v.Guerineau, 109 Ind. 438; Levan v. Millholland, 114 Penn. St. 49.
[2] Tyson v. School Directors, 51 Penn. St. 9; Gainesv. Buford, 1 Dana (Ky.), 481.
[3] Locke on Civil Government, § 142; Griffin v.Cunningham, 20 Grat. (Va.) 31.
that special and even severe regulations be established to prevent theconfidence being abused, and to insure that the public reliance shall bejustified. To compel the observance of these under penalties is neither unjustnor unconstitutional.[1]
Vested Rights. The test of unlawful interference withproperty is that vested rights are abridged or taken away. Eights are vested,in contradistinction to being expectant or contingent. They are vested when theright to enjoyment, present or prospective, has become the property of someparticular person or persons as a present interest.[2] They areexpectant, when they depend upon the continued existence of a present conditionof things until the happening of some future event. They are contingent, whenthey are only to come into existence on an event or condition which may nothappen or be performed until some other event may prevent their vesting.
Rights in Expectation. The man who to-day erects buildingsand puts in them machinery for the manufacture of some important article ofcommon consumption, on the importation of which the law imposes a tariff dutywhich is practically prohibitory, may expect that this will continue in force,and that he will in consequence reap large profits from his manufactory. But hehas no vested right in the general laws of his country which entitles him toinsist that any one of them shall remain unchanged for hisbenefit;[3] and if the duty shall
[1] See Hawker v. New York, 170 U. S. 189.
[2] For example, as to public lands, a purchaser has novested interest till he has done everything required by law to be done by himto complete his title. Campbell v. Wade, 132 U. S. 34.
[3] "A person has no property, no vested interest, in anyrule of the common law.... Eights of property, which have been created by thecommon law, cannot be taken away without due process; but the law itself as arule of conduct may be changed at the will, or even at the whim, of thelegislature, unless prevented by constitutional limitations." Munn v.Illinois, 94 U. S. 113, 134.
be removed, and his property rendered worthless in con. sequence, he isnevertheless deprived of no right. All statutory privileges depend upon thisprinciple, and they may be taken away by changes in the general laws at anytime. The privilege of exemption from arrest, exemption from taxation,exemption of property from forced sale on execution, and exemption from juryduty, are all within the principle. Even an exemption from military duty,granted by the law after full performance of duty for some previously fixedperiod, may be withdrawn when the exigencies of the State appear to requireit.[1]
So the rules of descent may be changed in the legislative discretion,though thereby the expectations of living persons under the previous laws aredisappointed. The living have no heirs, and the laws which provide who shall betheir heirs in the event of their death are only expressive of present views ofwhat is best, and may be changed as these views change; and no vested rightscan be impaired, since no rights under these laws can vest while the owner ofthe estate is living. The expectation is not property; it cannot be sold ormortgaged; it is not subject to debts; and it is not in any manner taken noticeof by the law until the moment of the owner's death, when the statute ofdescents as it then exists comes in, and for reasons of general public policypasses the estate to persons standing in certain degrees of relationship to thedeceased, in preference to all others. It is not until that moment that thereis any vested right in the person who becomes heir.[2]
So qualities annexed to estates, and to affect their enjoyment in thefuture, may be changed when the interests of the owners are not rendered lessbeneficial. Estates tail may be changed into estates in fee simple,
[1] Commonwealth v. Bird, 12 Mass. 443; Swindlev. Brooks, 34 Ga. 67; Murphy v. People, 37 Ill. 447; Statev. Wright, 53 Me. 328.
[2] Cooley, Const. Lim., 6th ed., 439.
estates in joint tenancy into estates in common.[1] So theexpectant right of the husband to an estate by the curtesy in his wife's landsmay be taken away by general legislation at any time before it has becomeinitiate by the birth of living issue of the marriage,[2] and theexpectant right of the wife to dower in her husband's lands at any time beforeit has passed from the condition of expectancy and become perfected by thehusband's death.[3] The marriage gives no vested right in either ofthese cases.
Trust Interests. Where one holds property for another, thevested right which the law regards is not that of the trustee, but of thebeneficiary. It is a perfectly legitimate exercise of legislative power toconvert equitable estates into legal, thereby wholly divesting the trustee ofhis legal ownership. The Statute of Uses[4] had this for its mainpurpose, and its general features have been re-enacted in many States of theUnion, and recognized by judicial decision in others. Trusts arising byconstruction of law to prevent frauds are subject to a like legislativecontrol, but with this limitation: that, as the legislature cannot adjudge thata fraud has been committed, the supposed trustee, if he claims the property,must have a right to a judicial hearing upon his claim before he can bedispossessed. And as between those who claim adversely as beneficiaries thelegislature can never decide, but they must be left to litigate theirconflicting claims in the courts.[5]
[1] Holbrook v. Finney, 4 Mass. 465; Burghardtv. Turner, 12 Pick. (Mass.) 534. See Comstock v. Gay, 51 Conn.45.
[2] Breeding v. Davis, 77 Va. 639; Hathon v.Lyon, 2 Mich. 93. A statute declaring that profits from the wife's propertyshould not be subject to the husband's debts, is valid as far as it affectsfuture rents and profits. Baker's Executors p. Kilgore, 145 U. S. 487.
[3] Lucas v. Sawyer, 17 Iowa, 517; Noel v.Ewing, 9 Ind. 37; Pratt v. Tefft, 14 Mich. 191; Westervelt v.Gregg, 12 N. Y. 202.
[4] Stat. 27 Hen. VIII. c. 10.
[5] Cash, Appellant, 6 Mich. 193; Lane v. Dorman, 4Ill. 238.
Curative Laws. One method in which beneficial interestsare protected by legislation is by a retrospective correction of errors anddefects in conveyances. A leading case on the subject was one in which astatute was passed to validate certain leases of land which under previousjudicial decisions had been declared inoperative. By the express terms of thestatute it was made applicable to pending suits in which contracts of leasingmight come in question. It was sustained as undoubtedly valid, though it wascontested as a law impairing the obligation of contracts.[1]Manifestly, it had no such effect as was pretended; it rather imported into thecontract an obligation which the parties had attempted, but failed, toincorporate in it. And this is the principle on which all such laws may besustained; they merely give legal validity to what the parties have attemptedto accomplish; converting their invalid agreements into the valid conveyanceswhich they undertook to make. Presumptively, therefore, these laws further theintent the parties had in view.
It may happen that the grantor in the invalid conveyance, when he findsthe title has not been transferred, may desire to take advantage of theinvalidity, and may insist that he has a vested right which the legislaturecannot take away. But obviously he has in such a case no equitable right. Inequity he is considered as holding for the benefit of the party to whom heundertook to convey; and, as has been well said, "Courts do not regard rightsas vested contrary to the justice and equity of the case."[2]
This principle has been applied to the conveyances of married women, andthey have been validated retro-
[1] Satterlee v. Mathewson, 16 S. & R. (Penn.)169; S. C. in error, 2 Pet. 380.
[2] State v. Newark, 27 N. J. 185, 197; Fosterv. Essex Bank, 16 Mass. 245; Brown v. New York, 63 N. Y. 239;Chestnut v. Shane's Lessee, 16 Ohio, 599; Read v. Plattsmouth,107 U. S. 568. See Gross v. United States Mortgage Co., 108 U. S.477.
spectively, though they were so entirely void in their origin that theydid not constitute even a contract, or raise an equity which could be takennotice of judicially.[1] The woman has no right to complain if thelaw which prescribed forms for her protection shall interfere when justicedemands it, to preclude her taking advantage of an imperfection in her ownact.[2]
If, however, the grantor in the invalid conveyance shall subsequentlyconvey in due form of law to a bona fide purchaser, the previous deedcannot afterwards be corrected to his prejudice. The reason is, that he hasequities equal to those of the first purchaser, and having connected the legaltitle with these, his right, according to well settled rules of the courts ofequity, has become unassailable.[3] And if the defective conveyancewas one which for any other reason was inoperative; as where the grantorassumed to convey by it contrary to conditions or qualifications which, for thebenefit of others, were imposed upon his title, or in fraud of the rights ofothers whose representative or agent he was, it is not in the power of thelegislature to validate it retrospectively, since validating it would divestequities instead of perfecting them.[4] An invalid will, or trust ina will, can never be helped after the testator's death, for the obvious reasonthat titles vest under it immediately.[5]
The defects in conveyances and contracts which render them inoperativearise from two causes: 1. Defect in legal capacity in the party makingthem; 2. Failure to
[1] Watson v. Mercer, 8 Pet. 88; Underwood v.Lilly, 10 S. & R. (Penn.) 97; Deutzel v. Waldie, 30 Cal. 138.
[2] Goshorn v. Purcell, 11 Ohio St. 641.
[3] Brinton v. Seevers, 12 Iowa, 389; Le Boisv. Bramel, 4 How. 449; Sherwood v. Fleming, 25 Texas, 408(Supplement).
[4] Shonk v. Brown, 61 Penn. St. 320.
[5] Billiard v. Miller, 10 Penn. St. 326; Greenoughv. Greenough, 11 Penn. St. 489; Alter's Appeal, 67 Penn. St. 341; Statev. Warren, 28 Md. 338.
observe some legal formality in their execution. The former may arisefrom nonage, coverture, or guardianship, or it may be a defect of intelligentwill. The disabilities which are imposed by the law itself may be removed ormodified by a change in the law. The same is true of legal formalities: thestatute establishes what are deemed important, and the statute may dispensewith them. And the general rule is this: it is competent for the legislature togive retrospectively the capacity it might have given in advance, and todispense retrospectively with any formality it might have dispensed -with inadvance.[1] But it can never, either prospectively orretrospectively, dispense with the act of assent, and therefore cannot validatethe deed of an insane person.[2] The power to correct applies to allclasses of contracts. A marriage defective in formalities of execution may bevalidated retrospectively;[3] so may notes and bills issued by acorporation on which the power has not been conferred by itscharter;[4] so may negotiable paper which is wholly or in part voidfor usury.[5] It is not an uncommon exercise of legislative power tovalidate the imperfect contracts of municipal corporations, whether the defectconsists in a want of original power in the corporation to do what wasattempted, or in neglect of proper formalities in entering intothem.[6]
[1] Single v. Supervisors of Marathon, 38 Wis.363.
[2] Routsong v. Wolf, 35 Mo. 174.
[3] Goshen v. Stonington, 4 Conn. 209.
[4] Lewis v. McElvain, 16 Ohio, 347; Trusteesv. McGaughy, 2 Ohio St. 152.
[5] Savings Bank v. Alien, 28 Conn. 97; Thompsonv. Morgan, 6 Minn. 292; Parmelee v. Lawrence, 48 Ill. 331;Woodruff v. Scruggs, 27 Ark. 26.
[6] Booth v. Woodbury, 32 Conn. 118; Crowell v.Hopkinton, 45 N. H. 9; Ahl v. Gleim, 52 Penn. St. 432; State v.Demorest, 32 N. J. 528; Coffman v. Keightley, 24 Ind. 509; Millsv. Charltou, 29 Wis. 400; Morris v. State, 62 Tex. 728. See Mattinglyv. District of Columbia, 97 U. S. 687; Strosser v. Fort Wayne,100 Ind. 443.
Curing Defects in Judicial Proceedings. It is a wellsettled principle that the legislature can never, by retrospective proceedings,cure a defect of jurisdiction in the proceedings of courts. The reason ismanifest. Such proceedings being utterly void, they would acquire vitality asjudicial acts, if at all, by the legislative act exclusively, and the curativeact must therefore be in its nature a judgment.[1] But mereirregularities in judicial proceedings may always be cured retrospectively. Aleading case was where a sale in a partition case was ineffectual, because thepurchase was made by several, and the deed was made to one only. But itappeared that the deed was so made by mutual agreement of all, for conveniencein making subsequent sales and conveyances, and a healing statute wasconsequently in furtherance of justice, and unobjectionable.[2] Soexecution sales have been validated where the defect consisted in an overchargeof officer's fees on the execution,[3] and sales by executors andguardians where various irregularities existed not affecting the substantialinterests of the parties concerned.[4] Indeed, it is not uncommon toprovide by general law that certain specified defects and irregularitiesoccurring in such sales shall not affect them; and the right to enact such alaw is undoubted.[5]
Administrative Proceedings. The same principle applies inall administrative proceedings. For example, irregular proceedings in taxationmay be made good
[1] McDaniel v. Correll, 19 Ill. 226; Denny v.Mattoon, 2 Alien (Mass.), 361; State v. Doherty, 60 Me. 504. Alegislative act cannot authorize courts to change the effect of decrees whichhave become final. Roche v. Waters, 72 Md. 264.
[2] Kearney v. Taylor, 15 How. 494. See Boycev. Sinclair, 3 Bush (Ky.), 261.
[3] Beach v. Walker, 6 Conn. 190.
[4] Davis v. State Bank, 7 Ind. 316; Lucas v.Tucker, 17 Ind. 41.
[5] Toll v. Wright, 37 Mich. 93. This whole matter ofRetroactive Laws is fully and carefully examined in Mr. Wade's treatise on thatsubject.
retrospectively,[1] but subject to this limitation, thatthere must originally have been in the officers jurisdiction to impose thelevy; and they must have made it in accordance with the general principleswhich underlie the power to tax.[2] An instance of the failure toobserve these principles would be a levy without an- apportionment among thesubjects taxed; an arbitrary levy being no tax at all. And a tax sale effectedby fraud is incapable of confirmation.[3] Defects in execution ormortgage sales, or in the execution of any statutory power, may be cured underthe same rules.[4] And so may irregularities in the proceedings ofpublic and private corporations.[5]
Bights of Action. It is not competent by legislation tobring into existence and establish against a party a demand which previously hewas neither legally nor equitably bound to recognize and satisfy.[6]On the other hand, it is not competent for the legislature to deprive a partyof a right of action accruing to him under the rules of the common law, or inaccordance with its principles. Therefore the right to redress for illegalarrests cannot be taken away;[7] neither can the right to recoverback taxes illegally exacted,[8] nor the right to have a
[1] Butler v. Toledo, 5 Ohio St. 225; Iowa, &c.Co. v. Soper, 39 Iowa, 112; Astor v. New York, 62 N. Y. 580;Sturges v. Carter, 114 U. S. 511.
[2] People v. Lynch, 51 Cal. 15; Houseman v.Kent Circuit Judge, 58 Mich. 364.
[3] Conway v. Cable, 37 Ill. 82.
[4] Alien v. Archer, 49 Me. 346; Commonwealthv. Marshall, 69 Penn. St. 328.
[5] Thompson v. Lee County, 3 Wall. 327; Mitchellv. Deeds, 49 Ill. 416; State v. Guttenburg, 38 N. J. 419.
[6] Medford v. Learned, 16 Mass. 215; Albertsonv. Landon, 42 Conn. 209; People v. Supervisors, 43 N. Y. 130;Ohio, &c. R. R. Co. v. Lackey, 78 Ill. 55; Cottrel v. UnionPac. Ry. Co., 21 Pac. Rep. 416 (Idaho) Miller v. Dunn, 72 Cal. 462.
[7] Johnson v. Jones, 44 Ill 142; Griffin v.Wilcox, 21 Ind. 370.
[8] Hubbard v. Brainerd, 35 Conn. 563.
void tax sale set aside.[1] Nor can conditions to theexercise of the right be imposed, which are of a nature to render itpractically of no value.[2]
A statute of limitation takes away no right of property. Such a statuteprescribes a reasonable time within which a party claiming legal rights whichanother withholds shall commence legal proceedings for their enforcement, andit withdraws the privilege of suing if the time is suffered to elapse withoutaction.[3] This is a proper and reasonable regulation of a right;not a denial of it.[4] And when the time limited by the statute hasbeen suffered to elapse without suit, so that the right of action is gone, itis not competent to revive it by retrospective legislation, since this would beequivalent to creating a new demand.[5] But all limitation acts mustallow to claimants a reasonable opportunity to assert their rights in court,and one entirely and manifestly unreasonable in the time it gives isvoid.[6]
It is a rule of construction that a statute of limitation
[1] Wilson v. McKenna, 52 Ill. 43.
[2] McFarland v. Butler, 8 Minn. 116; Wilson v.McKenna, 52 Ill. 43; Lassitter v. Lee, 68 Ala. 287. Compare Coatsv. Hill, 41 Ark. 149. But an action for a forfeiture, given by anddepending on statute, will be gone if, before recovery, the statute is repealedwithout expressly saving it. Ante, p. 344; Miller v. White, 50 N.Y. 139; Breitung v. Lindauer, 37 Mich. 217.
[3] Bell v. Morrison, 1 Pet. 351; Koshkonong v.Burton, 104 U. S. 668.
[4] Bell v. Morrison, 1 Pet. 351; Wheeler v. Jackson,137 U. S. 245; State v. Jones, 21 Md. 432; Pitman v. Bump, 5Oreg. 17.
[5] Brent v. Chapman, 5 Cranch, 358; Lockhartv. Horn, 1 Woods, 628; Reformed Church v. Schoolcraft, 65 N Y.134; Atkinson v. Dunlap, 50 Me. 111; Yancy v. Yancy, 5 Heisk.353; Horbach v. Miller, 4 Neb. 31; Bradford v. Shine, 13 Fla.393. In Campbell v. Holt, 115 U. S. 620, it is held that there is adistinction between property adversely held and a promise to pay a debt; thatone has no property in the bar of the statute as a defence to the promise, butthat the repeal revives the right to recover against him on his agreement.
[6] Pereles v. Watertown, 6 Biss. 79; Hart v.Bostwick, 14 Fla. 162; Berry v. Ramsdell, 4 Met. (Ky.) 292; Ludwigv. Steward, 32 Mich 27
does not apply to suits instituted by the State itself, unless it is soprovided in express terms.[1] And State statutes cannot limit suitsby the United States.[2]
Remedies. The power to provide remedies for all civilwrongs, and to change them when found ineffectual, or when others shall promiseto be more effectual, is and must be continuous. The citizen has no vestedright to any particular remedy, and the State may therefore take away atdiscretion those it provides, and substitute others which shall apply to wrongsalready committed as well as to those which may be committedthereafter.[3] The exceptions to this general statement are, thatthe remedy given must be one which recognizes and gives effect to theobligation of the contract when the wrong grows out of non-performance ofcontract,[4] and it must in any case be a remedy calculated to giveredress, and not merely colorable.[5] A judgment for a tort, notbeing based upon the assent of parties, is not a contract, and the means ofenforcing such a judgment may be taken away entirely.[6] And noright in property is violated, and no wrong done, when a new or additionalremedy is given for a right or equity previously in existence, and notsufficiently provided for before. This often becomes important to theaccomplishment of effectual justice.[7]
An alteration in the rules of evidence is often one of the most seriousmodifications of remedies; but the
[1] Gibson v. Chouteau, 13 Wall. 92.
[2] United States v. Hoar, 2 Mason, 311.
[3] Railroad Co. v. Hecht, 95 U. S. 168; Tennesseev. Sneed, 96 U. S. 69; New Orleans, &c. R. R. v. New Orleans,151 U. S. 219.
[4] McCracken v. Hayward, 2 How. 608; Gantley's Lesseev. Ewing, 3 How. 707; Bronson v. Kinzie, 1 How. 311.
[5] Oatman v. Bond, 15 Wis. 20; Walker v.Whitehead, 16 Wall. 314.
[6] Louisiana v. New Orleans, 109 U. S. 285; Freelandv. Williams, 131 U. S. 405.
[7] Hope v. Johnson, 2 Yerg. (Tenn.) 123; Danvillev. Pace, 25 Grat. (Va.) 1; Bartlett v. Lang, 2 Ala. (N. S.) 401;Chaffe v. Aaron, 62 Miss, 29; Schoenheit v. Nelson, 16 Neb.235.
power in the legislature to make it is undoubted, and the changes may bemade to apply in the investigation of causes of action previouslyaccruing.[1] So the burden of proof may be changed from one party tothe other by legislation; as has often been done by statutes which make a deedgiven on the sale of lands for taxes prima facie evidence of a completetitle in the grantee, whereas before such statutes the grantee would becompelled to make out his prima facie case by showing that theproceedings anterior to and upon the sale were regular.[2] Thestatutes making defective records of conveyances evidence, notwithstanding thedefects, is a further illustration of legislative power in thisregard.[3] Such laws presumptively wrong no one. They provide suchmethod of investigating the truth as seems likely to be most effectual and justfor the particular cases mentioned, and they preclude no one from establishinghis rights. A statute which should undertake to establish conclusive rules ofevidence, whereby a party might be excluded from any opportunity to show thefacts, on the affirmative presentation of his adversary's case, would benothing short of a statute of confiscation, and manifestly in violation ofconstitutional right.[4] In saying this we except all those cases towhich the principle of estoppel may be justly applied; that principle beingthat a party shall be precluded from showing a state of facts differing fromthat which by his own conduct or assurances he has induced another to believein and act upon, when the effect would be to deceive and defraud the partyso
[1] Ogden v. Saunders, 12 Wheat. 213, 249; Webbv. Den, 17 How. 577; Rich v. Flanders, 39 N. H. 304; Gibbsv. Gale, 7 Md. 76.
[2] Sprague v. Pitt, McCahon (Kans.), 212; Callananv. Hurley, 93 U. S. 387; Hand v. Ballou, 12 N. Y. 541. So thisrule when established may be abolished as to existing deeds. Gage v.Caraher, 125 Ill. 447; Strode v. Washer, 17 Oreg. 50.
[3] Webb v. Den, 17 How. 577.
[4] Wright v. Cradlebaugh, 3 Nev. 341; Groesbeckv. Seeley, 13 Mich. 329; East Kingston v. Towle, 48 N. H. 57.
acting. This is a valuable and just principle recognized by the commonlaw and in equity.
Betterment Laws. Those laws which charge a man's land witha lien in favor of one who, while holding it adversely in good faith, hasexpended his money in improvements upon it, seem at first view to be lawscreating demands for the improvement of one's lands against his will; but asthey only recognize an equity to the payment for benefits which he mustappropriate when he recovers his land, they are not unjust and notunconstitutional.[1] All such laws give the owner the option to payfor the improvements and take the land, or to abandon the land to the occupant,and recover its value without the improvements; which is as much as in justicehe can claim. It would not be competent to make him personally liable for theimprovements.[2]
Sales for Taxes. Taxes may always be levied throughadministrative proceedings, the assessors exercising quasi judicialauthority in so doing. This is due process of law for such cases.[3]The collection of taxes may be enforced by suits, by sale of property, or byforfeiture for non-payment or for attempts to evade the law. Where the tax is apersonal or property tax, it is most commonly collected by means of a seizureand sale of property. The general rule is, that in proceedings for this purposethe officers must follow the law with some strictness, and comply with allthose provisions which are enacted for the protection of the persontaxed.[4] For the collection of imposts and excise taxes the UnitedStates has always made provision under which forfeitures may be imposed forevasions of the law.
[1] Whitney v. Richardson, 31 Vt. 300; Ross v.Irving, 14 Ill. 171.
[2] Childs v. Shower, 18 Iowa, 261; McCoy v. Grandy, 3Ohio St. 463. [3] Cruikshanks v. Charleston, 1 McCord (N.C.), 360; Weimer v.
Bunbury, 30 Mich. 201, 212; Davidson v. New Orleans, 96 U. S. 97;Hagar v. Reclamation Dist., 111 U. S. 701.
[4] Stead v. Course, 4 Cranch, 403; Williams v.Peyton, 4 Wheat. 77
The forfeitures sometimes extend, not merely to the property or thing inrespect to which the tax is imposed, but to the building or ship which has beenmade the instrument of accomplishing the fraud upon the revenue. Forfeituresare judicially declared, and, as they accrue at the time when the illegal actwas committed, it is held that the judgment relates back to that time, and willcut off the right of a subsequent bona fide purchaser.[1]
SECTION III. THE EMINENT DOMAIN.
The Constitution. In the Fifth Amendment to theConstitution, the fact is recognized that in some cases the necessities of thegovernment must override the rights of private ownership, and compel thesurrender of specific private property to the public use. To prevent oppressionin such cases, it is provided that private property shall not be taken forpublic use without just compensation. This is a declaration of the underlyingprinciple of the law of eminent domain. Similar provisions in Stateconstitutions are obligatory on State authorities, and, while the FifthAmendment does not bind the States, the Fourteenth Amendment, in providing thatno State shall deprive any person of property without due process of law, infact prohibits the States from taking private property for public use withoutmaking compensation, and makes it necessary that the States, in the exercise ofthis power, use processes that are adapted to secure substantial justice.
Definition. The eminent domain may be defined as thelawful authority which exists in every sovereignty to control and regulatethose rights of a public nature which pertain to its citizens in common, and toappropriate and control individual property for the public benefit, as thepublic safety, necessity, convenience, or welfare may
[1] Henderson's Distilled Spirits, 14 Wall. 44. See UnitedStates v. The Reindeer, 2 Cliff. 57.
demand. The most important of these public rights consist in the use ofthe public highways, by land or by water, and to participate in the publicfisheries. Highways and other public conveniences, however, must be provided bythe State in the exercise of the eminent domain; and as the legal controversiesrespecting its principles usually arise in connection with appropriations forthese purposes, the right itself is often spoken of and treated as if it wererestricted to such cases.
State and Nation. As between the United States and theseveral States, the regulation and protection of private rights, privileges,and immunities belong primarily to the States, and the States are expected tomake provision for the conveniences and necessities of public travel, and forthe other wants of the general public, or of the State itself, which arecommonly supplied under this right. The eminent domain, therefore, pertains ingeneral to the States, not to the United States. Nevertheless, for all nationalpurposes it is in the United States, and the government may exercise the powerof appropriation as an attribute of the national sovereignty.[1] AndCongress may give a railroad company created under a State law the right toexercise the power of eminent domain in a Territory.[2] In theTerritories the general right belongs to the United States, but it is withinthe ordinary compass of territorial legislative power to exercise it for localpurposes. When the Territory is admitted into the Union as a State, the rightpasses with all its incidents to the new sovereignty.[3] Among theseincidents is the right to the sea-shore below the line of privateownership.[4]
[l] Kohl v. United States, 91 U. S. 367; CherokeeNation v. Sou. Kans. Ry. Co., 135 U. S. 641. The United States maydelegate to a State tribunal the power to ascertain the compensation to be paidfor the property appropriated United States v. Jones, 109 U. S. 513.
[2] Cherokee Nation v. Sou. Kans. Ry. Co., 135 U. S.641.
[3] Weber v. Harbor Commissioners, 18 Wall. 57.
[4] Pollard's Lessee v. Hagan, 3 How. 212.
Legislation Essential. But although the right is inherentin sovereignty, it lies dormant until legislation is had, defining theoccasions, methods, conditions, and agencies under and by means of which it maybe exercised. And as an exercise of the right in the appropriation of privateestates against the will of the owners is a severe instance of governmentalconvenience displacing private ownership, the rule is general that thelegislation which permits it must be strictly construed and strictly followed,and that every precedent form or ceremony which by law is made a condition to acompleted appropriation must be had or observed before the right of thegovernment will be perfected, and the right of the citizenappropriated.[1]
Distinguished from Taxation. Taxation takes property fromthe citizen for the public use, but it does so under general rules ofapportionment and uniformity, so that each citizen is supposed to contributeonly his fair share to the expenses of government, and to be compensated fordoing so in the benefits which the government brings him. What is taken underthe right of eminent domain, on the other hand, is something exceptional, some particular parcel or item of property of which the government hasspecial need. The case, therefore, is not one in which there can be anyapportionment of the burden as between the citizen whose property is taken andthe body of the community, and compensation to him of a pecuniary nature musttherefore be made. Equalization in any other mode is not possible.
The Purposes. The purposes for which the right ofappropriation may be exercised must be determined by the needs of thegovernment, and be declared by law. The United States, in the exercise of thepowers conferred upon it by the Constitution, may construct fortresses,lighthouses, piers, docks, military roads, public
[1] Nichols v. Bridgeport, 23 Conn. 189; Burtv. Brigham, 117 Mass 307.
buildings, &c.,[1] and for these or any otherconstitutional purpose may have need of land or material which the ownerrefuses to sell, or for which he demands an extortionate compensation. Any suchpurpose is within the reason of the right, and may be supplied by means of itsexercise. The State provides for the ordinary highways, and for other State andmunicipal purposes, under a similar necessity, and under the sameright.[2] The limitation in either case must be this: that thepurpose must be public, and must be one which falls within the proper sphere ofthe government undertaking to make provision for it.[3] The UnitedStates must judge of its own needs, and make provision for them, and the Statemust in like manner judge of and provide for its own: neither can exercise thisright for the benefit of the other.[4]
But though the appropriation must be made for some public use, it is notindispensably necessary that it be made to the State or the nation itself. Whenthe need provided for is municipal, as where it is for a city street or park orpublic building, the land will be taken to the corporate body having need ofit, not to the State, and
[1] And it may take private property by virtue of its rightto regulate commerce; but must make compensation. Monongahela Nav. Co.v. United States, 148 U. S. 312.
[2] The following are illustrations of what have been deemedpublic purposes, aside from highways and ordinary public buildings, for whichproperty may be condemned: public parks, Brooklyn Park Com'rs v.Armstrong, 45 N. Y. 234; sewers, Hildreth v. Lowell, 11 Gray, 345;markets, Re Cooper, 28 Hun, 515; expositions, Rees' Appeal, 12 Atl. Rep. 427(Penn ); telegraph lines, Pierce v. Drew, 136 Mass. 75; union depotcompanies, Union Depot Co. v. Morton, 83 Mich. 265; irrigation of aridlands, Fallbrook Irrigation Co. v. Bradley, 164 U. S. 112; thepreservation of a battle field, United States v. Gettysburg Electric Ry.Co., 160 U. S. 668.
[3] When the legislature has declared the use to be a publicone, its judgment will be respected by the courts unless it is palpably withoutfoundation. U. S. v. Gettysburg Electric Ry. Co., 160 U. S. 668.
[4] Kohl v. United States. 91 U. S. 367.
the corporate body may be permitted to be the actor in making theappropriation, and be clothed with the power of the State for the purpose. Insome cases even a private corporation, when it has been created by law tosupply some public convenience, may be endowed with the power of appropriationfor the purpose, and is regarded as a public agent in exercising it. A familiarinstance is that of a railroad company empowered by legislation to appropriatea right of way to its own use.[1]
The line of distinction between the purposes that are to be deemedpublic and those which cannot be, is not very accurately drawn by theauthorities. It is certain that no government can under any circ*mstancesdivest one citizen of his estate for the benefit of another, the publicinterest being in no way involved, and this whether compensation is madeor not.[2] The case of a private road is one of this sort, and itcan only be allowed, it would seem, where the people by their constitution haveassented to it.[3] Nor in any case is the fact that the public willbe incidentally benefited by the appropriation sufficient to supply the power,when the taking is purely for a private purpose.
There are some cases, however, in which the improvement of privateestates, where it cannot be accomplished without the appropriation of aneasem*nt for the purpose over the lands of others, has been deemed so far amatter of public interest as to bring the case within the princi-
[1] Beekman v. Saratoga, &c. R. R. Co., 3 Paige(N. Y.), 45, 73; Secomb v. Railroad Co., 23 Wall. 108. Such power may begiven by Congress where the subject is within its competence. Luxton v.North River Bridge Co., 153 U. S. 525.
[2] Tyler v. Beacher, 44 Vt. 648; Bloodgood v.Mohawk, &c. R. R. Co., 18 Wend. (N. Y.) 9.
[3] Taylor v. Porter, 4 Hill (N. Y.), 140; Clarkv. White, 2 Swan (Tenn ), 540; Consolidated Cannel Co. v. Cent.Pac. R. R. Co., 51 Cal. 269; Steele v. County Com'rs, 83 Ala. 304; Shollv. German Coal Co, 118 Ill. 427; Logan v. Stogsdale, 123 Ind.372.
ple of the law of eminent domain. Thus, it is held in some States thatlands may be appropriated by flooding, to enable the owners of mill sites toimprove them for manufacturing purposes,[1] and in Pennsylvania itseems that a private road may be laid out over the lands of an unwilling owner,to enable one who has a coal mine to obtain access to and developit.[2] It may be said of these cases, that the easem*nt takenenables dormant wealth, in the development of which the whole public isconcerned, to be brought into use and added to the general wealth of the State;and the same may be said where large swamps or other low lands owned byindividuals are drained and made available by means of ditches cut across thelands of others, under the right of eminent domain.[3] But these areextreme cases, and stand upon disputed ground. Lands may always beappropriated, however, for the drainage of others with a view to the benefit ofthe public health.[4]
Adjudging the Necessity. The State may not only determineupon the necessity of some appropriation for its needs, but it may also decidefor itself whether it is needful to take any particular estate or parcel ofproperty for the purpose. It is not of right that the property owner shall beheard upon this question, since, if it were, the public purpose might bedefeated by an adjudication against the necessity. This is so improbable,however, that it is not uncommon to provide by law that the necessity shall bepassed upon by a jury or by com-
1 Mills, Em. Dom., §§ 287, 288; Cooley, Const. Lim., 6th ed.,657, 659; Head v. Amoskeag Co., 113 U. S. 9.
[2] Harvey v. Thomas, 10 Watts (Penn.), 63. The samedoctrine has been applied to a subterranean mining railway. De Camp v.Hibernia R. R. Co., 47 N. J. L. 43. And see Phillips v. Watson, 63 Iowa,28; Robinson v. Swope, 12 Bush, 21; Bell v. Lamborn, 19 Col.346.
[3] Matter of Drainage of Lands, 35 N. J. 497; Talbot v.Hudson, 16 Gray (Mass.), 417. As to irrigation, see Paxton, &c. IrrigatingCo. v. Farmers' Irrigation Co., 45 Neb. 884.
[4] Reeves v. Treasurer, &c., 8 Ohio St. 333.
missioners. When a corporation is permitted to make an appropriation, itmay also be empowered to judge of the necessity, where other provision is notmade by the Constitution.
What may be taken. The property which the Constitutionprotects is anything of value which the law recognizes as such, and in respectto which the owner is entitled to a remedy against any one who may disturb himin its enjoyment. It is immaterial whether the property be tangible orintangible, whether the interest in it be permanent or merely temporary.A franchise is the subject of appropriation equally with land, and the interestof the owners in it is also equally protected.[1] So the completeand exclusive possession of his estate is assured to every owner as much as isthe fee itself, and he may defend himself against any trespass upon it, or anyencroachment not made under the constitutional conditions. Therefore atelegraph company cannot set its poles along the line and upon the right of wayof a railroad, until it shall first have obtained permission, or made lawfulappropriation of the land for the purpose.[2] And it has been heldthat a telephone company cannot put up its poles along the right of way of arailroad company with its consent without compensating the owners of thefee.[3] So there is an appropriation of property where its value istaken, either wholly or in part, by
[1] Richmond, &c. R. R. Co. v. Louisa, &c. R.R. Co., 13 How. 71; New Orleans Gas Co. v. La. Light Co., 115 U. S.673.
[2] Atlantic, &c. Tel. Co. v. Chicago, &c. R.R. Co., 6 Biss. 158. An ordinance against placing a house within forty feet ofa street is held to constitute a deprivation of property. St. Louis v.Hill, 116 Mo. 527.
[3] American Tel. Co. v. Pearce, 71 Md. 535. This isin line with Telegraph Co. v. Barnett, 107 Ill. 507; Metrop. Tel. Co.v. Colwell Lead Co., 67 How. Pr. 365; Eels v. Am. Tel., &c.Co., 143 N. Y. 133; W. U. Tel. Co. v. Williams, 86 Va. 696, where it isheld that the erection of such poles and wires on a highway is a new use of it,entitling the owners of the fee to compensation. In Julia Building Ass.v. Bell Tel. Co., 88 Mo. 258, and Pierce v. Drew, 136 Mass. 75the opposite conclusion is reached.
something done or set on foot at a distance; as where, by means of a damacross a watercourse, one's land is flooded with driftwood, orsediment,[1] or where, by the occupation of the street in front ofhis lot, he is cut off from his means of access to it;[2] or where,after the State has granted an exclusive privilege, it grants another whichcompetes with it,[3] and the like. Where land has once beenappropriated to public use, there cannot be a new appropriation of it withoutdistinct and express legislative authority.[4]
Incidental Injuries. It is a general rule, however, thatthe mere fact that one suffers incidental loss in consequence of theundertaking and construction of a public work, where nothing to which he has alegal right is actually appropriated, can never give him a claim tocompensation. The following are illustrations. A second toll-bridge constructedunder legislative authority near the first may destroy its value; but unlessthe owner of the first had an exclusive franchise, he has no legal ground ofcomplaint. So a railroad may render a turnpike valueless, but when the turnpikeitself is not taken, no property is taken; there is merely a new competition inbusiness to the injury of the party least competent to transact itprofitably.[5] So a dam constructed under
[1] Pumpelly v. Green Bay Co., 13 Wall. 166.
[2] Lackland v. Railroad Co., 31 Mo. 180: Schneider v.Detroit, 72 Mich. 240; Columbus, &c. Ry. Co. v. Witherow, 82 Ala.190. But see Conklin v. New York, &c. Ry. Co., 102 N. Y 107;Henderson v. Minneapolis, 32 Minn. 319.
[3] Central Bridge Corp. v. Lowell, 4 Gray (Mass.),474; Commonwealth v. Penn. Canal Co., 66 Penn. St. 41.
[4] In re Boston, &c. R. R. Co., 53 N. Y. 574; ProspectPark, &c. R. R. Co. v. Williamson, 91 N. Y. 552; Alexandria & F.Ry. Co. v. Alexandria, &c. R. R. Co., 75 Va. 780; Appeal of SharonRy., 122 Penn. St. 533; Providence, &c. Ry. Co. a. Norwich, &c.R. R. Co., 138 Mass. 277; Valparaiso v. Chicago, &c. Ry. Co., 123Ind. 467. So, if the land has been purchased, but is devoted to a public use.St. Paul Un. Depot Co. v. St. Paul, 30 Minn. 359.
[5] Kenneth's Petition, 24 N. H. 139; Lafayette P. R. Co.v. New Albany, &c. R. R. Co, 13 Ind. 90.
legislative authority may have its value destroyed by the subsequentconstruction of a canal under like authority; but where the last grant is notinconsistent with the first, so that no contract is violated, it is equallytrue that no property is appropriated.[1] Loss to some one is almosta necessary incident of any exercise of governmental authority; a tax lawcannot be changed, a street opened or graded, a county seat changed, a new townset off from an old, or anything else of public importance done, withoutinjurious consequences falling upon some one. But the loss is damnum absqueinjuria, as it is also in the instances above recited.[2]
The Damaging of Property. To obviate the results of theprevailing doctrine as to awarding damages for incidental injuries, severalStates have by their constitutions provided that compensation should be awardedfor property damaged or injured, as well as for that taken in the course ofpublic improvements. The construction of these provisions has varied. Somecourts have held that there must be a direct physical invasion of property,such as would have been the subject of an action at common law,[3]while others have refused to adopt so narrow a view, and have held anypecuniary injury suffered was to be compensated.[4] Damages havebeen given under these constitutions for changing the grade ofstreets,[5]
[1] Susquehanna Canal Co. v. Wright, 9 W. & S.(Penn.) 9.
[2] See Transportation Co. v. Chicago, 99 U. S. 635;Green v. State, 73 Cal. 29; Kehrer v. Richmond, 81 Va. 745;Dantzer v. Indianapolis Union Ry., 141 Ind. 604; Jordan v. Cityof Benwood, 42 W. Va. 312.
[3] Edmundson v. Pittsburgh, &c. R. R. Co., 111Penn. St. 316; Rigney v. Chicago, 102 Ill. 64; Rude v. St. Louis,93 Mo. 408. See Caledonia Ry. Co. v. Walker's Trustees, L. R. 7 App.Cas. 259; also Rauenstein v. New York, &c. R. R. Co., 136 N. Y.528.
[4] Reardon v. San Francisco, 66 Cal. 492; Gulf C.,&c. Ry. Co. v. Fuller, 63 Tex. 467; Hot Springs R. R. Co. v.Williamson, 45 Ark 429; Denver v. Bayer, 7 Col. 113.
[5] Reardon v. San Francisco, 66 Cal. 492; Atlantav. Green, 67 Ga. 386; Sheehy v. Kansas City, 94 Mo. 574;Hutchinson v. Parkersburg 25 W. Va. 226.
and cutting off egress thereby,[1] for laying a railroad inthe street of which the abutter does not own the fee,[2] and soon.
The Interest appropriated. When land is taken for a publicuse the fee is not in general appropriated, but an easem*nt only is taken, andthe easem*nt consists in the right to make use of the land for the particularpurpose, and for no other. When under such circ*mstances the use ceases, theowner is restored to his former estate. If in the mean time it becomesimportant to make use of the land for any other public use than that to whichit was devoted by the first appropriation, and this is done, the original ownerbecomes entitled to a new assessment of compensation. The reasons for this are,first, that the new use may affect the right of reverter; but, second andprincipally, it introduces new elements, which might have affected in animportant manner the compensation originally awarded had they then beenpresent. It will be seen as we proceed that every inquisition of damages ismade with the use in view to which the land is to be devoted; one use may bringwith it important compensations in benefits, while another may be speciallyinjurious far beyond the value of the land taken, and a new use may entirelyreverse these conditions. For example, if
[1] Rigney v. Chicago, 102 Ill. 64. So, if egress isrendered dangerous, but not cut off. Penn. S. V. R. R. Co. v. Walsh, 124Penn. St. 544. Not if a street is rendered impassable at some distance fromone's property. Rude v. St. Louis, 93 Mo. 408; East St. Louis v.O'Flynn, 119 Ill. 200.
[2] Hot Springs R. R. Co. v. Williamson, 45 Ark. 429;136 U. S. 121; Columbus, &c. Ry. Co. v. Witherow, 82 Ala. 190;Denver, &c. Ry. Co. v. Bourne, 11 Col. 59; Gottschalk v.Chicago, &c. Ry. Co., 14 Neb. 550. But see Olney v. Wharf, 115 Ill.519. If the railroad is on the other side of, and not in, the street, and theinjury results from its operation and not its construction, it has been heldthat no damages can be recovered. Pennsylvania R. R. Co. v. Lippincott,116 Penn. St. 472; Marchant v. Pennsylvania, 153 U. S. 380. The contraryis held in Omaha & N. P. Ry. Co. v. Janecek, 30 Neb. 276, andGainesville, &c. R. R. Co. v. Hall, 78 Tex. 169.
a common highway is opened through agricultural lands, it will moreoften be beneficial to the premises than hurtful, and the award of damages tothe owner will often be merely nominal. But if the highway is then convertedinto a canal, the injury is likely to be of a character to render the formerassessment wholly inadequate. The general rule therefore is, that, when anappropriation of land is made for one purpose, the owner retains such aninterest therein as entitles him, when the same land is taken for a new use, toa new estimate of his injury in view of the new conditions which the new useintroduces, and of their effect upon his estate generally. And this right doesnot depend upon the question whether the fee was at first taken, or only aneasem*nt. The rule, however, can only apply where the first appropriation wasof a part only of the parcel of land; for if all Was taken, the change in theuse cannot concern the former owner.
New Uses. It is not a new use if a common highway is takenfor a plank road or a turnpike; the public being at liberty to avail themselvesof its advantages in the same way as before, and the tolls exacted being only asubstitute for the tax which must before have been levied forrepairs.[1] But when a highway or toll-road is taken for thepurposes of a railway, the use is so different, and the probable influence uponthe value of adjoining estates so different also, that it is justly held that afurther property of the owner is appropriated when the change ismade.[2] At least, he has a right to an inquisition, to
[1] Murray v. County Commissioners, 12 Met. (Mass.)455.
[2] The State courts are not in entire agreement on thispoint. See Imlay v. Union Branch R. R. Co., 26 Conn. 249; Whitev. Northwestern, &c. R. R., 113 N. C. 610; Phipps v. West.Md. R. R. Co., 66 Md. 319; Montgomery v. Railway Co., 104 Cal. 186; Gaus& Sons Mfg. Co. v. St. Louis, &c. R. R. Co., 113 Mo. 308. Insome States the abutting owner is not allowed damages unless the laying of arailroad on a city street cuts off his ingress and egress. Indianapolis, B.,& W Ry. Co. v. Eberle, 110 Ind. 452; Iron Mt. R. R. Co. v.Bingham, 87
determine whether or not he suffers further injury. The case would bestill plainer, if possible, were the highway taken for a canal. But the case ofa city street afterwards appropriated to the purposes of a horse railway isdifferent. When land is taken for a city street, it is taken for all thepurposes to which city streets are usually devoted: for sewers, and the layingof water, gas, and steam pipes, as well as for passage of men and teams, andfor all such improved methods of passage and carriage as may come into use, andas may not be inconsistent with the enjoyment of the way for other customaryuses. A horse railway is such an improved method, and it is permitted for thereason that it tends to relieve the street, instead of further burdeningit.[1] So of street railways using electricity[2] orsteam[3] as motive power. Similar to this, in some respects, is thecase of a rafting and booming company on a natural watercourse in the lumberingregions, whose operations under authority of law may constitute a virtualmonopoly of the stream; but they are allowed because they facilitate thispeculiar navigation instead of hindering it, subject, nevertheless, toresponsibility to the owners of the banks, should they cause them to be floodedor otherwise injured,[4] and to any persons lawfully using thestream whom they might needlessly or unreasonably obstruct orinconvenience.
Tenn. 522. Concerning elevated steam railways, see Lahr v.Metropolitan El. Ry. Co., 104 N. Y. 268; N. Y. Elevated R. R. Co. v.Fifth Nat. Bank, 135 U. S. 432. Compare Doane v. Lake Street El. R. R.Co., 165 Ill. 510.
[1] Elliott v. Fair Haven, &c. R. R. Co., 32 Conn.579; People v. Kerr, 27 N. Y. 188; Hodges v. Balt. Pass. Ry. Co.,58 Md. 603; Texas & P. Ry. Co. v. Rosedale Co., 64 Tex. 80.
[2] Taggart v. Newport St. Ry. Co., 16 R. I. 668; Lockhartv. Craig St. Ry. Co., 139 Penn. St. 419; Halsey v. St. Ry. Co.,47 N. J. Eq. 380; Reid v. Norfolk City R. R. Co., 26 Southeastern Rep.428.
[3] Briggs v. Lewiston, &c. Co, 79 Me. 363;Williams v. City Ry. Co., 41 Fed. Rep. 556. See cases ante, p373, note 2.
[4] Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308;Weaver v. Mississippi, &c. Co., 28 Minn. 534
The rules respecting a second assessment are applicable to cases wherethe land was originally dedicated to a public purpose, as well as to those of acompulsory taking.
Assessment of Compensation. It is not an uncommonprovision of law, that, when land is to be taken for the public use, an attemptshall first be made to agree with the owner upon compensation, and when thisfails the compensation may be assessed by some statutory tribunal. It is notcompetent for the State to decide for itself what compensation shall be made,for the manifest reason that the question is one in respect to which the Stateand the property owner occupy antagonistic positions; and for the State todecide it would be to make itself judge in its own cause, in violation of aninflexible principle of constitutional right.[1] The duty of theState is to provide an impartial tribunal, which can judge of the injury thatwill be sustained, and before which the landowner shall be at liberty to appearand present his proofs in the customary modes.[2]
The rule by which compensation shall be measured is not the same in allcases, but is largely affected by the circ*mstances. If what is taken is thewhole of what the owner may have lying together, it is clear that he isentitled to its value, judged by such standards as the markets and the opinionsof witnesses can afford, and that this, except in extraordinary cases, must bethe full measure of his injury. This rule will apply in all cases where thewhole of any article or thing of value is taken, and not a part only, to theinjury of what remains. But when less than the whole is taken, the questionof
[1] Co. Lit., § 212; Dimes v. Proprietors,&c., 3 House L. Cas. 759; Rich v. Chicago, 59 Ill. 286.
[2] Charles River Bridge v. Warren Bridge, 11 Pet.420, 571; Powers' Appeal, 29 Mich. 504. This tribunal is, however, notnecessarily a jury. Bauman v. Ross, 167 U. S. 548; Cooley, Const. Lim.,6th ed, 695.
just compensation becomes a question of damages merely;[1]and in determining these the benefit to what is left may be offset against thedamages, and the question to be determined will be to what extent the owner'sinterest in that a part of which is to be taken will be diminishedthereby.[2] If the taking is of some right in an easem*nt, orexclusive franchise, or other intangible right, the question will also be oneof damages merely. But in any case mere incidental injuries or benefits, likethose suffered and received by the community at large, such as thegreater facility in travel when the taking is for a railway, or the greaterdanger of fright to teams when making use of the highway, are to beexcluded altogether from the computation.[3] It may possibly happenthat an assessment on these principles will award to the owner nothing, but henevertheless in contemplation of law receives compensation in the benefitswhich overbalance his losses.[4]
Payment. It is sometimes expressly provided by law, thatpayment shall precede appropriation. When property is taken directly by theState, or by any municipal corporation under State authority, it is notabsolutely essential, in the absence of express constitutional provision tothat effect, that compensation should be made beforeappropriation;[5] or even, if the statute so provides,
[1] Monongahela Nav. Co. v. United States, 148 U. S.312; United States v. Gettysburg Electric Ry., 160 U. S. 668.
[2] Bauman v. Ross, 167 U. S. 548.
[3] Whitely v. Miss., &c. Co., 38 Minn. 523;Washburn v. Milwaukee, &c. R. B. Co., 59 Wis. 364; Somerville,&c. R. R. Co. ads. Doughty, 22 N. J. 495; Greenville, &c. R. R.Co. v. Partlow, 5 Rich. (S. C.) 428; Stone v. Heath, 135 Mass.561; Setzler v. Perm., &c. R. R. Co., 112 Penn. St. 56.
[4] White v. County Commissioners, 2 Cush. 361; Rossv. Davis, 97 Ind. 79.
[5] Orr v. Quimby, 54 N. H. 590; Commissioners,&c. v. Bowie, 34 Ala. 461; Talbot v. Hudson, 16 Gray (Mass.),417 Great Falls Mfg. Co. v. Garland, 25 Fed. Rep. 521.
before the vesting of the title.[1] It is sufficient ifprovision is made by which the parties interested can obtain compensation, andit seems to be sufficient if the State has provided a remedy by resorting towhich compensation can be assessed and adequate payment besecured.[2] But where property is taken under public authority by acorporation, such as a railroad, the law is somewhat different. It is certainlynot competent to deprive one of his property and to turn him over to an actionat law against a corporation which may or may not prove responsible. Althoughit is not always necessary that payment should be made before theappropriation, full and adequate means should be provided for securingcompensation.[3]
The party may waive his right to payment in any case, either expresslyor by failing to claim it within such period of limitation as may beestablished by law.[4]
[1] Sweet v. Rechel, 159 U. S. 380. Compare Kennedyv. Indianapolis, 103 U. S. 599.
[2] Sweet v. Rechel, 159 U. S. 380.
[3] Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641;Backus v. Fort St. Union Depot Co., 169 U. S. 557. The student will ofcourse notice that the necessary procedure depends upon the particularconstitution or the statutes of the State. The text gives only the fundamentalprinciples of constitutional law, obtaining where there are no provisionsbeyond the ordinary constitutional requirement that just or reasonablecompensation must be made.
[4] Matter of Albany St., 11 Wend. (N. Y.) 149; Callisonv. Hedrick, 15 Grat. (Va.) 244.
CHAPTER XVII.
MUNICIPAL CORPORATIONS.
Their Functions. The place of municipal corporations inthe structure of American governments has been incidentally referred to in thepreceding pages, and little further mention is important here. It is axiomaticthat the management of purely local affairs belongs to the people concerned,not only because of being their own affairs, but because they will bestunderstand, and be most competent to manage them. The continued and permanentexistence of local government is, therefore, assumed in all the stateconstitutions, and is matter of constitutional right, even when not in termsexpressly provided for. It would not be competent to dispense with it bystatute.[1]
Their Creation. Nevertheless there is no constitutionalform or model of local government, or standard or measure of local powers; andthese need to be different according to the circ*mstances. A city of a millionof inhabitants, with boulevards, parks, water-works, docks, and other publicproperty, may need an elaborate structure of government with extensive powers,while a very simple form and few powers may answer the purposes of a countryhamlet. To determine the local needs in this regard, legislation is requisite;and the State, therefore, will create local governments, confer upon them suchpowers as in its wisdom may seem expedient, and prescribe such safeguards andlimitations to their exercise as shall be deemed needful or prudent. The powersthus conferred the State may increase at discretion, so long as they arelimited to governmental matters of purely local concern; but the State may alsodiminish them at discretion, and may at any time
[1] People v. Hurlbut, 24 Mich. 44; People v.Lynch, 61 Cal. 15.
abolish any particular local government and substitute another in itsplace. In other words, while the local community is entitled to localgovernment, it cannot claim, as against the State, any particular charter orform of local government.[1]
The creation of municipal governments within the States belongsexclusively to the States. Congress may create them in the District of Columbiaand the Territories. Within the Territories, however, it is customary to leavethe authority with the territorial legislature.
Duplicate Nature of Municipalities. Municipal corporationsare sometimes spoken of as having a duplicate nature, and they certainlypossess and exercise two classes of powers; the one of which pertains to themin what may be called their private capacity, and does not differ in naturefrom the powers exercised by other corporations, while the other pertains totheir public capacity, and is purely governmental. In the one capacity themunicipal corporation may acquire property for its own purposes and the benefitof its people; and it has a constitutional right to be protected in this, asany individual or private corporation has.[2] It may also makecontracts within the limits of the powers the State has conferred, and it isentitled to exercise its own proper judgment and discretion in making suchcontracts, and cannot be forced by the State to contract debts against itswill.[3] But in its public capacity the municipal corporation ismerely an agent in government, and the State will employ it as seems best, andmould and control its powers with a view to the utmost
[1] Dartmouth College v. Woodward, 4 Wheat. 518;Barnes v. District of Columbia, 91 U. S. 540; Laramie Co. v.Albany Co., 92 U. S. 307. See, as to the full control of the State overmunicipalities, Comanclie Co. v. Lewis, 133 U. S. 198.
[2] Terrett v. Taylor, 9 Cranch, 43; Pawlet v.Clark, 9 Cranch, 292; State v. Haben, 22 Wis. 660.
[3] Hasbrouck v. Milwaukee, 13 Wis. 37; Pope v.Phifer, 3 Heisk. (Tenn.) 682; Howell v. Bristol, 8 Bush (Ky.), 493;Washington Avenue, 69 Penn. St. 352
usefulness.[1] To a large extent State duties are apportionedfor performance between the local governments, and they are required to performthem within their limits, and to levy taxes for the purpose if necessary.Illustrations of State duties thus apportioned are those of maintaining localcourts, and the local police force, and of making and keeping in repair thehighways.[2] If the localities fail in these particulars, the Statemay coerce them; but it is inconsistent with local institutions, as they havealways existed in this country, that the local community should be coerced bythe State in matters of purely local convenience, or that the State shouldappoint officers to take charge of local affairs.
Legislative Powers. Within their proper sphere themunicipalities have legislative powers, and may make by-laws and ordinanceswhich have the force of local law. These powers they exercise under the samerules which govern State legislative authority. They cannot delegate them toindividuals for exercise; they must employ them in conformity to the charter oflocal government; they are subject to all the restrictions which the FederalConstitution imposes on the States, such as that ex post factolaws and laws impairing the obligation of contracts shall not be passed; andthey must restrain their action within the municipal limits. The State itselfcannot so far enlarge municipal powers as to enable the local officers toburden their people with taxes for objects not of local interest.[3]Nor can the people of a certain district in a county be empowered to determinewhether any person in the State shall take oysters with a dredge within thepublic waters of the county.[4]
[1] Territorial limits of a municipality can be absolutelydetermined by the State. Forsyth v. Hammond, 166 U. S. 506.
[2] See People v. Draper, 15 N. Y. 532; Baltimorev. State, 15 Md. 476; In re Pennsylvania Hall, 5 Penn. St. 204; Peoplev. Detroit, 28 Mich. 228.
[3] Wells v. Weston, 22 Mo. 385; Livingston Countyv. Weider, 64 Ill. 427; Mills v. Charlton, 29 Wis. 413.
[4] Bradshaw v. Lankford, 73 Md. 428.
CHAPTER XVIII.
THE FORMATION AND CONSTRUCTION OF STATE
CONSTITUTIONS.
Historical. Before the outbreak of the Revolution whichresulted in the separation of the thirteen English colonies from the mothercountry, each colony had a form of government that was suited to its needs.While the Revolution was in progress the colonies were changed intoself-governing commonwealths, and the forms of the government were altered asseemed best to adapt them to the new conditions. All of the States save twodrew up written constitutions. Rhode Island and Connecticut continued for someyears under the charters that had been obtained from England in the time ofCharles II. In drawing up these new constitutions different methods ofprocedure were adopted. Some of the constitutions were drawn up by theconventions or congresses which constituted the temporary State governmentstaking the place of the colonial governments which disappeared in the processesof revolution; and where conventions were elected by the people and chargedwith the duty of establishing a constitution, they did not always confine themselves to that object and clearly distinguish between what might be justlyconsidered the duties of such a body and the task of a government charged withthe ordinary duties of legislation and administration. In Massachusetts alonethe method of procedure was adopted which has since been commonly observed, andwhich gives full recognition of the principle so well expressed by John Adams,"that the people should erect the whole building with their own hands."Delegates elected to a conven-
tion for the express purpose of forming a constitution for that Statesubmitted to the people the result of their labors, and the constitution thussubmitted was ratified by the people and was declared to be the constitution"established by and for the inhabitants of the State of MassachusettsBay."[1] It may be said, however, that in all of the States therewas some recognition of the fundamental principle that the people were thesource of political power, and that the government was not in and of itselfpossessed of original and undelegated authority.
Since these first constitutions were formed new States have beenadmitted into the Union, each with its own constitution, and scores ofconventions have assembled either to draw up new constitutions or to prepareamendments and alterations in existing instruments. The constitutionalconvention is now a well recognized instrument whereby the people express theirwill. The constitutions of new States preparing for admission to the Union aredrawn up by conventions established for that purpose.[2] Itsometimes becomes advisable to revise the constitution of existing States, andwhen more than mere amendment is necessary it is customary to summonconventions for the purpose. Some constitutions provide for calling suchconventions, and others provide for the periodical submission of the questionto the people whether a revision is desirable.
Formation of Constitutions. In regard to the formation andamendment of State constitutions, the following seem to be settledprinciples.
1. The people of the several Territories may form for themselves StateConstitutions whenever enabling acts for that purpose are passed by Congress,but only in the manner allowed by such enabling acts,[3] and throughthe
[1] New Hampshire in adopting her second constitution alsosubmitted it to the people.
[2] See ante, p. 189.
[3] As we have seen, ante, p. 189, some States havebeen admitted without previous enabling act.
action of such persons as the enabling acts shall clothe with theelection franchise to that end. If the Congress shall be satisfied to sufferthe Territory to become a State, there are always questions of policy as wellas of constitutional law to be determined by Congress before admission; whether the constitution formed is republican; whether suitable Stateboundaries have been fixed upon; whether the population is sufficient; whetherany inveterate evil exists in the Territory which is now subject to control butwhich might be perpetuated under a State government. The final decision mustrest with Congress and judgment must be favorable before admission can beexpected.[1]
2. In all of the States the power to amend their constitutions residesin the great body of the people as an organized body politic. But the people inthe legal sense are those who by the existing constitution are clothed withpolitical rights.[2]
3. But the will of the people to this end can only be expressed in thelegitimate modes, by which such body politic can act, and which must either beprescribed by the existing Constitution or by an act of the legislature, whichalone is authorized to speak for the people upon this subject and to point outa mode of revision or amendment, in the absence of any provision to that end inthe constitution itself.[3]
4. Amendments of a constitution or a revision of
[1] It has been held that when a constitution has beenadopted by the people of a Territory, and Congress prescribes certain changesand additions to be adopted by the legislature and declares such changes andadditions to be fundamental conditions of admission, and the legislatureaccepts them, and the State is admitted, the change becomes a part of theConstitution and binding although not submitted to the people for approval.Brittle v. People, 2 Neb. 198; Secombe v. Kittelson, 29 Minn.555. As to conditional admission, see ante, p. 192.
[2] Luther v. Borden, 7 How. 1; Wells v. Bain,75 Penn. St. 39.
[3] Opinions of Judges, 6 Cush. 573; State v. McBride,4 Mo. 303; Koehler v. Hill, 60 Iowa, 543.
it must be prepared by some body of representatives, but no body ofrepresentatives, unless specially clothed with power for that purpose by thepeople when choosing them, can rightfully take definitive action; they mustsubmit the result of their deliberations to the people for ratification orrejection. The constitutional convention is the representative of sovereigntyonly in a very qualified sense. It is its task to put in proper form thequestions upon which the people are to pass.[1]
5. The power of the people to amend or revise their constitution islimited by the Constitution of the United States. It must not abolish therepublican form of government,[2] or contain any provision whichwould in effect amount to the exercise of any power expressly or impliedlyprohibited to the States by the Constitution of the Union.
6. Subject to the foregoing limitation, each State must judge for itselfwhat provision shall be inserted in its constitution.[3]
[1] On this subject, see Jameson on the ConstitutionalConvention, 4th ed., 479-520. "It is evident," says Mr. Jameson, "that theprevailing sentiment of the country from the earliest times has favored thesubmission of constitutions to the people." See also Wells v. Bain, 75Penn. St. 39; Woods Appeal, 75 Penn. St. 59. But such practice has not beenuniversal even in later years. In Mississippi in 1890 and in South Carolina in1895, the convention established the constitution. The Supreme Court ofMississippi held that the legislature called a convention with authority toenact a constitution, and that the convention was a sovereign body. Sproulev. Frederick, 69 Miss. 898. For a list of submitting and non-submittingconventions, see Jameson, Const. Conv. 488. When a constitution has beenregarded by the people of the State as valid, and it has never been adjudgedillegal by the courts, a Federal court will not question its validity. Smithv. Good, 34 Fed. Rep. 204.
[2] See ante, Chap. XI., and Const., Art. IV. §4.
[3] All State constitutions now contain within themselvesprovision for amendment. Some require the question of calling a convention torevise the constitution to be submitted to the people at stated periods; othersleave it to the legislature to call a convention, or to submit to the peoplethe question of calling one; while the major part allow the
Contents. A State constitution may be expected to contain(1) a description of the frame of government;
(2) generally the qualifications of the right of suffrage;
(3) the usual checks and balances of republican government, whichrecognize three separate departments of government; (4) some recognition oflocal self-government; (5) a declaration of rights for the protection ofindividuals and minorities.[1] This declaration usually contains thefollowing classes of propositions: (a) Those declaratory of the generalprinciples of republican government. (b) Those declaratory of the fundamentalrights of the citizen. (c) Those declaratory of the principles which insure tothe citizen an impartial trial, and protect him in his life, liberty andproperty. Many other things are commonly found in those charters of government,provisions which partake of the nature of ordinary acts of legislation, and noteasily distinguishable therefrom. It may be said, perhaps, that, as a matter ofprinciple, only those subjects should be embraced which are fundamental, andnot those in regard to which the policy or interest of the State may vary fromtime to time and which may be properly left to the control of the legislature.But as a matter of fact it has become customary in recent years to place in theconstitution many miscellaneous provisions dealing with subjects in which
legislature to mature specific amendments and submit them to the people,and these become part of the constitution if adopted by the requisite vote.
[1] A constitution may be said, as far as structure isconcerned, to contain five parts: 1. Designation of the boundaries ofthe States. These are not generally found in the constitutions of the olderStates. 2. A bill of rights. 3. A description of the form of government, givingthe power and duties of officers and departments. 4. Miscellaneous provisionstreating of various subjects, concerning which the people deserve to expresstheir will. 5. The schedule, which is supposed to be merely temporary, and tolay down the method of ratification and the steps necessary for putting the newconstitution into effect. See Bryce, Am. Com., vol. 1, p. 437, 3d Am. ed.;Jameson, Const. Conv. 96-103.
the people are interested and concerning which they desire to expressthemselves. The later State constitutions, in other words, contain a great dealof direct legislation enacted by the people of the State on subjects which inthe early constitutions would not be mentioned, and therefore left to thediscretion of the government established by the instrument.[1]
Character. We have already had occasion to notice thefollowing fundamental propositions: that the Federal Constitution contains agrant of power to the Federal government, and that all power not so granted isreserved to the States or to the people; that prohibitions contained in theFederal Constitution are limitations upon the government of the Union only,unless the States are expressly mentioned. The State constitutions, on theother hand, are not grants of power to the State, but instruments whichapportion and distribute governmental authority and impose restrictions upongovernmental action for the protection of the individual or for the welfare ofthe people. And the legislative department is possessed of all legislativepower not prohibited by the constitution explicitly or impliedly, or by therestrictions contained in the Federal Constitution.[2]
Construction. However carefully constitutions may be made,their meaning must be often drawn in question
[1] The result is that the newer constitutions are muchlonger than the old. The first constitution of Virginia, for example, wascontained in four quarto pages; the last needed twenty-two. The constitution ofIllinois in 1818 filled ten pages; that of 1870, twenty-five. The constitutionof New Hampshire of 1776 contained about six hundred words; that of SouthDakota has over twenty-six thousand. See for full discussion, Bryce Am. Com.,vol. 1, Chap. XXXVIII. Mr. Bryce says: "The framers of these more recentconstitutions have in fact neither wished nor cared to draw a line ofdistinction between what is proper for a constitution and what ought to be leftto be dealt with by the State legislature" Ibid., p. 443.
[2] See People v. Draper, 15 N. Y. 532, 543; Thorpev. Railroad Co., 27 Vt. 140; People v. Hill, 163 Ill. 186, 191;Cooley, Const. Lim, 6th ed., pp. 106, 107, 201, and cases cited.
and in the construction of these instruments the follow ing rules areusually observed.
1. The practical construction must be uniform. A constitution does notmean one thing at one time and another at some subsequent time.
2. The object of construction is to give effect to the intent of thepeople in establishing the constitution; it is the intent of the lawgiver thatis to be enforced. But the intent is to be found in the instrumentit*elf.[1]
3. The whole instrument is to be examined, with a view of determiningthe intention of each part. Moreover, effect is to be given, if possible, tothe whole instrument, and to every section and clause. And in interpretingclauses it must be presumed that words have been used in their natural andordinary meaning.[2] Some provisions, however, especially thosedeclaratory of personal rights, can be understood only in the light of theirhistory, and when they are expressed in technical language, we must understandthe words in their technical sense.
4. A State constitution should be understood and construed in the lightand by the assistance of the common law, and with the fact in view that itsrules are still left in force. In judging of the meaning of the constitution weare to keep in mind that it is not the beginning of law for the State, but thatit presumes the existence of a well understood system which is to remain inforce and be administered, but under such restrictions as the instrumentimposes.[3]
[1] People v. Purdy, 2 Hill, 35; Beardstown v.Virginia, 76 Ill. 34; Cooley, Const. Lim., 6th ed., p. 70, and cases cited.
[2] The framer of the Constitution and the people who adoptedit "must be understood to have employed words in their natural sense, and tohave intended what they said." Marshall, C. J , in Gibbons v. Ogden, 9Wheat. 1, 188. See also Beardstown v. Virginia, 76 Ill. 34; Halev. Everett, 53 N. H. 9; Green v. Weller, 32 Miss. 650.
[3] State v. Noble, 118 Ind. 350; Mattox v.United States, 156 U. S. 237.
5. A constitution should be interpreted as operating prospectively only.This is the rule in regard to statutes, and it seems on principle equallyapplicable to constitutions.
6. When a constitution gives a general power or enjoins a duty, it alsogives, by implication, every particular power necessary for the exercise of theone or the performance of the other. The implication should be not merelyconjectural or argumentative, and where the means for the exercise of a grantedpower are given no other means can be implied.[1] Similarly wherethe power is granted in general terms, the power is to be construed ascoextensive with the terms unless some clear restriction upon it is deduciblefrom the context.[2] And if the constitution defines thecirc*mstances under which a right may be exercised or a penalty imposed, thespecification is an implied prohibition against adding to the condition orextending the penalty to other cases.[3]
7. Sometimes after a careful examination of the constitution itself,there may remain doubts and ambiguities to be explained. Then, and only then,is it proper to seek elsewhere for aid; and under such circ*mstances certainaids may be resorted to.
Among these aids are the following:
Aids in Construction. (a) A consideration of the object tobe accomplished or the mischief designed to be remedied or guarded against, bythe clause in which the ambiguity appears, is helpful in determining its
[1] Field v. People, 3 Ill. 79, 83; State v.Hallock, 14 Nev. 202.
[2] Story on Const., §§ 424-426; Cooley, Const.Lim., 6th ed., p. 78.
[3] For example, the legislature cannot add to theconstitutional qualifications for voters: Rison v. Farr, 24 Ark. 161;State v. Williams, 5 Wis. 308; McCafferty v. Guyer, 59 Penn. St109; nor of an officer: Feihleman v. State, 98 Ind. 516; nor add toconstitutional grounds for removing an officer: Lowe v. Commonwealth, 3Met (Ky.) 237.
meaning.[1] (b) An examination of the proceedings of theconstitutional convention will sometimes be of assistance. Such an examinationhas, however, evident difficulties, since the proceedings may not clearly pointout the purpose of the provision in question. And even if the meaning of theconvention is ascertained, it is by no means to be allowed controlling force,especially if that meaning appears not to be the one which the words wouldnaturally convey.[2] The constitution obtains its force from thepeople, not from the convention, and it is not to be supposed that they lookedfor any abstruse or hidden meaning in the words, but ratified the instrument inthe belief that words employed were used in the sense obvious to the commonunderstanding.[3] (c) Contemporaneous construction of theconstitution is of value, and the practical construction that has beenacquiesced in for a considerable period must have great weight.[4]If no ambiguity or doubt appears, however, circ*mstances will not be allowed tointroduce a difficulty where the language is plain.[5] But where aparticular construction has been accepted as correct, and especially when thishas been given contemporaneously with the adoption of the constitution, and bythose who had opportunity to understand the intention of the instrument, strongpresumption exists in favor of such construction.[6]
[1] People v. Potter, 47 N. Y. 375; Baltimorev. State, 15 Md. 376; People v. Gies, 25 Mich. 83.
[2] Taylor v. Taylor, 10 Minn. 81; State v.Doron, 5 Nev. 399; Rasmussen v. Baker, 50 Pac. Rep. 819 (Wy.).
[3] Beardstown v. Virginia, 76 Ill. 34.
[4] Field v. Clark, 143 U. S. 649, 683; United Statesv. Healey, 160 U. S. 136.
[5] Story on Const., § 407; State v. Wrightson,56 N. J. Law, 126.
[6] "Great weight has always been attached, and very rightlyattached, to contemporaneous exposition." Marshall, C. J., in Cohens v.Virginia, 6 Wheat. 264, 418. See also Bank of United States v. Halstead,10 Wheat. 51, 53; Stuart v. Laird, 1 Cranch, 299; State v.Gerhardt, 145 Ind. 439. There are some cases which go further than theprinciple
Directory and Mandatory Provisions. In the construction ofstatutes particular provisions may be regarded as directory merely; by which ismeant that they are to be considered as giving general directions which oughtto be followed, but not as so limiting the power in respect to which thedirections are given that it cannot effectually be exercised without regardingthem. Mandatory provisions on the other hand, must be followed; and a failureto act in accordance with their terms renders proceedings under them void. Butthis distinction is generally not recognized as applicable to portions of aconstitution. These instruments do not usually undertake to prescribe mererules of procedure except where such rules are looked upon as essential; theymust, therefore, be considered as limitations upon the power to beexercised.[1]
The Enactment of Laws. It is customary in Stateconstitutions to make provisions often quite explicit concerning the manner ofenacting legislation; it may be said that all rules which are of the essentialsof law-making must be observed, and it is only the ordinary rules of order androutine, such as are always supposed to be under the control of everydeliberative body, that the constitution can be understood to have left asmatters of discretion to be established, modified, or abolished by thelegislative body for whose government in nonessential matters theyexist.[2]
laid down in the text, and sustain legislative action on the sole groundof long acquiescence. See Brigham v. Miller, 17 Ohio, 445.
[1] "It will be found, upon full consideration, to bedifficult to treat any constitutional provision as merely directory and notimperative." Emott, J., in People v. Lawrence, 36 Barb. 177, 186. Seealso Protho v. Orr, 12 Ga. 36; State v. Miller, 45 Mo. 495.
[2] "The modern constitutions go more and more into detail inregulating the exercise of the several powers which they grant. The object ismanifestly to correct existing or apprehended mischief not to legislate merelyfor order or convenient system." Sutherland on Statutory Construction, p.67.
Some constitutions provide that every bill shall be read on threeseveral days in each house, unless, in case of emergency, some specifiedmajority dispenses with the rule. The journals of each house ought to show thatthe rule has been complied with; but, in case they do not, the proper passageof the bill will, in the absence of evidence of which the courts can takecognizance, be presumed.[1] It is sometimes required that, on thefinal passage of a bill, the yeas and nays shall be entered on the journal.Such a direction is clearly imperative, and not to be dispensed with by thelegislature.[2] A very important provision found in one form oranother in many constitutions requires that an act shall have but one purpose,and that purpose must be expressed in the title. The purpose of suchrequirements is to prevent "the improper influences which may result fromintermixing in one and the same act such things as have no proper relation toeach other,"[3] to prevent surprise or fraud upon the legislature,and to apprise the people of the subjects of legislation that are underconsideration. The general purpose of these provisions is accomplished when thelaw has one general object which is fairly indicated in the title; it is notnecessary to indicate elaborately all the means for the accomplishment of theobject.[4] If the act is evidently broader than the title, the partindicated by the title may be allowed to stand as constitutional, if it iscomplete in itself, capable of being executed, and quite independent of thepart
[1] Supervisors of Schuyler Co. v. People, 25 Ill.163; Miller v. State, 3 Ohio St. 476. See also People v. McElroy,72 Mich. 446, where it is held that reading twice by title and once at lengthis sufficient.
[2] Spangler v. Jacoby, 14 Ill. 297; Ryan v.Lynch, 68 Ill. 160; People v. Commissioners of Highways, 54 N. Y.276.
[3] Constitution of New Jersey, Art. IV., sec. 7, §4.
[4] Slack v. Jacob, 8 W. Va. 612-641; State v.Donaldson, 41 Minn. 74; People v. Lawrence, 41 N. Y. 137; Statev. Gerhardt, 145 Ind. 439.
rejected.[1] But if the title actually indicates and the actit*elf actually embraces two distinct objects when the constitution says thatit shall embrace only one, the whole act must be treated asvoid.[2]
[1] Dewhurst v. Allegheny, 95 Penn. St. 437; McGee'sAppeal, 114 Penn. St. 470.
[2] San Antonio v. Gould, 34 Tex. 49; State v.McCracken, 42 Tex 383.
TABLE OF CASES.
A.
Page
Ableman v. Booth . 22, 31, 35,
110, 132, 147, 275
Adams Express Co. v. Ohio . 81,
250
Affold Estate, Re .... 90
Ahl v. Gleim ...... 356
Alabama v. Georgia . . . 133 Alabama, &c. R. R. Co. v. Kenny....... 338
Albany St., Matter of . . 377 Albertson v. Landon . . . 358Alexander v. Bennett... 46 Alexandria & F. Ry. Co. v.Alexandria, &c. R. E. Co. . 370 Allen v. Archer .... 358
v. Jay....... 59
v. Pioneer Press Co. . 309 Allgeyer v. Louisiana . . 246Almy v. California ... 58, 75 Alter's Appeal ..... 355
American Ins. Co. v. Canter 37, 53, 99, 117, 156, 183, 186American Publishing Co. v. Fisher ....... 18
American Tel. Co. v. Pearce 369 Ames v. Kansas .....128
Ames Iron Works v. Warren 197
Anderson v. Dunn,. . 107, 327
v. Pond ...... 198
v. State ...... 299
Antelope, The ..... 200
Apple, Estate of .... 197
Armstrong v. Carson . . . 203 v. Toler ...... 198
Armstrong Foundry Case . 116 Arnott v. Webb ..... 204
Arrowsmith v. Gleason . . 154 v. Harmoning .... 241
Asher v. Texas ..... 82
Page
Astor v. New York . . . 358 Atkinson v. Dunlap . . . 359Atlanta v. Green .... 371
Atlantic, &c. Tel. Co. v. Chicago, &c. K. K. Co.. . .369
Attorney General v. Barstow 289 v. Detroit ..... 280
v. Eau Claire .... 59
v. Ely. ...... 282
v. Supervisors .... 284
Auditor of State ». Railroad Co. ........ 54
Auffmordt v. Hedden... 265 Avon, The ...... 131
Ayers, In re . . . . 136, 148
Aztec Mining Co. v. Ripley 127
B.
Bachelder v. Moore . . . 327 Bachrack v. Norton . . . 114Backus v. Lebanon . . . 265 Bailey v. Dozier .... 136
v. Railroad Co. ... 340
Baiz, In re ...... 128
Baker v. Braman .... 171
v. Fort St. U. D. Co. . 377 v. Grice ...... 147
v. Portland ..... 256
v. State ...... 174
Baker's Executors v. Kilgore ....... 353
Baldwin v. Hale ... 90, 344
v. Trowbridge ... 278
Baltimore v. State 168, 380, 387
v. Baltimore Trust Co . 340
Bank of Augusta v. Earle 197, 201
Bank of Columbia v. Okely 243
Bank of Kentucky v. Wister 135 Bank of United States v.Don-ally ......198
v. Halstead . 155, 159, 389 Banks, The, v. The Mayor .65
v. Supervisors . 62, 65, 289
Bank Tax Case.....62
Barber v. Irwin.....99
Barbier v. Connolly 22, 249, 250, 251, 338
Barings v. Dabney ... 343 Barker v. People .... 325 Barnesv. Adams .... 283
v. District of Columbia 334, 379
v. Suddard.....202
Barnett v. People .... 326 Barron v. Baltimore ... 18
v. Burnside . . 144, 202 Barry v. Arnaud .... 140
v. Lauck......284
v. Mercein.....235
Bartlett v. Christhilf . . . 303
v. Crittenden .... 96
v. Lang......360
Barto v. Himrod .... 111 Bates ». Chapman .... 45
v. Kimball.....163
v. Taylor.....176
Batman v. Megowan ... 289 Bauman v. Ross .... 375Bauserman v. Blunt ... 150 Baxter v. Brooks .... 289 Beachv. Walker .... 357 Beardstown v. Virginia 387, 389 Beattyv. Benton .... 128
Bebee v. State.....167
Beekman v. Saratoga, &c.
R. R. Co.......367
Beer Co. v. Massachusetts . 257, 332, 341
Beers v. Arkansas .... 333 Belfast, The .... 129, 131 Belgenland,The .... 131 Belknap v. Schild ... 96, 133 Bell v. Morrison ...343, 359
v. Lamborn .... 368 Bellaire v. Baltimore . . . 142
Belt, In re......321
Benner v. Porter .... 186 Bennett v. Bull.....167
v. Fulmer.....174
Benson v. United States .. 104 Berry v. Ramsdell ... 359Bevard v. Hoffman ... 174 Bigelow v. Forrest .... 106 Billingsv. Lafferty ... 174 Binghamton Bridge Case . 333
Bird v. State......323
Bissell v. Penrose .... 159 Blake v. United States .. 119Blanchard v. Sprague .. 96 Blanchard's Factory ... 96 Blitz v.United States .. 278 Bloodgood v. Railroad Co.. 367
Bloom's Case.....324
Bloomer v. Stolley .. 96, 112 Board of Education v. Mayor165
Bogert, Re......156
Bohannon v. Commonwealth 231 Boiling v. Lersner .... 127Bollman, Ex parte ... 315 Boom Co. v. Patterson .. 141 Booth v.Woodbury .. 60, 356 Bors v. Preston ... 128, 137 Boston, &c. R. R.Co., In re 370 Boston, &c. R. R. Co. v. State 340 Bostwick v.Perkins ... 349 Boswell v. Otis.....205
v. State......325
Bourland v. Hildreth ... 283 Bourne v. The King ... 324Bowerbank v. Morris ... 119 Bowman v. Chicago, &c. Ry.
Co.........77
Boyce v. Sinclair .... 357
v. Tabb......151
Boyd v. Thayer.....271
Boyer, Ex parte .... 131 Bradford v. Brooks ... 46
v. Shine......359
Bradley, Ex parte .... 327 Bradley v. Fisher .... 327
v. Heath......297
Bradshaw v. Lankford .. 380 Bradwell v. State .... 257Brass v. Stoeser .... 261 Breeding v. Davis .... 353 Breitungv. Lindauer ... 359 Brennan v. Titusville .. 74, 82 Brentv. Chapman ...46, 359 Brick Presbyterian Church
v. New York.....334
Bridges, Ex parte .... 145
Bridges v. Shellcross ... 45
Briggs v. Lewiston, &c. Co. 374
Brigham v. Cabott .... 136
v. Miller...... 389
Bright Star, The .... 69 Brimmer v. Rebman ... 77 Brintonv. Seevers .... 355 Brisbin v. Cleary .... 281 Briscoe v.Bank of Kentucky .....29, 93, 165
Brittle v. People .... 383
Broadhead v. Milwaukee . 60
Broadway Church v. McAtee 227
Bronson v. Kinzie . . .330, 360 Brooklyn Park Com'rsv.
Armstrong...... 366
Broughton v. Pensacola . . 343
Brown, Ex parte .... 99
Brown v. Cape Girardeau . 173
v. duch*esne .... 96
v. Grover..... 279
v. Houston . . . 72-83, 86 v. Maryland ... 74, 77
v. New York .... 354
v. State...... 305
v. Trousdale .... 142
v. United States ... 98
v. Walker..... 323
Brownson v. Rodes ... 93
Bryant v. Hunters .... 203
v. United States ... 148 Bucher v. Cheshire R. R.
Co.......149, 150
Buck v. Colbath..... 154
Budd v. New York . 260, 261
Bull v. Conroe..... 332
v. Read...... 167
Burch v. Newberry ... 46
Burgess v. Seligman . . . 151
Burghardt v. Turner . . . 353
Burke v. Gaines..... 127
v. Mascarich .... 306
Burkett v. McCarty . . . 279
Burlington v. Leebrick . . 54
Burns, Ex parte .... 45
Burnside v. Lincoln Co. Ct. 166
Burrus, In re...... 146
Burt v. Brigham .... 365
Burtt v. Pyle...... 327
Bush v. Kentucky .... 143
Bushel's Case..... 321
Bushnell's Case..... 152
Butcher's Union Co. v. Crescent City Co. . . .335, 341
Butler v. Boston, &c. S. S.
Co.......131
v. Gage......165
v. Goreley .... 36, 90
v. Horwitz.....93
v. Pennsylvania . . . 332
v. People.....194
v. Toledo.....358
Byers v. McAuley .... 155
C.
Cabrera, Ex parte .... 154
Cade v. Davis.....197
Calder v. Bull 29, 31, 36, 46, 313
v. Kirby......332
Caldwell v. Texas .... 322 Caledonia Ry. Co. v. Walker'sTrustees.....371
California v. Pacific R. R. Co 62, 153
California Pac. R. R. Co., Re 90 Callan v. Wilson .... 265Callanan v. Hurley ... 361 Callison v. Hedrick ... 377 Campauv. Detroit.... 171 Campbell v. Holt .... 359
v. State......326
v. Wade......351
Cancemi v. People . 265, 321
Canfleld v. U. S.....104
Cannon v. New Orleans .. 87 Carbee v Mason .... 344Cardwell v. Amer. Bridge Co. 85,
86
Carew v. Rutherford ... 263 Carleton v. Good win's Ex'r 46Carlisle v. United States . 116 Carlow v. Aultman ... 202Carpenter v. Rogers ... 183
Carr v. Gale......266
Carson River, &c. Co. v. Bar-
rett........185
Carter v. Harrison .... 174 Cary Library v. Bliss ... 329Casborus v. People ... 326
Case v. Kelly.....149
Cash, Appellant.....353
Cates v Allen.....151
Celestine, The.....153
Central Bridge Corp. v.
Lowell........... 370
Central Pac. Ry. v. California .......63
Central R. R. Co. v. Georgia
Constr. Co......208
Central Un. Tel. Co. v. State 261 Chadwick v. Melvin ..284 Chaffe v. Aaron.... 360 Chambers v. Church 198, 208 Chapman,In re ... 50, 327 Chapman v. Toy Long .. 256 Chappell v.Waterworth . 141 Charles River Bridge v.
Warren Bridge . 248, 337, 375 Charlotte, &c. R. R. Co. v.
Gibbes.......250
Chase v. Chase.....255
Cheaney v. Hooser ... 60 Cheever v. Wilson .. 204, 349Cherokee Nation B. Georgia 134 v. Sou. Kan. Ry. Co. 364, 377 CherokeeTobacco, The .. 32 Chestnut v. Shane's Lessee 354 Chicago v.People .... 267
v. Robbins.....151
Chicago Life Ins. Co. v.
Needles.......340
Chicago, &c. R. R. Co. v.
Haggerty .... 339 v. Iowa .... 259, 341 v. People ... 283,340
v. Williams.....258
Chicago, &c. Ry. Co. v.
Chicago.......128
v. Guffey.....336
v. Jones......112
v. Minnesota .... 342
v. Solon......71
v. Wellman.....166
Chicago, B. & Q. R. R. v.
Chicago.......267
Childs v. Shower .... 362 Chinese Exclusion Case .. 32 Chiracv. Chirac .... 88 Chisholm v. Georgia 17, 27, 110, 135
Christ Church v. Philadelphia.....227, 332, 336
Christmas v. Russell ... 204 Chy Lung v. Freeman .. 78
City Bank v. Skelton ... 154
Civil Rights Cases 31, 240, 241,
269
Clark, Matter of .... 209
Clark v. Barnard .... 136
v. McKenzie .... 289
v. Smith......151
v. White......367
Clarke v. State.....313
Clay v. Field ....... 148 Clayton v. Calhoun ... 165v. Utah .... 127, 185 Cleveland, In re ... 46, 54 Clinton v.Englebrecht 156, 185 Clough v. Curtis .. 156, 166
Coats v Hill......359
Coe v. Errol......75
Coffin v. Coffin.....51
v. Tracy......348
Coffman v. Keightley ... 356
Cofrode v. Circuit Judge 200, 208
Cobens v. Virginia 27, 102, 110,
136, 389
v. La Grange .... 59
v. Tucker.....281
Coleman v. Tennessee .. 157 Coll v. Board of Canvassers289 Collector v. Day .... 62 Collins v. New Hamp... 77 Columbus,&c. Ry. Co. v.
Witherow ... 370, 372 Comanche Co. v. Lewis .. 378 Commerce, The.... 131 Commissioners v. Bowie . 376 Common Council v. Rush .281 Commonwealth v. Alger . 250
v. Bird......352
v. Blanding .... 300 v. Clary .... 103, 272
v. Deacon.....210
v. Downing .... 326 v. Emininger .... 289
v. Freelove.....322
v. Hall......313
v. Hamilton Mfg. Co. . 256
v. Hart......325
v. Hawes.....211
v. Hipple.....46
v. Hitchings .... 171 v. Intoxicating Liquors 342
v. Jones......286
v. Kneeland .... 227
Commonwealth v. Lane . . 199
v. Leech......290
v. Marshall.....358
v. McCloskey .... 167 v. Pennsylvania Canal
Co.......370
v. Porter......324
v. Potts......171
v. Wolf......227
Comstock, Re.....201
Comstock v. Gray .... 353 Confiscation Cases .... 344 Conklinv. New York, &c. By.
Co.........370
Conner v. Elliott . . 207, 208 Connors v. United States .278 Consolidated Cannel Co. v. Cent. Pac. R. R. Co. . , 367
Converse, In re.....241
Conway v. Cable .... 358
v. Taylor.....84
Cook v. Hart......211
v. Oliver......190
v. United States . 313, 320 Cooley v. Wardens .. 22, 70Cooper, Re ... 158, 327, 366 Cooper v. Reynolds ... 205
v. Telfair.....311
Cope v. Cope.....185
v. Vallette Dry Dock
Co.......132
Corfield v. Coryell . . 132, 207
Cory v. Carter.....255
Cottrel v. Union Pac. Ry. Co. 358 Council Bluffs v.Railroad
Co.........152
Counselman v. Hitchco*ck . 323 County Court B. Robinson . 255Coupland, Ex parte ... 99 Covell v. Heyman .... 154 Covington Bridge Co.v.
Kentucky......79
Covington, &c., Turnpike Co.
v. Sandford 261, 336, 342 Cowley v. Pulsifer .... 305
Coy, In re......278
Craig v. Missouri .... 93 Crandall B. Nevada . 273, 275
v. State......208
Crane v. Meginnis .... 254 Cranson v. Smith .... 96Crenshaw v. United States . 332
Creston v. Nye.....320
Cross v. Harrison .... 184
B. Hopkins.....111
v. North Carolina. 36, 94 Crowell v. Hopkinton . 59, 356Crowley v. Christensen 249 Cruikshanks v. Charleston 362 Crutcherv. Kentucky. 74 Cubreth, Ex parte .. 210 Cuddy, Petitioner .. 327Cummings v. Missouri 33, 312 Cunningham v. Macon, &c. R.
R. Co........135
Cusick's Appeal.....280
D.
Dada v. Piper.....308
Daggett v. Hudson ... 280 Daily Post Co. v. McArthur309
Dale B. Irwin......284
Daly v. Sheriff.....153
Dana, Matter of .... 265 Daniel Ball, The ... 69, 84 Dantzer v,Indianapolis .. 371 Danville v Pace .. 170, 360 D'Arcy v. Allain.... 262 v. Ketchum .. 204, 205 Darrington v. State Bank . 94
Darst v. People.....248
Dartmouth College v. Woodward .....243, 333, 379
Davidson B. New Orleans 242, 246, 362 Davies v. McKeeby ...279
Davis v. Beason.....225
v. Elmira Savings Bank 33
v. Packard.....129
v. South Carolina . . 143 v. State Bank .... 357
v. Texas......241
Davis's Case......210
Davison v. Duncan ... 51 Dawkins v. Pawlet . . . 303
Day B. Kent......283
Deaton, In re.....327
Debs, In re.....32, 107
De Camp v. Hibernia R. R.
Co.........368
Deckert, Re......90
De Cuir v. Benson .... 258
Deffeback v. Hawke ... 63
De Giacomo, In re ... 314
Dekrafft v. Barney ... 147
Delano v. Bartlett .... 279
v. Morgan..... 285
Delaware, &c. R. R. Co. v.
Central S. Y. Co. ... 261
Delmar v. Insurance Co. . 344
Dennick v. Railroad Co. . 201
Denny v. Mattoon .... 357
v. Pironi ..... 137
Dent v. West Virginia 243, 257, 346
Denton, In re..... 310
Denver v. Bayer .... 371 Denver, &c. Ry. Co. v.
Bourne....... 372
De Saussure v. Gaillard 127, 135
Desbois's Case..... 271
Detroit v. Osborne .... 150
Deutzel v. Waldie .... 355
Devisser v. Blackstone . . 155
Dewhurst v. Allegheny . . 392
De Wolf v. Johnson ... 198
Dickey v. Hurlburt ... 284
v. Turnpike Co. ... 95
Diggs v. Wolcott .... 154
Dimes v. Proprietors . . . 375
Dixon v. Parmelee . . . 324 Doane v. Lake St. El. R.R.
Co......... 374
Dobbins v. Commissioners . 62
Dobyns v. Weadon .... 283
Dodge v. Brooks .... 284
v. Woolsey . . . . 33, 137 Doe v. Braden . . . . 32,118
Doolan v. Carr..... 114
Dorr, Ex parte..... 147
Dorris v. Grace..... 98
Dorsey, In re...... 286
Dorsey v. Dorsey .... 46 Douglass v. Kentucky 332, 341
v. Pike Co...... 329
Dow v. Beidelman .... 324
Dowling v. Livingstone . . 307
v. State...... 313
Doyle v. Insurance Co. . . 173
Drainage of Lands, Matter of 368
Drake v. State..... 309
Drehman v. Stifel .... 317
Ducat v. Chicago .... 201
Duke v Asbee..... 288
Duncan, In re..... 147
Duncan v. Missouri . . . 317
Dunham v Powers . . . 303
Dunn v. Burleigh .... 347
Durach's Appeal . . . . 111
Durand v. Hollis .... 115
Dwight v. Rice . . . . 174
E.
Eagle, The...... 130
Eagle Ins. Co. v. Ohio .. 340
Eames, Ex parte .... 90 Eastern R. R. Co. v. Boston,
&c. R. R. Co...... 338
East Hartford v. Bridge Co. 334
East Kingston v. Towle .. 361 East Saginaw Salt Co. v.
East Saginaw....332, 336
East St. Louis v. O'Flynn . 372 Edmundson v.Pittsburgh,
&c. R. R. Co...... 371
Edwards v. Elliott .... 18
v. Tanneret..... 53
Edwards's Lessee v. Darby 159
Eels v. Am. Tel., &c. Co.. 369
Eggleston v. Strader ... 283
Eilenbecker v. Dist. Ct... 245
Eingartner v. Ill. Steel Co.. 208
Elk v. Wilkins..... 270
Elliott v. Fair Haven, &c. R.
R. Co........ 374
Elmwood v. Marcy.... 150
Embury v. Connor .... 166
Emert v. Missouri .... 82
Enfield v. Jordan .... 151
Ennis v. Smith..... 197
Entick v. Carrington ... 231 Escanaba Co. v. Chicago 83,85,
86
Esmond, In re..... 324
Essex Board v. Skinkle .. 334
Evans v. Eaton..... 96
v. United States ... 322
Ewing v. Fuller..... 290
Express Co. v. Kountze .. 186
F.
Fairfield v. Gallatin ... 150
Fairman v. Ives..... 297
Fallbrook Ir. Co. v. Bradley 245, 366
Fargo v. Michigan .... 75 Farrington v. Tennessee .333
v. Turner.....284
Fausler v. Parsons .... 175 Feibleman v. State ... 388Feineman v. Sachs .... 198 Feldman v. Charleston .. 59
Fell v. State......332
Fellows v. Blacksmith .. 118 Fensterman v. TribunePub.
Co.........309
Fenton v. Scott.....282
Ferris v. Higley.....185
Ferry Co. v. East St. Louis. 84
Fertilizing Co. p. Hyde Park 334,
337, 341
Fickeln v. Shelby Tax. Dist. 82
Field, Ex parte.....317
Field v. Clark . . 50, 112, 389
v. Gibbs......203
v. People .... 45, 388 Fisher v. McGirr . 230, 248, 347Fisk v. Henarie.....142
v. Jefferson Police Jury 329, 332, 342 Fitchburg, &c. R. R.Co. v.
Grand Junction R. R. Co. 340 Flagg v. Baldwin .... 198 Fletcherv. Peck . 172, 329, 330 Florida v. Georgia .... 133 Fong Yue Tingv. United
States......32, 109
Ford v. Surget.....191
v. Delta, &c. Land Co.. 249 Forsyth v. Hammond ...380
v. United States ... 186 Fort Dodge v. District Township........284
Fort Leavenworth R. R. Co.
v. Lowe.......104
Foster v. County Commiss'rs 152
v.Davenport .... 73
v. Essex Bank .... 354 v. Master, &c..... 73
v. Neilson . . 32, 117, 157
v. Scarff......281
Fowler v. Lindsey .... 134 Fox v. Hempfield R. R. Co.155
v. Ohio.....36, 94
Franklin School v. Bailey . 329
Freeland v. Hastings ... 59
v. Williams .... 317, 360
Freeman v. Howe .... 154
Freeport v. Marks .... 174
Freer v. Ford...... 166
French v. Nolan..... 285
Fretz v. Bull...... 130
Fries's Case...... 315
Frolickstein v. Mobile . . 227
Fuller v. Steiglitz .... 197
Furman v. Nichols .... 330
G.
Gage v. Caraher .... 361
Gaines v. Buford . 263, 350, 361
v. Fuentes .... 126, 144
v. Relf...... 206
v. Thompson .... 121 Gainesville, &c. R. R. Co. v.
Hall........ 372
Galena v. Amy..... 343
Galesburg v. Hawkinson . 54
Galpin v. Page..... 204
Gantley's Lessee v. Ewing . 360
Garcia v. Lee...... 117
Garland, Ex parte . 116, 286, 312
Garnett, Ex parte .... 131
Garr v. Selden..... 303
Garvey's Case..... 325
Garvey v. People .... 313
Gassett v. Gilbert .... 307 Gaus & Sons Mfg. Co.v.
Railroad Co...... 373
Gazette Co. v. Timberlake . 305
Geer v. Connecticut ... 75
Gelpcke v. Dubuque . . . 151
Gelston v. Hoyt..... 157
General Cass, The .... 130
Genesee Chief, The ... 130
Geofroy v. Riggs .... 103
Georgia v. Atkins .... 62 v. Stanton .... 121, 157 GeorgiaBanking Co. v.
Smith....... 341
Gerard v. People .... 325
Gibbons v. Ogden 28, 29, 39, 66,
67, 68, 73, 387
Gibbs v. Gale...... 361
Gibson v. Chouteau ... 360
v. Lyon...... 150
Gibson v. Mississippi 143, 249, 313
Gilman v. Philadelphia . 29, 85
v. Sheboygan .... 336
Ginn v. Rogers.....349
Giozza v. Tiernan .... 338 Gloucester Perry Co. v.
Pennsylvania .... 76, 84 Glover v. Taylor .... 288 Godfreyv. Terry .... 124 Goetcheus v. Mathewson . 174 Golden v.Prince ... 31, 35 Gold Washing, &c. Co. v.
Keyes.....144, 145
Gon-Shay-Ee, Petitioner . 156 Goodell, Matter of .... 257 Goodellv. Jackson ... 270 Gordon v. Caldcleugh... 127
v. Farrar......174
German v. Havird .... 148 Gormley v. Clark .... 150 Gougarv. Timberlake .. 277 Goshen v. Stonington... 356 Goshornv. Purcell .... 355 Gottschalk v. Chicago, &c.
Ry. Co........372
Governor v. Madrazo ... 134 Grand Lodge v. New Orleans 332Grand Rapids, &c. Booming
Co. v. Jarvis.....374
Grape Shot, The .. 53, 98, 99 Grattan v. Appleton ... 197 Gravesv. Corbin .... 142 Gray v. Pentland .... 297 Great Falls Mfg. Co.v. Garland ........376
Green, In re......278
Green v. Bridgeton . . . 248 v. Briggs .... 230, 265
v. Collins.....348
v. Neal's Lessee . . . 150 v. Shumway .... 279
v. State......371
v. Van Buskirk . 197, 204
v. Weller.....385
Greenough v. Greenough 45, 46, 355 Greenville, &c. R. R. Co.v.
Partlow.......376
Greenwood v. Freight Co. . 341 Grenada Co. Superv. v.Brog-
den........172
Grier v. Shackleford . . . 289
Griffin v. Coleman .... 233 v. Cunningham . . . 350v. Wilcox . . . 317, 358 Grim v. School District . . 56 Grimley,In re .... 99, 156 Grimmett v. State .... 321
Griner, In re......100
Groesbeck v. Seeley .. 47, 361 Grogan v. San Francisco .334 Gross v. U. S. Mortgage Co. 354 Grover & B. M. Co. v.Rad-
cliffe........204
Gulf C., &c. Ry. Co. v. Fuller 371
v. Ellis......249
Gulick v. New.....285
Gumbel v. Pitkin .... 154 Gunn v. Barry 33, 342, 343,345
Gut v. State ......313
Guy v. Baltimore .... 208 Gwin v. Breedlove ... 135
H.
Haas v. Railroad Co. ... 339 Hagar v. Reclam. Dist. 243,246, 362
Hagerstown v. Dechert .. 171 Hagood v Southern ... 136
Hale v. Akers.....128
v. Everett.....387
Hall v. De Cuir 72, 79, 259, 274
v. Keese......98
v. Wisconsin .... 332 Hallinger v. Davis .. 245, 321Halsey v. St. Ry. Co... 374
Ham v. Smith.....288
Hamilton v. Vicksburg, &c.
R. R. Co......85, 86
Hamilton Gas Light Co. v.
Hamilton City .. 337, 341 Hammett v. Philadelphia . 60 Hammondv. Johnston .. 128 Hampton v. McConnell 203, 204 Hanauerv. Doane .... 191 v. Woodruff .... 191
Hand v. Ballou.....361
Handley v. Stutz .... 148 Hanley v. Donoghue . 204. 206Hanover a. Turner ... 255 Hans v. Louisiana .... 135 Harbaughv. Cicotte ... 284
Harmon v. Chicago ... 84
Harris v. Dennie .... 88
v. Hardeman .... 204
v. People..... 321
Hart v. Bostwick .... 359
v. Evans ..... 282
Hartman v. Greenhow . . 331
Harvey v. Richards . . . 197
v. Tama Co..... 288
v. Thomas..... 368
Harwood v. Wentworth . . 50
Hasbrouck v. Milwaukee . 379
Haskell v. New Bedford . . 166
Hatch v. Burroughs . . . 191
Hatcheson v. Tilder ... 285
Hathon v. Lyon..... 353
Hauenstein v. Lynham . . 32
Hawker v. New York . 257, 314,
346, 351
Hawkins v. The Governor . 176
Hayburn's Case .... 54
Hayes v. Missouri .... 249
v. Press Co..... 305
Haynes v. United States . 116
Hazard v. Railroad Co. . . 145
Head v. Amoskeag Co. . . 368
v. University . . . 332
Head Money Cases 32, 75, 117
Heath, Ex parte . . 283, 288
Hector v. State..... 326
Heidretter v. Oil-cloth Co. . 153 Heine v. LeveeCommissioners .......54, 155
Henderson v. Coal Co. . . 148
v. Mayor ... 66, 75, 78
v, Minneapolis . . . 370
Henderson's Distilled Spirits 363 Hennen, Ex parte . . 118, 119
Hennington v. Georgia . . 71
Hepburn v. Ellzey .... 137
v. Griswold .... 91
Herdic v. Roessler .... 96 Herrick v. Minneapolis,&c.
Ry......... 201
Hess v. Johnson..... 317
Hey Sing Jeck v. Anderson 230
Hickman v. Jones .... 266 Higgins v. Central New Eng.,
&c. R. R....... 201
Hilbish v. Catherman . . 56
Hildreth v. Lowell .... 366
Hill v. Sunderland ... 46
Hill v. Townsend .... 197
Hilliard v. Miller .... 355
Hine, The ...... 129
Hiss v. Bartlett..... 50
Ho Ah Kow v. Nunan .. 324
Hoar v. Wood..... 304
Hoare v. Silverlock . . . 305
Hobbs & Johnson, Ex rel. 235,
254
Hodges v. Bait. Pass. Ry. Co. 374 Hoffman v. Hoffman .255, 349
Hoke v. Henderson ... 242
Holbrook v. Finney ... 353
Holden v. Hardy .... 256
Holiday v. Pitt..... 50
Holland v. Challen ... 151
Hollida v. Hunt..... 96
Holmes v. Jennison . 101, 102
Home Ins. Co. v. City Council 336
v. New York .... 249
Hooe v. Jamieson .... 137
Hooker v. Hooker .... 46
Hoover v. Wood .... 165
Hope v. Johnson .... 360
Hopkins v. McLure ... 128
Hoppin v. Jenckes ... 50
Hopt v. Utah..... 313
Horbach v. Miller .... 359
Horn v. Lockhart .... 191
Hornbuckle v. Toombs .. 156
Hornby v. Close .... 263
Horner v. United States .. 147
Hornet, The...... 157
Hot Springs R. R. Co. v. Wil-
liamson.....371, 372
Houseman v. Kent Circ.
Judge....... 358
Houston v. Moore ...88, 100 Houston, &c. Ry. Co.v.
Texas....... 331
Howard v. Cooper . . . 284
v. Thompson .... 297
Howell v. Bristol .... 379
v. Jackson..... 258
v. State...... 57
Hubbard v. Brainerd ... 358 Huber v. Reilly ... 279,286
Hughes's Case..... 209
Huidekoper v. Douglas .. 330
Huling v. Railway Company 245
Hull v State...... 343
Hung Hang, Ex parte 128, 147
Hunt v. Sheldon .... 286 Huntington v. Attril . 200, 201Hurtado v. California ... 245 Huse v. Glover .... 84, 86Hutchinson v. Parkersburg 371
Hyde v. Brush.....280
Hylton v. United States . 63
I.
Illinois Cen. R. E. Co. v.
Illinois.....112, 335
Imlay v. Union, &c. R. E.
Co......... 373
Indianapolis B. & W. Ry.
Co. v. Eberle..... 373
Inman Steamship Co. v.
Tinker....... 87
Insurance Co. v. Brown . . 342
v. Francis..... 137
v. Morse . . .144, 202, 274
v. Pechner..... 144
v. Rodel...... 266
Iowa, &c. Co. v. Soper . . 358
Iowa Cen. Ry. Co. v. Iowa . 245 Iron Mt. R. R. Co. v.Bing-
ham........ 373
Irvine v. Sim's Lessee . . 150
J.
Jackson, Ex parte ... 95, 309
Jackson v. Ashton .... 136
v. Commonwealth . . 323
v. Goodell.....69
v. The Magnolia ... 130 Jackson Iron Co. v. Auditor
General.......87
Jacobs, In re.....251
Jacquette v. Hugunon .. 204 James Gray, The, v. TheJohn
Fraser.......70
Janes v. Reynolds ... 242 Jecker v. Montgomery . 53, 99Jefferson Branch Bank v.
Skelly......33, 150
Jeffries v. Ankeny ... 174 Jenkins, Ex parte .... 146 Jentsch, Exparte .... 256
Johnson v. Chicago, &c. El.
Co.......131
v. Jones .... 317, 358 v. Mclntosh .... 69 v.Railroad Co.... 173
v. Riley......210
v. Sayre......156
v. Waters.....162
Jones v. Brim.....249
v. Perry ...... 45
v. Surprise.....198
v. United States . . 97, 158 Jordan v. City of Benwood .371
Judkins v. Hill.....284
Julia Bldg. Ass. v. Bell Tel.
Co.........369
Justices v. Murray . . 18, 267
K.
Kaine, Matter of .... 147 Kanawha Coal Co. v. Ka-
nawha, &c. Coal Co... 192 Kansas City, &c. R. R. Co.v.
Daughtry......145
Kansas Indians, The ... 158 Kearney v. Taylor .... 357 Keeler, Exparte .. 251, 257 Kehrer v. Richmond ... 371 Keith v. Clark ..190, 191, 330 Kellogg v. State Treasurer . 172 Kelly v.Pittsburgh ... 245 v. United States ... 103
Kemmler, In re.....324
Kendall v. United States 115, 122, 176
Kennard v. Louisiana .. 290 Kennedy v. Indianapolis . 377Kenneth's Petition ... 370 Kentucky Railroad Tax
Cases......246, 250
Kentucky v. Dennison 128, 209,
210
Keppel v. Railroad Co. . . 190
Ker v. Illinois.....211
Kerrigan, Ex parte ... 327 Kershaw v. Bailey ... 297 Keyesv. United States .. 118 Kidd v. Pearson .. 22, 75, 257 Kilbournv. Thompson . 50, 327 Kimmish v. Ball .. 76, 80, 207
King v. Root ....306 King, The, v. Abingdon 51 v.Creevey ....51 Kingsbury's Case ... 210 Kinney v. Beverley .. 242 Kinyonv. Palmer ... 307 Kirtland v. Hotchkiss . 274 Kisler v.Cameron ...289 Kneedler v. Lane .. 100, 101 Knote v. UnitedStates .. 116 Knox Co. v. Ninth Nat. Bank 151
Koehler v. Hill.....383
Kohl v. United States 104, 364, 366
Kohlheimer v. State ... 325 Kollock, In re .... 112 Koshkonongv. Burton .. 359 Kreitz v. Behrensmeyer .. 282 Kring v.Missouri .... 313 Krippendorf v. Hyde ... 154 Kuback, Ex parte ....256
L.
Lackland v. Railroad Co. . 370 Lafayette Ins. Co. v.French 201 Lafayette P. It. Co. v. Railroad Co....... 370
Lahr v. Metr. El. R. R. Co . 374
Lake Shore, &c. Ry. v. Ohio 85
Lammon v. Feusier . . . 154
Lane, In re...... 148
Lane v. Cotton..... 140
v. Dorman..... 353
Lane Co. v. Oregon . 27, 29, 92
Lange, Ex parte .... 324
Lamer v. Galatas .... 283
Lapeyre v. United States . 118
Laramie Co. v. Albany Co. 334, 379
Lascelles v. Georgia . . . 211
Lassitter v. Lee .... 359 Lawton v. Steele . 251, 252,347
Leach v. Money .... 231
Leathers v. Blessing . . . 132
Le Bois v. Bramel . . . 355
Leeper v. Texas .... 150
Leesing, In re..... 250
Leffingwell v. Warren . . 46
Legal Tender Case ... 92 Legal Tender Cases 91, 106, 107
Lehigh Valley R. E. Co. v.
Pennsylvania.....68
Leisy v. Hardin ... 72, 77 Leith v. Leith ... 255, 349Leloup v. Mobile ... 75, 82 Lem Moon Sing v. United
States.......109
Lemmon v. People .... 208
Lennon, In re.....147
Lent v. Tillson.....246
Leon v. Galceran .... 129 Levan v. Millholland ... 850Lewis v. Few.....306
v. McElvain .... 356
v. Webb......46
Lewis Co. v. Hayes . . . 185
License Cases 22, 71, 77, 80, 257,
338, 342
License Tax Cases 80, 153, 257,
338
Lincoln v. Hapgood . . . 174
v. Smith......257
Lincoln Co. v. Luning .. 136 Lindsay v. Commissioners .163 Lithograph Co. v. Sarony . 96 Little v. Barreme .. 114, 176Liverpool, &c Nav. Co. v.
Phenix Ins. Co... 151, 198 Livingston v. Jefferson .. 200Livingston Co. v. Weider . 380 Livingstone's Lessee v. Morse 149Loan Ass'n v. Topeka . 56, 59 Lockhart v. Craig St. Ry.
Co.......374
v. Horn......359
Logan v. Stogsdale . . . 367
v. United States . . 32, 107
Lonas v. State.....254
Loney, In re......278
Long v. Long.....175
Long Island W., &c. Co. v.
Brooklyn......338
Loomis v. Jackson .... 283 Lord v. Steamship Co... 68Lothrop v. Stedman ... 46
Lotty, The......131
Loughborough v. Blake .. 103 Louisiana v. Jumel . 136,331
v. New Orleans ... 360
v. Pilsbury.....329
Louisville Gas Co. v. Citizens' Gas Co........336
Louisville, &c. R. R. Co. v.
Wangelin......142
Louisville, &c. Ry. Co. v. Mississippi ......80
Low v. Austin.....74
v. Rees Printing Co.. 256 Lowe v. Commonwealth .. 388Lowell v. Boston .... 69 Lucas v. Sawyer .... 353 v.Tucker ..... 357 Ludwig v. Steward.... 359
Lusher v. Scites.....173
Luther v. Borden 25, 101, 157, 215, 217, 317, 383 Luxtonv. North River Bridge
Co........85, 367
Lynch v. State.....324
M.
Machine Co. v. Gage ... 82 Mackin v. United States . . 318Madison R. R. Co. v. Whiteneck ........167
Mahon v. Justice .... 211 Maine v. Grand Trunk Ry.. 83Mallett v. Dexter .... 153 Manchester, Matter of .. 210 Manchesterv. Massachusetts 132 Manning v. Amy .... 144 Marbury v.Madison 115, 119, 121, 128, 129, 176
Marchant v. Penn. R. R. Co. 245, 249, 372
Markham v. Brown . . . 258
Marsh v. Burroughs . 157, 344
v. Ells worth .... 303
Marshall v. Donovan . . . 166
v. Railroad Co. ... 330
Martin v. Baltimore, &c. R. R. 144
v. Hunter 27, 28, 106, 110,
152
v. Mott .... 100, 156 Marye v. Baltimore, &c. R. R. 81Mather v. Ottawa .... 59 Mattingly v. District of Columbia.......356
Mattox v. United States 18, 223, 387
Maulshy v. Reifsnider . . 304 Mauran v. Smith .... 176
Mayberry v. Kelly .... 165 Maynard v. Hill .... 185 Mayorof New York, Matter
of.........227
McAllister v. United States 118, 186
McCafferty v. Guyer . 279, 388 McCall v. California ... 74v. McDowell .... 317 McCardle, Ex parte 46, 173, 177 McCarty v.State .... 318 McClellan v. Chipman .. 33 McCormick v. Ives ....131 McCoy v. Grandy .... 362 McCracken v. Hayward 330, 343,360
McCready v. Sexton ... 47 v. Virginia 132, 207, 208McCulloch v. Maryland 28, 57, 61, 62, 107
McDaniel v. Correll ... 357 McElmoyle v. Peters .. 204McFadden v. Commonwealth 325 McFarland v. Butler ... 359 McGaheyv. Virginia ... 331 McGee's Appeal .... 392 McKane v. Durston ...319 McKay v. Campbell ... 270 McKenna v. Fiske .... 200 McKinneyv. O'Connor .. 283 McMillan v. Anderson .. 246 McNiel, Ex parte.... 151 McPherson v. Blacker .. 52 Meacham v. Dow .. 288, 330Meade v. Deputy Marshal . 156 Medford v. Learned ... 358 Medley,Petitioner .... 313 Medway v. Needham .. 199 Memphis v. Brown ...155 Memphis, &c. R. R. Co. v.
Alabama......137
Menard v. Goggan .... 137 Merivale v. Carson ... 307Merryman's Case .. 177, 317 Messenger v. Mason .. 127 Metcalf v.Watertown 126, 137 Metropolitan R. R. Co. v.
District.......103
Metropolitan Tel. Co. v. Col-well Lead Co.....369
Metzger, Ex parte ... 128 Milburn, Ex parte .... 147
Miller v. Burch.....248
v. Dunn......358
v. Grandy.....59
v. Rucker.....174
v. State......391
v. United States . . 98, 105
v. White......359
Milligan, Ex parte 33, 99, 157, 244
Milligan v. Hovey . 114, 156, 175,
176, 317
Mills, In re......318
Mills B. Charleton .111, 356, 380 v. Duryea ... 203, 204 Miner'sBank v. Iowa .. 185 Minnesota v. Barber ... 77 Minor v.Happersett .. 27, 279 Mirzan, Ex parte .... 136 Mississippi v. Johnson .25, 121 Mississippi Mills v. Cohn . 265 Missouri v. Iowa ....133
v. Lewis......249
Missouri, Kans., &c. Ry. v.
Haber.......76
Missouri Pac. Ry. Co. v.
Humes. . . 245, 250
v. Mackey.....250
v. Nebraska .... 347 Mitchell v. Deeds .... 358
v. Lemon.....232
v. Murphy.....345
v. Smale .....142
Mobile v. Kimball ... 22, 84 Mobile, &c. R. R. Co. v.State 166 Monongahela Nav. Co. v.
United States . 83, 84, 366 Monroe v. Collins .... 279 MontanaCo. v. St. Louis . 249 Montello, The .. 69, 84, 130 Montgomery v.Anderson . 348
v. Elston......62
v. Railway Co.... 373 Montross v. State .... 46 Moorev. Illinois .... 94
v. Koubly.....185
v. Monroe.....226
v. Quirk......62
v. United States ... 326 Moran v. New Orleans . 73, 80
v. Sturges.....155
Mordecai v Lindsay . . . 348 Morgan's S. S. Co. v.Louisiana......22, 71
Morley v. Lake Shore Ry.
Co.........343
Mormon Church v. United
States.....107, 183
Morris v. Gilmore .... 137 v. Miss. Pac. Ry. Co. . 200
v. Powell.....280
v. State......356
Morrissey, In re .... 99 Morton v. Sharkey ... 185
v. Skinner.....209
Moses P. State.....201
Moses Taylor, The ... 129 Mostyn v. Fabrigas ... 156 Moyerv. Van de Vanter . 281 Mugler v. Kansas 22, 261, 262, 257, 338,342 Mullan v. United States .. 119
Muller, In re......117
Munday v. Rahway ... 54 Mundy v Monroe .... 343 Munnv. Illinois . 260, 338, 351 Munster v. Lamb .... 304 Murphy, Exparte .... 284 Murphy v. People .... 362 v. Ramsey . . 37, 175,185 Murray v. Charleston 128, 331, 333
v. County Commissioners 373 Murray's Lessee v. Hoboken
Land Co.......242
Myers v. Moffet.....284
Myrick v. Mich. Centr. R. R. Co.........161
N.
Nash v. Page.....261
Nashua R. R. v. Lowell B.
R. Corp.......137
National Bank v. United States 58 v Yankton Co... 37, 183Nations v. Johnson .... 203 Neagle, In re ... 121, 146 Neal v.Delaware .... 143 Nefzger v. Railroad Co... 280 Nelson v. St.Martin's Parish 343
New v. Walker.....96
Newcum v. Kirtley .... 283 New Hampshire v. Louisiana 135New Jersey v. Wilson 330, 335
New Orleans v. Houston . 335
v. Paine......121
New Orleans Gas Co. v. La. Light Co. 262, 329, 336, 341, 369 NewOrleans, &c. R. R. v.
New Orleans.....360
New Orleans Water Works
v. La. Sugar Co. 128, 151, 329
v. New Orleans ... 176
v. Rivers . . . 262, 336
New York v. Miln .... 78
v. Squire......250
New York El. R. R. Co. a.
Fifth Nat. Bank .... 374 New York & N. E. R. R. Co.
v. Bristol......340
New York, N. H., &c. R. R.
v. New York.....71
Nichols v. Bridgeport . . . 365
v. Mudgett.....288
Nielsen, Petitioner .... 148
Noel v. Ewing.....353
Nolan v. State.....325
Norfolk, &c. R. R. Co. v.
Pendleton ... 336
v. Pennsylvania ... 74
Norman v. Heist .... 242
North State M Co. v. Field 201
Northern Pac. R. R. Co. v.
Babcook.......201
Norton v. Shelby Co.. . . 173 Nugent v. State.....326
0.
Oakey v. Bennett .... 197
Oatman v. Bond .... 360
O'Brian v. Commonwealth . 325
Ochiltree v. Railroad Co. . 344 Ogden v. Saunders 36, 90,172, 330, 344, 361
Ohio, &c. R. R. Co. v. Lackey 358
v. Wheeler..... 137
Olcott v. Supervisors . . . 151 Old Dom.. S. S. Co. v.
McKenna...... 263
Oler, The....... 131
Oliver v. McClure .... 46
Oliver Jordan, The ... 154
Olney v. Wharf..... 372
Omaha & N. P. Ry. Co. v.
Janecek.......372
Opinion of Justices (138
Mass).......45
Opinions of Judges (45 Me.) 281
(58 Me.)......56
(64 Me.)......288
(6 Cush.).....383
Ornelas v. Ruiz.....148
Orr v. Quimby.....377
Ortman v. Greenman . . . 165 Osborn v. Bank of United
States 62, 107, 126, 134, 135, 136
v. United States . . 116, 117 Osburn v. Stanley ....172
Oteiza, In re......148
Owensboro v. Hickman . . 280 Owings v. Norwood . . .127
P.
Pace v. Burgess .... 58, 87 Pacific Ex. v. Seibert .. 82,250 Pacific Ins. Co. v. Soule .. 64 Pacific R. R. Removal Cases 126Pacific R. R. Co. v. Maguire 33, 335 Packet Co. v. Catlettsburg .87
v. Keokuk.....87
Page v. Hardin.....119
v. Mathews's Administrator .... 46 Palfrey v. Boston ...62, 153 Palmer v. Barrett .... 104 v. Cuyahoga Co.... 84 Panav. Bowler . . . 151 Parham v. Justices.... 57 Park v.Detroit Free Press
Co.........309
Parker v. Overman .... 64 v. United States . . . 115Parmelee v. Baldwin ... 174 v. Lawrence .... 356 v.Thompson .... 46 Parrott's Chinese Case . . 32 Parsons v. Bedford ...264 Parwin v. Weinberg ... 281 Passaic Bridges, The ... 68 PassengerCases . . . 66, 74 Patterson v. Boom Co. . . 141
Patterson B. Kentucky .. 97 Paul v. Virginia ... 201, 207 Paulsenv. Portland ... 246 Pawlet v. Clark ... 334, 379 Paxton, &c.Ir. Co. v. Farmers' Ir. Co.......368
Pearce v. Texas.....210
Pearsall v. Gt. Northern Ry. 333 Pearson v. Yewdall ...245 Peavey v. Bobbins .... 175 Peete v. Morgan .... 87 Peikv. Chicago, &c. R. R.
Co.........259
Pembina Mining Co. v. Pennsylvania . . . 207, 249
Penn's Case......321
Pennie v. Reis.....331
Pennoyer v. McConnaughy 136, 331
v. Neff......205
Pennsylvania Co., In re . . 142 Pennsylvania Hall, In re . 380Pennsylvania R R. Co. v. Canal Commissioners ......337
v. Duncan.....334
v. Lewis......339
v. Lippincott .... 372
v. Miller......339
v. Riblet......167
Pennsylvania S. V. R. R.
Co. v. Walsh.....372
Pennsylvania Tel. Co., In re 39 Pensacola Tel. Co. v. West
U. Tel. Co.. . 39, 67, 68, 202 People v Barrett .... 325
v Bell.......280
v. Brady......210
v. Brenahm.....281
v. Brooklyn.....57
v. Canaday.....279
v. Cicotte.....282
v. Coleman.....208
v. Commissioner .. 65. 390 v. Compagnie, &c.. 75,87
v. Cook......283
v. Cowles.....281
v. Dawell . . . 255, 349
v. Detroit.....310
v. Draper .. 168, 380, 385 v. Durston ... 173, 324v. Ferguson.....282
People v. Freeman .... 45
v. Gallagher .... 255
v. Gies...... 387
v. Gillson..... 251
B. Godfrey..... 104
v. Goodwin..... 289
v. Governor..... 176
v. Hamberg..... 325
v. Hartwell..... 281
B. Hatch...... 119
v. Havnor..... 256
v. Hill....... 385
v. Hilliard..... 288
v. Hoffman..... 280
v. Hurlbut . . . 111, 378
v. Kelsey...... 111
v. Kerr...... 374
v. Kerrigan..... 321
v. Kopplekom .... 280 v. Lawrence .. 389, 390v. Lynch .... 358, 378
v. Mahaney..... 168
v. Matteson..... 282
v. McElroy..... 391
v. McManus .... 282
v. Mortimer..... 322
v. Osborn..... 45
v. Plank Road Co. . . 340
v. Potter...... 389
v. Purdy...... 387
v. Railroad Co. ... 290
v. Railway Co. ... 340
v. Ruggles..... 227
v Sackett..... 283
v. Salomon..... 284
v. Saxton..... 282
v. Schroder..... 288
v. Seaman..... 282
v. Supervisors .... 358
v. Tyler .... 323, 325
Pereles v. Watertown. . . 359
Perkins, Ex parte .... 327
Perrett v. New Orleans
Times....... 309
Perrine v. Canal Co. ... 248
Perry v. Washburn ... 56
v. Whittaker .... 289
Pervear v. Commonwealth 18, 79
Phelps v. Schroder.... 288
Phenix Ins. Co., Ex parte . 131
Philadelphia, &c. R. R. Co.
v. Bowers...... 340
Philadelphia S. S. Co. v.
Pennsylvania.....75
Phillips v. Watson .... 368 Phipps v. West. Md. R. R.
Co.........373
Phoenix Ins. Co. v. Tennessee ........336
Piatt v. People ... 288, 330 Pickard v. Pullman Car Co. 80Pierce v. Carskadon ... 312 v. Drew .... 366, 369 Pike Co.v. Barnes .... 283 Pingrey v. Washburn .. 340 Piqua Bankv. Knoop .. 335 Pitman v. Bump .... 359 Pittock v. O'Neil.... 305 Pittsburg, &c. Coal Co. v.
Bates......80, 83
Pittsburgh, &c. Ry. Co. v.
Backus.......82
Pizaño v. State.....325
Pleasant T'p v. Ins. Co... 151 Plessy v. Ferguson .... 258Plumley v. Massachusetts . 77
Plymouth, The.....131
Poindexter v. Greenhow 94, 136, 331, 343
Pollard's Lessee v. Hagan 86, 195, 364 Pollock v. Farmers'Loan &
Trust Co......64, 171
Pond v. People.....231
Ponsford v. Johnson ... 199 Poole v. Fleeger .... 102
Pope v. Curl......96
v. Phifer......379
Portland v. Bangor ... 248 Postal Tel. Co. v. Adams .83
v. Alabama.....141
v. Charleston .... 82
Pound v. Turck.....83
Powell v. Pennsylvania . . 258
Powers' Appeal.....375
Pratt v. Tefft......353
Prentiss v. Brennan ... 272 Presser v. Illinois ... 18,274 Preston v. Boston .... 348
Price v. Baker.....285
Prigg v. Pennsylvania 152, 212, 236
Privett v. Bickford ... 286 Prize Cases.....98, 114
Prospect Park, &c. R. B.
Co. v. Williamson ... 370
Protho v. Orr..... 390
Prout v. Berry..... 46
Providence, &c. Ry. Co. v.
Norwich, &c. R R. Co. . 370 Pullen v. Commissioners . 57 Pullman P.C. Co. v. Pennsylvania ...... 81
Pumpelly v. Green Bay Co. 370
Purcell v. Lawler .... 307
Puterbaugh v. Smith ... 327
Q.
Quarles & Butler, In re .. 107 Queen of Portugal v. Grymes133 Quinn v. State.....279
R.
Rahrer, In re .... 78, 111
Rail v. Potts......175
Railroad Commission Cases 261, 341
Railroad Co. v. Fuller . 80, 339 v. Georgia . . . 150,333
v Hecht......360
v. Husen ... 71, 72, 76 v. Jacksonville . . . 335
v. McClure.....33
v. Peniston.....62
v. Reid......335
v. Richmond ... 39, 67 v. Tennessee .... 135 RailroadCompanies v.
Gaines.....333, 336
Railway Co v. McShane . 63 v. Whitton .... 144, 152 Randv. Commonwealth .. 314 Randall v. Evening News Ass. 306 Randolph,Ex parte ... 166 Randolph v. Good .... 279
Rapier, In re.....95, 309
Rasmussen v. Baker . . . 389 Ratterrnan v. West. Un.Tel.
Co.........82
Ratzky v. People .... 313
Rauenstein v. New York,
&c. R. R. Co......371
Ray v. Gas Co......329
Read v. Plattsmouth ... 354 Reade v. Sweetzer .... 307Reagan v. Farmers' L. & T.
Co.......261
v. Mercantile Trust Co. 33, 63 Reardon v. San Francisco . 371
Reel v. Elder......265
Rees v. Watertown . . 54, 155
Rees' Appeal......366
Reeves v. Treasurer, &c. . 368 Reformed Church v. Schoolcraft........359
Reggel, Ex parte .. 209, 210 Regina v. Newman .... 308 Reidv. Julian.....283
v. Norfolk City R. R. Co. 374 Renner v. Bennett .... 285Reynolds, Ex parte ... 270 Reynolds v. Geary .... 257
v. People.....183
v. Stockton.....204
v. United States . 185, 323
Rhines v. Clark.....265
Rhode Island v. Massachusetts .......28, 133
Rhodes v. Iowa.....78
Rice v. Austin.....176
v. Foster......111
Rich v. Chicago.....375
v. Flanders.....361
Richmond, &c. R. R. Co. B.
Louisa, &c. R. B. Co... 369 Ridings v. Johnson.... 151 Riggsv. Johnson Co.... 154 Rigney v. Chicago .. 371, 372 Rio Grande R.R. Co. B.
Gomila.......154
Rison v. Farr .... 279, 388
Risser v. Hoyt.....46
Ritchie v. People .... 256 Roach v. Van Riswick .. 108 Robbv. Connolly .... 147 Robbins v. Shelby Taxing
Dist.....67, 72, 74, 80, 82
Roberts v. Boston .... 255
v. Reilly .... 209, 210 Robertson v. Baldwin . 152,238
v. Cease ... 124, 136, 137 Robinson, Ex parte .. 145, 327
Robinson v. Anderson . . 137
v. Swope...... 368
Robinson's Case .... 257 Roby v. Colehour .... 128 Rochev. Waters .... 357 Rockland W. Co. v. Camden, &c. Co......337
Rogers v. Cincinnati . . . 154
Rolston v. Com'rs .... 136
Rosen v. United States . . 322 Ross, In re . . . 139, 318,320
Ross v. Davis..... 376
v. Irving...... 362
v. Leggett..... 232
Routsong v. Wolf .... 356
Rowning v. Goodchild . . 140
Royall, Ex parte .... 147 Rude v. St. Louis . . 371, 372
Ruggles v. Simonton . . . 163
Rundle v. Del. & R. Canal . 200
Runge v. Franklin .... 303
Runyan v. Coster .... 202
Ryan v. Lynch..... 391
v. Thomas..... 127
S.
San Antonio v. Gould . . 392
Sanders v. Getchell ... 175
Sands v. Manistee Imp. Co. 84,
86
Satterlee v. Mathewson . . 354
Savin, Petitioner .... 327
Savings Bank v. Allen . . 356
Sayles v. Davis..... 62
Schneider v. Detroit . . . 370
Schoenheit v. Nelson . . . 360
Scholey v. Rew..... 64
Schollenberger v. Pennsylvania........ 77
Schoonmacker v. Gilmore . 129
Schurz v. Cook..... 331
Scott v. Donald..... 78
v. Jones ... 37, 134, 137
v. Neely...... 151
v. Sandford . 188, 236, 269
v. Young America . . 131
Scudder v. National Bank . 198
Sears v. Cottrell..... 170
Secomb v. Railroad Co. . . 367
Secombe v. Kittelson ... 383
Secretary v. McGarrahan . 121 Setzler v. Pennsylvania,&c.
R. R. Co. ...... 377 Sharon v. Sharon .... 164 Sharon RailwayCo.'s Appeal 370 Sheehy v. Kansas City . . 371
Shelby v. Guy.....150
Shelton v. Tiffin .... 137 Sherlock v. Allen .... 79Sherwood v. Fleming ... 355
Shields v. Ohio.....334
Shiner v. Jacobs .... 332
Shipman, Re......90
Shoe & L. Bank v. Wood . 198 Shoemaker v. French ...153
v. Nesbit.....174
Sholl v. German Coal Co. . 367
Shonk v. Brown.....355
Shortridge v. Macon ... 190 Shotwell v. Moore .... 62Shumway v. Bennett .. 45, 64
Shute v. Keyser.....127
Sidney's Case ... 231, 315 Siebold, Ex parte ... 36, 278
Sill v. Corning.....170
v. Worswick .... 197
Silverman, Re.....90
Simmons v. United States 266, 326 Simon v. Durham .... 289Simons v. People .... 284
Sims's Case......152
Single v. Supervisors ... 356 Sinking Fund Cases ... 341 Sinksv. Reese ... 103, 272 Sinnot v. Davenport ... 73 Sioux City Ry.Co. v. Sioux
City........341
Slabach v. Cushman ... 98
Slack v. Jacob.....391
Slaughter v. Commonwealth 208
Slaughter-House Cases 29, 31, 80,
248, 251, 260, 262, 273, 274
Smith, Ex parte . . 148, 209
Smith, Re ......90
Smith v. Alabama ... 22, 71
v. Brown......286
v. Godfrey.....198
v. Good......384
v. Maryland. . 18, 132, 207
v. Moore.....286
v. Myers .....176
v. Odell......186
Smith v. Powditch .... 140
v. Speed .....165
v. Turner.....88
Smith Purifier Co v. McGro-
arty........148
Smyth v. Ames . . . 261, 342
Snow v. Perry.....93
Society, &c. v. New Haven . 137 v. New London . . .223 Somerville, &c. R. R. Co. ads.
Doughty......377
Sommersett's Case.... 233
Soon Hing v. Crowley 173, 249,
250, 256
Southern Pacific Co. v. Denton ......202
Southern Pac. R. R. Co. v.
California......142
Spalding v. Vilas . . 122, 176 Spangler v. Jacoby . . .391 Sparf v. United States . . 321 Spencer v. Board ofRegistration ........276
Spies v. Illinois.....18
Spinney, Ex parte .... 257 Spooner v. McConnell .. 187 Spraginsv. Houghton .. 280
Sprague v. Pitt.....361
Spraigue v. Thompson .. 70 Spring Valley Water Works
v. Schottler ... 260, 341 Springer v. United States . 64Sprott v. United States .. 191 Sproule v. Frederick ... 384Stanley, Ex parte .... 320 Stanley v. Whipple ... 266
Starr v. Pease.....254
State v. Baker.....279
v. Bennett.....290
v. Berg......289
v. Brooks.....321
v. Brunswick .... 46 v. Burnham. . . 297, 308
v. Buzine.....210
v. Cameron.....323
v. Chandler .... 227
v. Clark ...... 171
v. Commissioners. . . 171
v. Cooler.....313
v. Corner.....280
v. Corson . . . 313, 322 v. County Com'rs . . 289
State v. Demorest .... 356
v. Denny.....45
v. District Board . . . 226
v. Doherty.....357
v. Donaldson .... 391
v. Doron......389
v. Dousman .... 171
v. Edwards.....261
v. Emery.....326
v. Frazier.....270
v. Gates......282
v. Gerhardt . . . 389, 391
v. Gibbs......289
v. Gibson.....254
v. Goodwill.....251
v. Governor. . . 176, 289
v. Gustin.....62
v. Guttenberg .... 368 v. Haben .... 334, 379
v. Hairston.....254
v. Hallock.....386
v. Harrison.....289
v. Hill......289
v. Hilmantel .... 284
v. Hufford.....210
v. Jackson.....254
v. Johnson.....290
v. Jones......359
v. Julow .... 260, 256
v. Keith......313
v. Kelly......103
v. Learned.....322
v. Lewis......290
v. Ludington .... 258
v. Manning.....313
v. Marlow.....289
v. McBride.....383
v. McCann.....255
v. McCracken ... 892 v. Medbury .... 208
v. Miller......390
v. Milwaukee Gas Co. . 262 v. Newark .... 57, 354
v. Noble......387
v. O'Flaherty .... 322
v. Olin......288
v. Orvis......281
v. Osawkee.....59
v. Paul......248
v. Phillips.....325
v. Porter.....174
v. Purdy......288
State v. Rich.....166
v. Ross......199
v. Shelby.....299
v. Simons.....54
v. Smith......285
v. State Canvassers . . 289 v. Steamship Constitution162
v. Sullivan.....286
v. Symonds.....279
v. Tait......326
v. Telephone Co.. . . 97
v. Thomas.....823
v. Trumpf.....286
v. Tutty......254
v. Walsh......281
v. Warmouth .... 176
v. Warren.....355
v. Williams . 238, 278, 388
v. Wollem.....284
v. Woodruff P. C. Co. . 75
v. Wright.....352
v. Wrightson .... 389
v. Young.....185
State Bank v. Knoop ... 150 State Freight Tax Case .. 75 StateTax on Foreign Held
Bonds.......331
State Tax on R. R. Gross
Receipts......75
State Tonnage Tax Case . 87 State Treasurer v. Railroad
Co.........153
Stead v. Course ... 64, 362
Steamboat Co. v. Barclay . 340
Steamship Co. v. Jolliffe . 70
v. Portwardens . . 73, 87
v. Tugman . . . 137, 145
Stearns v. United States . 162
Steele v. Calhoun .... 284
v. County Com'rs . . 367
Stein v. Bienville Water Co. 336
Stephens v. Wyatt ... 286
Stevens, In re.....54
Stevens v. Fuller .... 148
v. Nichols.....136
St. Joseph, &c. R. R. Co. v.
Buchanan Co. Court . . 279 St. Louis v. Ferry Co. . . 87
v. Hill......369
v. West. Un. Tel. Co. . 83
St. Louis, &c. Ry. Co. v. Gill 261,
336
St. Louis, &c. Ry. Co. v.
James..... 137
v. Vickers..... 33
Stockdale v. Hansard . . 175
Stokes v. People .... 313
Stone v. Charlestown . . 111
v. Heath..... 376
v. Mississippi 332, 333, 341
v. South Carolina . . 144
v. Yazoo, &c. R. R. Co. 342
Storey v. Wallace .... 305
St. Paul Un. Depot Co. v.
St. Paul...... 370
Strader v. Graham .... 195
Strauder v. West Virginia 143, 248
Strauss v. Meyer .... 303
Strode v. Washer .... 361
Strosser v. Fort Wayne . . 356
Stuart v. Laird .... 159, 389
Sturges v. Carter .... 358 v. Crowningshield . 35, 90
Sumner v. Beeler .... 173
Supervisors v. Galbraith . 223
v. People..... 391
Supervisors of Election, Case
of......... 54
Surgett v. Lapice .... 159 Susquehanna Canal Co. v.
Wright....... 371
Sutton v. Warren .... 199
Sutton's Heirs v Louisville 56
Suydam v. Williamson . . 150
Swain v. Seamans .... 344
Swan v. Williams ... 185
Swearingen v. Morris . . 197
Sweet v. Rechel .... 377
Swindle v. Brooks .... 352
Switzer v. Dyer . . 284, 289
T.
Tabor v. Cook..... 265
Taggart v. Newport St. Ry.
Co......... 374
Talbot v. Hudson . . 368, 376
Talcott v. Philbrick ... 281
Talkington v. Lurner . . 282
Taney v. Marshall ... 285
Tarble's Case ... 35, 110, 147
Tarbox v. Sughrue ... 284
Tate, Ex parte..... 100
Taylor v. Carryl .... 154
v. Morton.....32
v. Palmer.....57
v. Place......45
v. Porter ... 242, 367 v. Taintor ... 209, 211 v.Taylor .. 283, 289, 389 v. Ypsilanti .... 59
Teall v. Felton.....140
Tebbe v. Smith .... 284
Telegraph Co. v. Barnett . 369
v. Texas .... 75, 82
Tennessee v. Davis 32, 126, 143
v. Sneed......360
v. Whitworth .... 336 Terrett v. Taylor .. 334, 379Territory v. Lee .... 183 Terry, Ex parte .... 327 Terry v.Anderson ... 343
v. Fellows.....303
Texas v. Gaines .... 143
v.. White 17, 28, 29, 134, 190,
191, 215
Texas & P. Ry. Co. v. Cox 201
v. Rosedale .... 374
Thompson v. Lee County . 358
v. Morgan.....356
v. United States ... 326
v. Utah......321
v. Waters.....202
v. Whitman .... 204
Thorington v. Smith ... 191
Thornton, Ex parte . . . 210
Thorpe v. Railroad Co. 250, 335,
339, 386
Thurlow v. Massachusetts . 88 Tide Water Co. v. Coster .60 Tindal v. Wesley .... 136 Tioga R. R. Co. v. Bloss-
burg, &c. R. R. Co. . 149 Tobey v. Bristol .... 153
Tod v. Wick .....76
Toledo, &c. R. R. Co. v.
Jacksonville.....340
Toll v. Wright.....357
Townsend v. Todd .... 150 Trade Mark Cases .... 96 TransportationCo. v. Chicago .... 342, 371 v. Parkersburg .... 87 v.Wheeling .... 87 Trebilco*ck v. Wilson . 91, 93
Troutman, Matter of... 211
Trumbull's Case .... 286
Trustees v. McGaughey . 356
Turner, Matter of .... 238
Turner v. Commonwealth . 327
v. Maryland .... 87
Turnpike Co. v. State .. 337
Twin City Bank v. Nebeker 61
Twitchell v. Commonwealth 18 Tyler, In re .... 136, 155
Tyler v. Beacher .... 367
v.. Defrees..... 98
Tyson v. School Directors 59, 350
U.
Underwood v. Lilly ... 365 Union Bank v. Hill ... 62 UnionDepot Co. v. Morton 366 Union Ins. Co. v. Hoge .. 159 UnitedStates v. Ames .. 133 v. Anderson .... 157
v. Anthony.....276
v. Arredondo . . . . ] 17
v. Avery.....119
v. Bainbridge .... 99
v. Ballin.....49
v. Bevans . . . 106, 132
v. Black .....121
v. Blaine.....121
v. Boyd .... 231, 322 v. Brig Malek Adhel . 97 v.Chicago ... 132, 133
v. Cisna......69
v. Connor.....331
v. Coombs.....107
v. Cornell.....103
v. Cruikshanks 22, 27, 29, 31, 274, 294, 295
v. Curtis.....107
v. Dawson.....320
v. De Walt.....318
v. De Witt . 80, 153, 338 v. Eliason ... 114, 115
v. Ferreira.....54
v. Fisher.....107
v. Fox......202
v. Freeman .... 115 v. Germaine .... 118 v.Gettysburg El Ry. 366 v. Gilmore.....159
United States v. Gratiot .. 182 v. Greathouse 105, 116,315 v. Hamilton .... 319
v. Harris.....31
v. Hartwell .... 118 v. Healey ... 159, 389
v. Hoar......360
v. Holliday .... 69, 158 v. Hudson ... 149, 304 v.Jailer of Fayette .. 145 v James Morrison .. 84 v. Jones .. 152,319, 364 v. Kessler.....97
v. Klein......116
v. E. C. Knight Co.. 69, 79 v. Lancaster .... 116 vLe Baron .... 119
v. Lee......136
v. Lynch.....126
v. Marigold .... 94
v. Marselis.....95
v. McDonald .... 332 v. Moore .... 118, 169 v.Morris .... 324
v. Mouat.....118
v. Norton.....116
v. Palmer.....97
v. Perkins.....118
v. Pryor......315
v. Railroad Bridge .. 132 v. Railroad Co... 62, 153v. Rauscher .... 211 v. Reading R. R.... 266 v. Reese 274,278, 293, 294, 338 v. Reindeer... 155, 363
v. Riley......324
v. Rodgers.....132
v. Simpson.....186
v. Smith......97
v. Texas......158
v. Thomasson .... 117 v. Tinklepaugh ... 118
v. Tynen.....344
v. Villato.....88
v. Waddell.....107
v. Wagner.....133
v. William, The ... 70
v. Wilson.....116
v. Windom.....121
v. Wong Kim Ark .. 270 v. Zucker.....323
United States Bank v. Planters' Bank...... 137
University v. People . . . 335
Upshur Co. v. Rich ... 144
Upton v. Hume..... 306
Usher v. Colchester ... 59
v. Severance .... 306
V.
Vallandigham, Ex parte .. 128 Valparaiso v. Chicago, &c.
Ry. Co........370
Van Brocklin v. Tennessee 63, 153
Vance v. Vandercook Co. 71, 78 Vanderzee v. McGregor ..297 Vandeusen v. Newcomer . 248 Van Home v. Dorrance .. 330 VanNess v. Pacard ... 7 Van Slyke v. Insurance Co. 46 Van Voorhisv. Brintnall . 199 Veazie v. Moore ... 68, 69 Veazie Bankv. Fenno 57, 58, 64 Venice v. Murdock ... 151 Verner v.Verner .... 303 Vicksburg. &c. R. R. v. Put-
nam........266
Vidal v. Girard's Executors 226 Vincennes University v.Indiana ........185
Violett v. Violett .... 263
Virginia, Ex parte 147, 241, 248
Virginia v. Rives . . 240, 249
v. Tennessee .... 102
v. West Virginia . 134, 192
Vogel v. Gruaz.....324
Voight v. Wright .... 77 Von Hoffman v. Quincy 155, 343Voorhees, Matter of ..209, 210
W.
Wabash Ry. Co. v. Illinois 79, 342
Wadleigh v. Veazie . . . 153 Wahoo v. Dickinson ... 54Walker v. Harbor Commissioners ..... 150
v. Sanford..... 284
Walker v. Sauvinet .. 18, 246 v. Whitehead .... 360 Wall,Ex parte .... 245 Wallach v. Van Riswick . 116 Walling v.Michigan .. 72, 74 Walston v Nevin .... 249 Walworth v. Harris... 197 Wan Shing v. United States 32 Ward v. Flood . .. 255v. Maryland 62, 207, 208, 273
Ware v. Hylton.....32
Waring v. Clark .... 131 Warren v. Manis .... 93
v. Paul......62
v. Railroad Co.... 141 Washburn v. Milwaukee, &c.
R. R. Co.....376
v. Voorhies.....284
Washington Avenue ... 379 Washington Bridge Co. v.
State........340
Wason v. Walter .... 307 Watkins, Ex parte .... 147 Watsonv. Mercer .... 355 Wayman v. Southard ... 45 Waymell v.Reed .... 198 Weaver v. Lapsley ... 98 v. Mississippi, &c.Co.. 374
Webb v. Den......361
Weber v. Harbor Commissioners .....195, 364
Webster v. Munger ... 198 Weckerly v. Geyer ... 174 Weimerv. Bunbury ... 362 Weiss v. Guerineau ... 350 Welch v.Cook ... 331, 336 Wellington, Petitioner .. 166
Wells, Ex parte.....116
Wells v. Bain . . . 383, 384
v. Weston.....380
Welton v. Missouri 66, 71, 72, 74 Westchester, &c. R. R.Co.
v. Miles.......248
West. Un. Tel. Co. v. Alabama .... 75, 82
v. Indiana.....250
v. James .....71
v. Massachusetts ... 81
v. Taggart.....81
v. Williams .... 369 Westervelt v. Gregg ... 353 Westonv. Charleston .. 62
West River Bridge Co. v. Dix 338 Wharton v. Wise .... 102Wheaton v. Peters .. 96, 149 Wheeler's Appeal .... 46 Wheeler v.Jackson ... 359
v. Knaggs.....93
v. Patterson .... 175 Wheeling Bridge Case . 70, 85, 88, 95Wheeling, &c. Bridge Co. v.
Wheeling Bridge Co. 248, 337 Wheelock Election Case . 283 Whitcomb'sCase .... 327 White v. Buchanan ... 349
v. Burnley.....206
v..Cannon.....190
v. County Commissioners ......377
v. Crow...... 350
v. Hart.....33, 344
v. Northwestern, &c. R.
R. Co......373
Whitehead v. Shattuck .. 151 Whitely v. Mississippi,&c.
Co.........376
Whitfield v. Le Despencer . 140 Whiting v. Barney ... 324Whitmore v. Harden ... 185 Whitney v. Richardson .. 362 Whitwell,Ex parte ... 251 Wightman v. Wightman . 199
Wilcox v. Hunt.....198
v. Jackson.....115
Wilkerson v. Rust .... 258
Wilkes's Case.....230
Wilkinson v. Greely ... 266 Willamette Bridge Co. v.
Hatch ... 22, 85, 86, 195 Willard v. People .... 171 Williamsv. Armroyd ... 205
v. Bruffy.....329
v. Cammack .... 57 v. City Ry. Co.... 374 v.Mississippi 194, 249, 294 v. Peyton .... 64, 362
v. Potter......284
v. Stein......281
v. Suffolk Ins. Co. . . 158 Williamson v. New Jersey .334
Willson v. Blackbird Creek
Marsh Co.......84
Wilson, Ex parte . . 148, 318
Wilson v. Fitch .... 307
v. McKenna .... 359
v. Stratton.....198
v. Sullivan.....303
Wimmer v. Eaton .... 282 Winona, &c. Land Co. v.
Minnesota......250
Wisconsin v. Doty .... 185
v. Duluth.....83
v. Pelican Ins. Co. 135, 200 Wisconsin Cent. R. R. Co.v.
Price Co.......63
Wise v. Withers .... 156 Wiswall v. Sampson ... 155Withers v. Buckley ... 69 Witten v. Tomlinson ... 147 Wong Wingv. United States 32, 109
Wood, Re.....148, 249
Wood's Appeal.....384
Woodruff v. Parham ... 86
v. Scruggs .... 356
v. Trapnall . . . . 93, 330
Woods v. Lawrence Co.. . 223
Woodward v. Supervisors . 223
Wooley v. Lyon .... 198
Woollen v. Banker ... 96
Worcester v. Georgia . 69, 176
Work v. State.....321
Worster v. Lake Co.... 200 Wright v. Cradlebaugh .. 361 Wurtsv. Hoagland ... 249
Y.
Yancy v. Yancy .... 359 Yarborough, Ex parte 107, 278 Yerger, Exparte .... 128 Yick Wo v. Hopkins 151, 249, 250
Z.
Zanesville v. Gas Light Co. 260 Zeiler v. Chapman ...280
INDEX.
A.
ACCUSED PARTIES.
(See BAIL; CRIMES; HABEAS CORPUS.)
ACTIONS,
for divorce.............. . 199
penal................200
local and transitory............199
rights in, are property......... 358, 359
ADMIRALTY JURISDICTION,
of federal courts..........129-132, 138
ADMISSION OF STATES,
how brought about.........187-195, 382
ALIEN AND SEDITION LAWS,
provisions of............ 108, 109
ALIENS,
how made citizens ......... 88, 269-271 may be given specialprivileges........89
AMBASSADORS,
jurisdiction of cases affecting........128-129
AMENDMENTS,
to federal Constitution........38, 218-223
discussion of provisions of first ten 224-233, 263-267, 294-
309, 317-327, 345-376
of thirteenth...........237-240
of fourteenth.......240-263, 268-275
of fifteenth...........290-294
to State constitutions ........213-216, 382
APPELLATE JURISDICTION,
of federal courts..........124-127, 148
APPOINTMENT,
to fill senatorial vacancy..........47-48
to offices by the President..........118
APPORTIONMENT,
of representatives............. 47
of taxes................365
APPROPRIATIONS,
no money to be drawn but la pursuance of ..... 120
APPROVAL OP LAWS,
by the President.........51, 119, 178-181
ARBITRARY ARRESTS,
forbidden..............229-233
relief from..........145-148, 315-317
ARBITRARY EXACTIONS,
on pretence of taxation...........358
ARMS,
right to keep and bear..........297-299
ARMY,
Congress may raise and support ........ 99
commander-in-chief............ 114
standing............... 298
ARREST,
privilege of Congressmen from........50
without warrant.............232
unlawful..............229-233
relief from..........145-148, 315-317
ART, WORKS OF,
copyright of............. 95, 96
ARTICLES OF CONFEDERATION.
(See CONFEDERATION, ARTICLES OF.)
ASSEMBLY,
right of...............294-297
ATTAINDER,
bills of, forbidden............310-312
in cases of treason..........104, 105
AUTHOR,
exclusive rights of...........95, 96
B.
BAIL,
right of accused parties to give........318
BALLOT,
voting by............48, 280-285
BANKRUPTCY,
power over..........89, 90, 343, 344
exemptions in cases of..........89, 90
BEARING ARMS,
right of...............297-299
BETTERMENT LAWS,
right to pass..............362
BILL OF RIGHTS,
of 1 William and Mary........... 7
none in the Constitution..........17
supplied by amendments.........17, 18
of State constitutions...........385
BILLS, LEGISLATIVE,
introduction of............ 51, 391
BILLS OF ATTAINDER,
prohibition of.............310-312
BILLS OF CREDIT,
States not to emit ............ 93
what are............... 93
BLASPHEMY,
may be punished............. 226
in publications............. 302
BOOKS,
copyright of.............95-96
criticism of............... 307
BORROWING MONEY,
power of, in Congress ........... 64
BOUNTIES,
offer of, may be recalled........... 331
BRIDGES,
State power to authorize .......... 85
C.
CHARTERS,
when contracts.......... . 333, 334
regulation of rights under ......... 338-342
CHECKS AND BALANCES,
in government, what are.........160-181
CHRISTIANITY,
recognition of, in the law.........224-227
CHURCH AND STATE,
union of, forbidden............224
CITIZENS,
who are.......... 89, 136, 137, 207
aliens, how made..........89, 269-271
of different States, may sue in federal courts . 123, 136, 137
of States, privileges and immunities of.....206-208
of the United States, privileges and immunities of. . 272-274
CITIZENSHIP,
of colored persons............270
of Indians...............270
how acquired ............269-270
how lost...............271
in State and nation ............ 271
CIVIL LIBERTY,
meaning of .............246-247
CIVIL RIGHTS,
religious liberty............ 224-227
security of dwelling, person, and papers.....228-232
freedom guaranteed...........233-240
guaranties of life, liberty, and equality.....240-263
right to jury trial in civil cases ....... 263-267
CLASS LEGISLATION,
not admissible ............247-248
COINING MONEYS,
power over..............90
what it consists in........... 91-92
COLONIES, AMERICAN,
legislation for.............4-6
imperial taxation of...........5, 6, 8
right to common law in........... 6
violations of constitutional right in....... 8
COLOR,
not to affect suffrage...........290-295
COLORED PERSONS,
citizenship of.............268-269
rights of, in schools............253
COMITY,
interstate..............196-213
COMMANDER-IN-CHIEF,
President to be............. 114
COMMERCE,
Congress may regulate...........66
meaning of...............67
includes telegraphic communication.......67
between the States, what is........68, 69
with Indian tribes............69
embargo as a regulation of..........70
power to regulate exclusive in national government . 71-79
concurrent power...........70
cases of bridges, dams, and ferries.....83-86
must not be hampered by State taxes.....73-76
or by police power..........76-79
power of the State...........79-83
(See COMMON CARRIERS; POLICE POWER.)
COMMON CARRIERS,
regulation of business of......71-83, 258-260
(See RAILROAD COMPANIES.)
COMMON LAW,
what it is...............7, 8
colonists entitled to............ 8
in the States.............149-150
United States has none...........149
COMPACT,
the Constitution not a........... 27
COMPACTS BETWEEN STATES,
what may be entered into..........101
COMPENSATION,
of members of Congress ........... 50
of the President.............120
for property taken for public uses ...... 375-377
CONCURRENT POWERS,
of State and nation..........35, 36, 70
CONFLICT OF LAWS,
under the federal Constitution.......31-33
how may arise.............196
in cases of contracts and transfers of property . . . 196-199
in questions of marriage and divorce.......199
in cases of penal prosecutions .........200
in local and transitory actions........199-201
as to corporations...........201, 202
CONFLICTS OF JURISDICTION,
how dealt with............152-155
CONFRONTED WITH WITNESSES,
right of accused party to be.........323
CONGRESS,
powers of, in general...........55
to lay and collect taxes........55-66
to contract debts...........64
to regulate commerce.........66-88
over naturalization.......... 88, 270
over bankruptcy...........89
to coin money............90
to issue paper money..........91
to regulate weights and measures......94
to punish counterfeiting.........94
in respect to post-offices and post-roads .... 94 in respect tocopyrights and patents .... 95, 96
to punish piracies, &c...........97
to declare and conduct war.......98-101
to govern ceded districts........102-104
to punish treason........104, 314, 315
non-enumerated and implied.......105-110
restrictions on . . 111-113, 224, 228, 229, 263-267,
294-304, 310-327
to suspend the habeas corpus.......316-317
to create and regulate courts........124
to determine finally political questions.....157
to hold other departments in check .... 160-182
to govern the Territories........182-186
to admit new States.......187-195, 383
CONGRESS continued.
powers of, to protect republican government in the
States............. 213-217
to propose amendments to the Constitution . . . 218 to create municipalcorporations.......379
CONSCIENCE,
freedom of..............224-227
CONSEQUENTIAL INJURIES,
in exercise of eminent domain .... 370, 371, 373-376
CONSTITUTION,
definition of...............22
written and unwritten............22
of Great Britain............6, 7, 24
CONSTITUTION OF THE UNITED STATES,
formation of..............15, 16
adoption of............15, 16, 26, 27
sovereign powers under.......... 22, 23
not a mere compact...........27-29
is a grant of powers.......... . 29-31
is supreme ..............31-34
amendment of...........38, 218-223
modification of powers under........ 39-40
CONSTITUTIONAL CONVENTION,
work of...............15, 16
in the States...............382
an agency of sovereignty...........384
CONSTITUTIONAL GOVERNMENTS,
what are................ 22
CONSTITUTIONS OF THE STATES,
formation of the first.......... 9, 10, 381
powers under.............22, 23
fundamental principles of..........23, 386
must yield to federal Constitution.......32, 386
admission of States under.......187-195, 383
right to amend...........213-216, 383
formation of..............381-386
contents of...............385
character of...............386
interpretation of............386-390
special provisions of...........390-392
CONSTRUCTION,
of the provisions for protection of individual rights . 17-19
final authority in............157-159
of State constitutions...........386-392
CONTEMPTS,
of Congress.......... . . . . 49-50
of authority in general...........327
CONTESTED FACTS,
legislature not to decide........... 46
CONTESTING ELECTIONS,
methods of............283, 289, 290
CONTINENTAL CONGRESS,
powers of................ 8-11
CONTRACTS,
States may not impair obligation of, by their laws . . . 328
what is a law...........329
what are........329, 330, 331-334, 342-345
obligation of...............329
when statutes are.............331
offices are not.............. 332
statutory privileges are not..........332
essential powers of government not subjects of, in general
334-337
of the State not to tax..... ...... 335
of the State to give exclusive privileges .... 336-338
State regulation of....... . . . . 338-342
control of remedies upon......... 342-344
illegal or immoral.............344
States cannot add to............ 344
whether Congress may violate.........347
validating imperfect............ 354-356
COPYRIGHT,
power over...............95
CORPORATE CHARTERS,
protection of............333, 336-312
regulation of rights under ......... 339-342
CORPORATE PROPERTY,
of municipalities, protection in . . ..... 379, 380
CORPORATIONS,
chartered by Congress, taxation of.......61-63
powers of, limited to jurisdiction where created . . 201-202
protection of charters of......333, 337, 339-342
municipal...............378, 380
COUNSEL,
right to................323
privilege of...............303
COUNTERFEITING,
punishment of..............94
COURTS,
creation of...........52, 53, 123, 124
essential-powers of.............155
martial.................156
military.............52, 156, 157
territorial............52, 53, 155, 186
political questions in........... . 157
(See JUDICIARY.)
CRIMES,
against the United States, what are.......149
legislative punishments for.........310-314
treason and its punishment.........314, 315
accusations of, by indictment........317, 318
infamous, what are.............318
trials and punishments for.........319-326
CRITICISM,
of persons, books, &c., by the press ...... 306-309
CROWN OF GREAT BRITAIN,
control of colonies by............ 4-6
CRUEL AND UNUSUAL PUNISHMENTS,
forbidden................324
CURATIVE LAWS,
when may be passed...........354-357
CUSTOMS DUES,
power to levy and collect.........55-64
D.
DAMAGING,
property in the exercise of the eminent domain . . 371-374
DAMS,
of navigable waters........83, 84, 107, 108
DEBT, PUBLIC,
power to create.............65
constitutional provisions respecting......65, 66
DEEDS,
curing defective, by legislation........354-356
DEFINITION,
of bills of attainder...........310-312
of citizens............... 88
of civil liberty..............247
of constitution............. 22
of due process of law..........241-245
of eminent domain............363
of establishment of religion.........224
of executive power...........44-45
of ex -post facto law............312
of infamous crime.............318
of judicial power.............45
of legislative power............44
of liberty .............246-247
of liberty of the press..........299-309
of nation................20
of people................295
of police power............250, 338
of political liberty.............247
of privileged communication.........302
of property...............345
of right of revolution............25
of sovereignty..............21
of State................20
of treason...............315
of unconstitutional law.......... . 24
of vested rights............351-352
of mandatory and directory statutes...... 390
DELEGATION OF POWERS,
by legislative bodies..........111, 112
DENYING EQUAL PROTECTION OF THE LAWS,
discussion of State action.........247-250
DEPARTMENTS OF GOVERNMENT,
apportionment of powers to.........44-54
each a check upon the others........160-195
DIRECT TAXES,
what are...............63, 64
DISCUSSION, FREEDOM OF.
(See PRESS, FREEDOM OF.) DISTRICT OF COLUMBIA,
government of............102, 379
DIVORCE,
conflict of laws in respect to ....... 199, 254
DOMICILE,
protection of.............228-231
as determining rights .... 196-201, 252-254, 347-348 DOUBLEPUNISHMENT,
forbidden..............325, 326
DUE PROCESS OF LAW,
meaning of.............241-245
in criminal cases............. 326
DUTIES AND IMPOSTS,
may be laid..............55-65
DWELLING-HOUSE,
protection of.............228-231
E.
EDUCATION,
right to................255
ELECTIONS,
of representatives in Congress . . 47, 48, 275-278, 285-288
of senators..............47, 48
basis of suffrage for........276-277, 278
qualifications of electors.......278, 290-294
general rules governing......... 278-290
ELECTORS OF PRESIDENT,
choice by.............52, 161
ELIGIBILITY,
of persons to office............285
EMANCIPATION,
history of..............233-240
EMBARGO,
power to declare............. 70
EMINENT DOMAIN,
law of the..............363, 377
EMPLOYMENT,
privilege to engage in..........255-258
regulation of.............255-258
prohibition of, injurious...........257
ENABLING ACT,
for admission of State to Union.....189-191, 382
ENGLAND,
constitution of.............22, 24
separation from..............3-18
EQUALITY,
religious...............224-226
of civil rights..............247
in elections............. 292-294
EQUAL PROTECTION OP THE LAWS,
right to........... 247-250, 255-257
ESTABLISHMENTS, RELIGIOUS,
meaning of...............224
EVIDENCE,
change in rules of.............360
EXCESSIVE BAIL,
not to be required............318
EXCISE TAXES,
levy of................ 56
EXCLUSIVE PRIVILEGES,
grant of, in navigation........... 73
to authors and inventors.......... 95
under State police regulations .... 80, 262, 336, 370
EXECUTIVE DEPARTMENT.
(See PRESIDENT.)
EXECUTIVE POWERS,
separated from others........... 44
EXEMPTIONS,
of property from taxation........ . 227, 335
under bankrupt laws............ 90
EXPORTS,
State taxes on.............. 86
federal taxes on............. 87
EX POST FACTO LAWS,
prohibition of.............312-314
EXPULSION,
from Congress.............. 49
EXTRADITION,
as between the States..........208-212
F. FAITH AND CREDIT,
to be given acts and records of other States . . . 202-206 FEDERALCOURTS.
(See JUDICIARY, FEDERAL.) FERRY FRANCHISES,
State power to create...........83, 84
FIFTEENTH AMENDMENT,
to Federal Constitution discussed......290-294
FISHERIES,
State rights in...........132, 208
FORFEITURES,
of political rights...........271, 279
in enforcing taxes............ 362
FOURTEENTH AMENDMENT,
to Federal Constitution discussed . . . 240-263, 268-275 FRANCHISES,
political...............275-280
corporate...........83, 333, 338, 339
municipal............334, 378, 380
FREEDOM,
made universal...........233-240
FUGITIVES FROM JUSTICE,
return of, as between the States ...... 208-212
FUGITIVES FROM SERVICE,
return of...............212
G.
GENERAL LAWS,
incidental injuries from........345, 351-354
GENERAL WARRANTS,
illegality of..............239
GOVERNMENT,
departments of ............ 44-54
agencies of, not to be taxed.........62
checks and balances in.......... 160-181
libels on...............304
GOVERNOR,
not subject to judicial process......... 122
duty in extradition proceedings ....... 209-211
GRAND JURY,
when required............317, 318
GRANTS,
by States cannot be recalled ......... 329
GREAT BRITAIN.
(See ENGLAND.) GUARANTY,
of republican government to the States . . . . . 213-217
H.
HABEAS CORPUS,
Act of 31 Charles I............ 7
federal jurisdiction or writ of ...... 146-148, 315
suspending privilege of.......... 315-317
HARBOR REGULATIONS,
States may make ............. 70
HEALTH LAWS,
States may pass............ 71, 79
HIGH SEAS,
crimes upon.............. 97
HIGHWAYS,
taking for railroads, &c.........373, 374
providing for, is a State duty.........380
HOUSE OF REPRESENTATIVES,
constitutional provisions respecting......47-51
impeachment by............. 177
HUSBAND AND WIFE,
laws changing prospective rights of.......352
(See DIVORCE; MARRIAGE.)
L
ILLEGAL CONTRACTS,
have no obligation ........... 329, 330
IMMUNITIES,
of citizens of States, what are........206-208
of citizens of United States........272-274
IMPAIRING CONTRACTS,
by State laws forbidden.........328-315
IMPARTIAL ACCOMMODATIONS,
by carriers and innkeepers....... 79, 258-259
IMPARTIAL PROTECTION,
right to...............247-249
IMPEACHMENT,
power in respect to.......... 177, 178
IMPLIED POWERS,
of Congress, what are .......... 105-111
IMPLIED PROHIBITIONS,
on taxation.............61-63
on interference with interstate commerce .... 71-79
on State action..........274-275, 384
IMPORTERS,
State taxes upon...........73, 74-77
IMPOSTS,
levy of................55-65
IMPRESSMENT,
of sailors................ 91
IMPRISONMENT,
relief from, on giving bail...........318
habeas corpus in cases of......145-148, 315-317
IMPROVEMENTS,
when owner of lands may be compelled to pay for . . . 363
INCHOATE RIGHTS,
may be taken away...........351, 352
INDEPENDENCE,
Declaration of.............3, 8, 9
INDIAN TRIBES,
regulation of commerce with.........66, 69
members of, are not citizens..........270
INDIANS,
may be citizens ..............270
INDICTMENT,
of accused parties........... 317, 318, 322
INELIGIBILITY OF CANDIDATE,
effect of..............285, 289
INFAMOUS OFFENCE,
what is.................318
INNKEEPERS,
regulation of business of........240, 258, 259
INQUISITORIAL TRIALS,
forbidden................ . 322
INSOLVENT LAWS,
States may pass...........89, 90, 344
INSPECTION LAWS,
of the States..............71, 87
INSTRUCTION OF REPRESENTATIVES,
right of...............42-43
INSURRECTIONS,
protection of States against .......... 217
INTEREST,
State control of rates of...........260
INTERNATIONAL LAW,
what it is................21
certain principles of........... 196-202
INTERSTATE COMMERCE,
regulation of..............66-86
INTIMIDATION,
effect on elections...........286-288
INTOXICATING DRINKS,
regulation of sale of . , ......77, 80, 257, 258
INVASIONS,
protection of States from...........317
INVENTIONS,
exclusive rights in.............95
INVOLUNTARY SERVITUDE,
prohibited..............237-240
IRREGULARITIES,
in elections, effect of...........283-285
IRREPEALABLE LAWS,
not to be passed .............. 112
J.
JEOPARDY,
meaning of..............325, 326
JOURNAL OF CONGRESS,
to be kept and published..........49, 50
JUDGES,
of civil courts .............. 52-54
of territorial courts..........53, 118, 186
can be required to perform only judicial duty . . . 53, 54
impeachment of..............177
JUDGMENTS,
of one State to be respected in others.....202-206
JUDICIARY,
may set aside unconstitutional law......164-174
power of as respects the executive......175-177
territorial...........53, 118, 155, 186
curing defects in proceedings of ........ 357
JUDICIARY, FEDERAL,
grant of power to............52, 123
creation of courts............53, 124
jurisdiction of federal questions by......124-128
of cases affecting ambassadors, &c.......128
of admiralty and maritime causes.....129-132
of suits against the United States ...... 132
of suits by and against States......134-137
of other suits............136
exclusive..............138
original............138, 139
JUDICIARY, FEDERAL, continued.
jurisdiction by transfer of causes to......139-145
of writ of habeas corpus........145-148
appellate...........124-128, 148
what laws administered by.........149-152
conflicts of jurisdiction.......... 152-155
essential powers of............155
political questions in...........157
final authority in construction........158, 159
JUDICIARY, STATE,
may take cognizance of federal questions.....125
appellate jurisdiction over.......125-128, 148
transfer of causes from..........139-145
jurisdiction of suits affecting personal liberty . . . 145, 146
law administered by...........149-152
judgments of, to be respected in other. States . . . 203-204 JURY,
trial by, in the colonies........... 8
in civil cases in federal courts......263-267
in cases of libel............308
in criminal cases...........321
privileged discussions in the.........303
JUSTIFICATION,
in libel cases..............308
L.
LAW OF NATIONS,
what is................21
certain principles of...........196-202
LAW OP THE LAND,
right to, by Magna Charta.......... 6
what is the..............241-246
LEGAL TENDER,
power to make............90-93
LEGISLATIVE DEPARTMENT,
creation and organization of........47-51
proceedings and journals of........49-51
not to exercise judicial power........310-314
when enactments of, may be set aside.....164-174
under State constitutions..........386
LEGISLATIVE POWERS,
assignment of, to one department....... 445
not to be delegated............ 111
acts in excess of, are void.........164-174
in the Territories ............183-186
of municipal bodies...........380, 390
in State legislatures............386
LEGISLATORS,
privilege of, from arrest...........50
from actions............174, 303
LEGISLATURES, TERRITORIAL,
what they are and their powers ....... 184, 185
LIBEL,
law of...............299-309
LIBERTY,
the birthright of............4, 6, 9
guaranty of.............240-246
religious..............224-227
meaning of..............246, 247
LIBERTY OP SPEECH AND PRESS,
law of...............299-309
LIBERTY, RELIGIOUS,
protection of.............224-227
LICENSE,
to follow certain employments ........ 255-258
LIMITATION LAWS,
cutting off contracts by...........359
LITERARY PRODUCTIONS,
rights in..............95, 96
LOCAL SELF-GOVERNMENT,
the right to.............378-380
LORD'S DAY,
legislation for observance of . ........227
M. MAGNA CHARTA,
a charter of liberty............ 6
MAJORITY RULE,
restraints upon............40, 41
MALICE,
in official action............174, 175
in injurious publications......... 306, 309
MARITIME CASES,
jurisdiction of...........129-132, 138
MARRIAGE,
conflict of laws in respect to......199, 252, 253
MARTIAL LAW,
suspends habeas corpus..........316, 317
courts to administer.........53, 156-157
MEASURES AND WEIGHTS,
Congress to fix standards of.........94
MESSAGES,
of the President.............119
MILITARY,
at the polls...............287
quartering on the people.........228, 229
MILITARY COURTS,
creation and powers of........53, 156-157
MILITARY LAW,
to be prescribed by Congress.........100
MILITIA,
enrolment and government of........100, 101
(See SOLDIERS.) MILL-DAMS,
taking property for............368
MISSOURI,
compromise on admission of .... 192, 234, 235, 268 MONEY,
power of Congress in respect to.......90-93
counterfeiting..............94
MONOPOLIES,
in the use of navigable waters........73, 84
under State police regulations........80, 262
in general are illegal...........262, 263
combinations to effect...........263
MUNICIPAL CORPORATIONS,
place of, in constitutional law.........378
general rules respecting .... . .. . .. 378-380
413
N. NATION,
definition of...............20
balanced against States..........160, 161
NATIONAL BANKS,
power to create..............107
taxation of...............62
NATIONS, LAW OF,
what it is................21
rules of comity by............196-202
NATURAL LIBERTY,
meaning of..............246, 247
NATURALIZATION,
power over............... 88
citizenship by.............270, 271
discriminations in............. 292
NAVIGABLE WATERS,
bridges, dams, and ferries over........83-85
right of free navigation...........73
NAVIGATION,
regulated by Congress ........ 67, 68, 72, 73
NAVY,
Congress may provide and maintain.......100
NECESSITY,
underlies the law of eminent domain . . 363, 364, 398, 369
NEW STATES,
how admitted to the Union.....187-195, 382, 383
NEWSPAPERS,
privileges of..............299-309
NOBILITY,
titles of, not to be granted.........113, 217
0.
OBLIGATION OF CONTRACTS,
States not to impair...........328-345
what is................312
OFFICE,
appointment to, not a contract.........332
OFFICERS,
appointment and removal of........118, 119
liability of, to suits........140, 141, 174, 175
ORDINANCE OF 1787,
references to............86, 234, 237
P.
PAPERS,
private, security of...........229-231
PARDONS,
power to grant...........115-117, 178
PARLIAMENT,
control of Colonies by............4-6
sovereign powers of...........22, 23
PASSENGERS.
(See COMMON CARRIERS.) PATENTS,
power to grant............. 95, 96
PEACE AND WAR.
(See TREATY; WAR.) PENAL LAWS,
not enforced in foreign State..........200
PENALTIES,
legislative release of............359
PEOPLE, THE,
sovereignty reposes in............23
meaning of..............295, 383
PERSONAL LIBERTY.
(See HABEAS CORPUS.) PETITION, RIGHT OF,
meaning and extent of..........294-297
PETITION OF RIGHT,
provisions of............... 7
POLICE POWER,
belongs to the States...........79, 351
meaning of.............250, 338
monopolies under............80, 262
regulations of, affecting commerce......76-78, 79
general regulations under......250-263, 338-341
POLITICAL LIBERTY,
meaning of...............247
POLITICAL QUESTIONS,
courts cannot determine..........157, 217
POLITICAL RIGHTS,
citizenship...........268-275, 290-294
suffrage and elections..........275-294
right of assembly and petition.......294-297
right to keep and bear arms........297-299
freedom of speech and of the press.....299-309
POST-OFFICES AND POST-ROADS,
power to establish............94-95
POWERS OF GOVERNMENT,
distribution of..............44
PRESENTS,
what not to be accepted by officers, &c.......113
PRESIDENT,
election of................ 52
general powers of............ 114-122
veto power of.........51, 119, 120, 178-181
compensation of..............120
independence of..............121
subject to impeachment .......... 177, 178
PRESS, LIBERTY OF,
meaning of the.............299-309
privileged cases............. 302-309
truth as a protection...........307, 308
jury the judges of the law .......... 308
PRICES,
regulation of.............259-261
PRIVATE PURPOSES,
taxes not to be laid for...........59
property not to be taken for.........365-3'68
PRIVILEGED PUBLICATIONS,
what are...............302-309
PRIVILEGES,
of members of Congress.........50, 51, 303
of citizens of the States..........206-208
of citizens of the United States........272-274
exclusive......73, 80, 84, 95, 96, 262, 336-338
PROCESS,
constructive service of........... 204, 205
PROPERTY,
right to acquire.............206
protection of........246, 260, 261, 345-377
PUBLIC CORPORATIONS,
their place in the government........378-380
not subject to taxation...........62
PUBLIC DEBT,
constitutional provisions respecting......65, 66
PUBLIC DOMAIN,
control of..............185-186
taxation of, by States..........62, 63
PUBLIC GRANTS,
cannot be recalled or impaired........325-345
strict construction of............ 336
PUBLIC PURPOSES,
what will support taxation.........59-61
taking property for...........363-377
PUBLIC SECURITIES,
counterfeiting.............. 94
PUNISHMENTS,
legislative, forbidden...........310-312
for crimes in general............ 324
for contempts of authority..........327
Q.
QUALIFICATIONS,
of electors...........278, 279, 290-294
want of, in candidates...........285
QUARANTINE,
right to establish regulations of ....... 71, 76
QUARTERING SOLDIERS.
(See SOLDIERS.)
R.
RACE,
not to disqualify from voting.........290-294
as affecting naturalization...........292
RAILROADS,
regulation of communication by... 67, 75, 76, 77, 78, 80,
260, 261
taxes on freight carried by..........75
bridges for..............67, 83-86
on franchises...............83
taxation of..............249, 250
must provide equal accommodations.......258
regulation of fares on..........259, 261
protection of charters of.........333-342
taking lands for...........367, 368, 374
REBELLIONS,
protection against.............217
RECONSTRUCTION,
of States.............190, 191, 216
RECORDS,
of one State to be respected in the others . . . 203-206
REGISTRATION,
of voters................280
RELIGIOUS LIBERTY,
protection of.............224-227
REMEDIES,
for wrongs, State control of........360-362
REMOVAL OP CAUSES,
to federal courts............139-145
REPEAL OF CHARTERS,
when lawful..............320, 378
REPRESENTATIVES,
instruction of.............. 42-43
apportionment and election of........47-49
qualification of.............47, 49
privileges of..............50, 303
REPRIEVES,
power to grant............115, 116
REPUBLICAN GOVERNMENT,
guaranty of, to the States.........213-217
RESERVED RIGHTS,
what are...............35-37
RESOLUTIONS OF '98 and '99,
what they were............109, 110
RETROACTIVE LAWS,
in criminal matters forbidden........ 312-314
in civil matters ............ . 354-360
REVENUE, FEDERAL,
provisions for raising.......... 51, 55-65
REVOLUTION,
right of................25, 26
American...............3-11
RIGHTS,
English bill of..............7, 17
reserved by the Constitution.........34-37
ROADS,
providing for..........364, 373-376, 380
& SCHOOLS,
rights in................255
SEARCH-WARRANTS,
issue and execution of..........229-232
SEARCHES AND SEIZURES,
unreasonable, forbidden . . .......229-233
in the Colonies.............. 8
SECEDED STATES,
not out of the Union...........27-28
how restored to representation......190, 191, 216
SECRECY,
right to, in elections ...........280, 281
SEDITION LAWS,
provisions of.............108-110
SELF-EXECUTING PROVISIONS,
of constitutions, what are........238-240, 274
SELF-GOVERNMENT, LOCAL,
rules respecting............378-380
SENATE, FEDERAL,
constitutional provisions respecting...... 47-51
SEPARATION,
of powers of government..........44, 45
SERVITUDE.
(See SLAVERY.)
SLANDER,
rules of liability for...........299-309
SLAVE-TRADE,
prohibition of..............113
SLAVERY,
abolished...............233-240
SOLDIERS,
quartering of, on the people..........228
(See ARMY; MILITARY; MILITIA.) SOVEREIGN POWERS,
what are............... 20, 21
in the Colonies before the Revolution....... 3
in the States..............16, 17
apportionment of, in the United States......21, 22
SOVEREIGN STATE,
what is ................20
SPECIAL PRIVILEGES,
strict construction of........ .... 337
appropriation of, to public uses.......341, 369
SPEECH, FREEDOM OF,
meaning and extent of...........299-309
SPEEDY TRIAL,
right to ................320
STAMP ACT,
repeal of................ 5
STANDING ARMIES,
objectionable..............8, 299
STATE,
meaning of...............20
STATE CONSTITUTIONS,
how formed and accepted......187-195, 381-383
must not conflict with federal powers......32, 383
(See CONSTITUTIONS OF THE STATES.) STATE LAW,
when federal courts administer.......149-152
STATE RIGHTS,
what are..............33-37, 384
STATES OF THE UNION,
now formed and admitted.....187-195, 381-381.
may not withdraw............27-28
STATES OF THE UNION continued.
are indestructible.............29
subordination of, as to federal powers.......32
powers of, when concurrent with federal . . . 36, 37, 70, 83
are exempt from federal taxation........62
may not tax national agencies........61-63
power of, over legal tender.........91-92
may not emit bills of credit.......... 93
suits by and against, in federal courts.....132-134
balanced against the Union........161-163
division of............... 191
guaranty of republican government to ..... 313-217 protection of,against rebellion and invasion ..... 217
conflicting claims to government of........216
citizenship in...............272
privileges of citizens of.........206-208
not to pass bills of attainder..........310
nor ex post facto laws........312-314
nor enter into treaty, &c..........101
nor impair contracts.........328-345
police powers of ......76, 79, 250-263, 338-342
power of, in matters of war..........101
may pass retroactive laws ........354-358
may take property for public uses...... 363-377
rules of comity between.........196-212
right of people to establish constitution of.....382
constitutions, how formed........381-384
of, contents..............385
length of..............386
provisions of...........385-392
how construed...........386-390
STATUTES,
enactment of.............390-392
STATUTORY PRIVILEGES,
strict construction of............ 336
may be taken away........... 332, 333
STAY LAWS,
when invalid.............343, 344
SUFFRAGE,
sometimes given to aliens . . ........89
general rules respecting........263, 275-280
SUMPTUARY LAWS,
illegal.................263
SUNDAY,
laws for observance of............227
SUPREME COURT, FEDERAL,
creation of...............53
jurisdiction............124-129, 145
SUPREME LAWS,
what are...............31-33
SURRENDER OF OFFENDERS,
as between the States....... . . . 308-212
T.
TAKING OF PROPERTY.
(See EMINENT DOMAIN.)
TAXATION,
in the Colonies............. 5
by Congress...........55-59, 63-64
not for private purposes..........59-61
of government agencies..........61-63
discriminations in.......206, 208, 250, 273
of commerce by the States ... 68, 73, 74, 75, 80, 82, 83 in violation ofcontracts ......... 335, 336
curing irregular............ 357, 358
TELEGRAPHIC CORRESPONDENCE,
regulation of, by Congress..........67
TERRITORIES,
constitution not made for . . . .......37
dependence of.............37, 38
courts of........53, 54, 118, 155, 156, 186
government of............182-186
THIRTEENTH AMENDMENT,
to Federal Constitution, discussed......237-240
TITLES OF NOBILITY,
prohibited..............113, 217
TONNAGE DUTIES,
States not to levy...........87, 96
TRADE-MARKS,
exclusive rights in............96
TREASON,
definition and punishment of......105, 314, 315
TREATIES,
supreme authority of......31-32, 117, 118, 175
power to make..........117, 118, 175
TRIAL,
general right to............243-245
by jury in civil cases...........263-267
in criminal cases...........8, 319-326
TRUSTS,
governmental.............23, 332
commercial...............69
interests may be converted..........353
TWICE IN JEOPARDY,
accused parties not to be put in . ......325, 326
U.
UNCONSTITUTIONAL LAWS,
what are...............24
how and when set aside.......... 164-174
UNITED STATES,
how formed ............9, 25-27
union of, indissoluble...........28
suits by and against............132
(See CONGRESS.)
UNREASONABLE, bail. (See BAIL.) searches, &c. (See SEARCHES ANDSEIZURES.)
V.
VACANCIES,
in Congress, how filled.......... 47-49
in the presidency............. 52
in federal offices............. 119
VALIDATING CONTRACTS.
(See CURATIVE LAWS.)
VESTED RIGHTS,
may not be taken away..........351, 352
VETO POWER,
exercise of...........51, 119, 178-181
VICE-PRESIDENT,
constitutional provisions respecting......48, 52
VOID STATUTES.
(See UNCONSTITUTIONAL LAWS.) VOTERS.
(See ELECTIONS.)
W. WAR,
Congress may declare and conduct......98-102
WARRANTS,
for searches.............229-231
arrests without.............232
WATER-COURSES,
general regulation of........69, 72, 73, 79
exclusive privileges in..........73-84
WEIGHTS AND MEASURES,
Congress to fix standards of.........94
WITNESSES,
rights of accused to be confronted by......323
WORKS OF ART,
exclusive rights in............96
WRITS OF ASSISTANCE,
illegality of..............232
