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BY JOHN RANDOLPH TUCKER, LL.D., LATE PROFESSOR of CoNSTITUTIONAL AND INTERNATIONAL LAW AND EquTTY, WASHINGTON AND LEE UNIVERSITY. IEDITED BY HENRY ST. GEORGE TUCKER, PROFESSOR of ConstituTIONAL AND INTERNATIONAL LAW AND EquTTY IN WASHINGTON AND LEE UNIVERSITY, TVOLUME II. CHICAGO: CALLAGHAN & CO. 1899. COPYRIGHT, 1899, BY CALLAGEIAN & CO. STATE JOURNAL PRINTING COMPANY., PRINTERS AND STEREOTYPERS, MADISON, WIB, CONTENTS. TV OLUIME II. CHAPTER X-CONTINUED. Pages. THE LEGISLATIVE DEPARTMENT (continued) . . . . . . 519–666 To regulate commerce, etc., 519, 558. To “establish a uniform rule of naturalization,” 558,559. To control bankruptcy, 559–563. To punish counterfeiting, 564, 565. To establish post-offices, etc., 565–572. Power over copyrights and patents, 572, 573. To estab- lish inferior courts, 573–576. To declare war, raise and support armies, provide and maintain a navy, etc., 576–581. Power over the militia, etc., 581–597. Over the seat of government, 597–600. The co-efficient power, 600–602. To admit new States, 602–610. New States, of what constituted and how admitted, 610, 616. Power to punish treason, 616—624. Power over public acts, rec- ords, etc., 624–627. Privileges and immunities of citizens, 627– 684. Guarantee of republican form of government, 634–642. Ex- press limitations on Federal power,642–652. Prohibition against bills of attainder and ea post facto laws, 652–666. CHAPTER XL THE FIRST TEN AMENDMENTs. . . . . . . . . . . 667-693 The First Amendment, 667–671. The Second and Third Amend- ments, 671, 672. The Fourth Amendment, 672, 673. The Fifth Amendment, 673–678. The Sixth Amendment, 678–682. The Seventh Amendment, 682–686. The Eighth Amendment, 686, 687. The Ninth Amendment, 687–689. The Tenth Amendment, 689–692. CHAPTER XII. THE EXECUTIVE DEPARTMENT . . . . . . . . . . . 693–752 The President possesses executive powers and none other, 693, 694. The President an officer of the United States, 694. Man- ner of electing; by electors, 695–701. Change in mode of elect- ing by Twelfth Amendment, 701, 702. The Tilden-Hayes con- tested election, 702–704. Number of electoral votes necessary iV CONTENTS. Pages. to an election, 704. When may the House elect, 705. Mode of election of Vice-President, 705–708. Criticism of electoral col- lege as a mode of electing, 709, 710. Eligibility to the office of President, 711. Disability of President to discharge duties of office, 711–714, Powers and duties of President, 715–723. Extent; of power of the President and Senate to make treaties, 723–732. Power to nominate, etc., ambassadors, etc., 732–740. Power to fill vacancies, etc. 740–743. Duty to give Congress information by message, etc., 743, 744. Power to receive ambassadors, etc., 744– 748. Duty to see that laws are faithfully executed, 748. May be impeached, 748. Examples of questionable exercise of power by Presidents, 749–752. CHAPTER XIII. THE JUDICIAL DEPARTMENT . . . . . . . . . . . 753–820 Judicial power vested in one Supreme Court, 755. Inferior courts, 756. Extent of judicial power of United States, 757-760. Jurisdiction of United States courts, 760–769. Extends to all cases in law and equity, 769. Cases affecting ambassadors, etc., 770–772. Admiralty and maritime jurisdiction, 772–781. “Con- troversies to which the United States shall be a party,” 782–784. “Controversies between two or more States,” 784,785. Between “a State and citizens of another State,” 785–797. Appellate ju- risdiction of Supreme Court over judgments of State appellate courts, 798–800. Can any part of judicial power of the United States be vested in State courts? 800–804. Can a State court en- force a right arising under a law of the United States? 804–810. Power of removal of cases from State to Federal courts,810–815. Right of habeas corpus branch of appellate jurisdiction of the Supreme Court, 815–819. CHAPTER XTV. LIMITATIONS ON THE PoweRS OF THE STATES . . . . . . . . 821–874 Two classes of—absolute and qualified, 821,822. Absolute—no State shall “grant letters of marque and reprisal,” 823. Or “coin money,” 823. Or “emit bills of credit,”824, 825. Or “make any- thing but gold and silver coin a tender in payment of debts,” 825–827. Or “pass any bill of attainder, ea post facto law, or law impairing the obligation of contracts,” 827–840. Or “grant any title of mobility,” 840, 841. Qualified limitations upon, 841. No State shall without consent of Congress lay any imposts or duties, etc., 841–844. Or, “without consent of Congress, lay any duty of tonnage,” 844. Or “keep troops or ships of war, in time of peace,” etc., 844–846. Effect of post-bellwm amendments on CONTENTS. V Pages. the powers of the States, 846–852. Privileges or immunities of citizens of the United States not to be abridged by the States, 852–854. Due process of law and equal protection of the laws discussed, 854–872. APPENDIX . . . . . . . . . . . . MAGNA CARTA . . . . . . . . . . . PETITION OF RIGHT – A. D. 1628 . . . . . BILL of Rights–A. D. 1689 . . . . . . RESOLUTIONS OF CONGRESS, OCTOBER 14, 1774 . VIRGINIA RESOLUTIONS, DECEMBER, 1798 . . . KENTUCKY RESOLUTIONS, NOVEMBER, 1798 . . ACTION OF STATES ON VIRGINLA RESOLUTIONS . CONSTITUTION OF THE UNITED STATES . . . DECLARATION OF INDEPENDENCE . . . . . ARTICLES OF CONFEDERATION . . . . REsoluTIONS AND LETTER TRANSMITTED TO CONGRESS FEDERAL CONVENTION . . . . . . . © Q & 875 . . . 875–877 . . . 878, 879 . . . 880–885 . . . 886–891 . . . 891–893 . . . 893, 894 . . . 894–898 . . . 899–918 . . . . 919–924 . 924–933 BY THE . . . 934—936 CONSTITUTION AT, T, A.W. gºmºsºmsº CHAPTER X. — CONTINUED. THE LEGISLATIVE DEPARTMENT—CONTINUED. THE POWER OVER COMMEROE. § 250. The commerce power is contained in these words: “To regulate commerce with foreign nations and among the several States, and with the Indian tribes.” Blackstone” speaks of the English power over commerce in this language: “The power over all the coast, over navi- gable rivers and havens, the power of erecting beacons, light-houses and sea-marks, and of regulating importations and exportations, and prohibiting the incoming and outgo- ing of persons, are all parts of the royal prerogative.” The exercise of this great prerogative was from time to time attempted before the Revolution of 1688 by laying duties upon imports. It was argued that as the king in regulating trade might exclude it, he could lay a tax or duty on its admission. Mr. Hallam gives an interesting account of the struggle in his Constitutional History.” In the reign of James I. a case arose in which the issue was made upon the royal prerogative.” When the Articles of Confederation were adopted, the power to regulate commerce was reserved to each State, except that Congress had power to make com- mercial treaties and to regulate trade with the Indians. The authors of the Federalist indicate the dreadful condition in which this left the States of the Confederation. Each State competed with every other for advantages in the trade with 1Const. U.S., Art. I, sec. 8, clause 3. 8 Hallam's Constitutional His- *Blackstone's Commentaries, Bk, tory, ch, 6. 1, pp. 264–66. 42 Howell's State Trials, 407. *e g 520 CONSTITUTIONAL LA W. [$ 251. foreign countries, and the inimical regulations of commerce by European countries, and especially by Great Britain, made a general public sentiment in favor of uniform regulations of commerce." § 251. We have already seen in the history of the adop- tion of the Constitution, ante, that the statesmen of the Con- federation era regarded two leading defects in the Articles of Confederation which ought to be remedied. One was in the dependence of the Union upon the States for its needed revenue, and the other in the inability of the States sepa- rately to countervail the hostile commercial regulations of foreign powers as to our trade and navigation by any uni- form system. These two defects are always kept separate. On February 3, 1781, Congress asked the States for power to levy a duty on imports to pay the public debt, but rejected a proposal made for power over commerce.” On the 18th of April, 1783, Congress again asked to be invested with the power to levy duties for revenue only.” Virginia in Decem- ber, 1783, looking to the British Orders in Council, which restricted all our trade to British bottoms, proposed to give Congress power to counteract this system by retaliatory reg- ulations. On the 20th of April, 1784,” a very limited power to this end was proposed for fifteen years. In all this there was no suggestion of a power to lay duties, but only regula- tions as to vessels engaged in the carrying trade.” These movements show more favor to the grant of the commercial than of the taxing power, and that the two were never con- joined, but were always distinct. This distinction between the commerce power and the revenue power is asserted with great force in the resolutions of the Continental Congress, October 14, 1774." On the 28th of March, 1785, Maryland and Virginia, sister States upon the Potomac and Chesapeake, and friendly rivals ! Federalist, No. XI. 59 Journal of Congress, 132–33. * 7 Journal of Congress, 20, 21. 610 Journal of Congress, 89, 246; 38 Journal of Congress, 139. 11 id. 31, 168, 188, 190; Elliott's De- 4 Henning's Statutes, 1, 313; Id, bates, 144 et seq. 12, 50. 71 Journal of Congress, 28. & wº dº tº * * * * • ?: 4 * * * * * C 3 e " * * * ... • * * * * tº y g & § 252.] LEGISLATIVE DEPARTMENT, 521 for the trade which passed to and from the ocean through Capes Charles and Henry, met at Mount Vernon to agree upon a common system of regulations for their mutual inter- ests. The two States made a compact regulating the com- merce between them, and in the matters which united and divided them. It is instructive to see what were regarded by these two States as regulations of commerce. Provision was made for light-houses, buoys, etc., at points agreed upon by each, and stipulations made by each for respecting the “commercial regulations of the other, and for the navigation of their several waters by the vessels of the other.” It was this compact which suggested a convention to regulate American commerce and the commerce of all the States. For why should not, it was reasoned, all the States concur in common regulations for the foreign trade of each and all, as well as to the interstate trade. - Mr. Madison offered resolutions to appoint commissioners from Virginia to meet other commissioners at the celebrated “Annapolis Convention.” The resolution looked only to navigation and duties on vessels. § 252. In the Federal Convention the clause in reference to commerce was,in Mr.Pinckney’s plan, the second clause of the sixth article, the first clause of which was the taxation pro- vision." In Mr. Patterson's and Mr. Randolph's plan the com- merce clause and the taxing clause were kept distinct.” In the final adoption the distinction between these two clauses was most marked by their separation, the power to borrow money being interposed between them. This separation was at the basis of the contention of the colonies with the Parliament. They denied the power of Parliament to tax, but admitted the power to regulate commerce. The commerce clause was adopted nem. con.” In the Pinckney plan the power to regu- late commerce was granted with this modification: “All laws regulating commerce shall require the assent of two- thirds of the members present in each House.” If this 1 Madison Papers, 740. *Id. 1343, 2 Id. 730, 863–66. 4 Id. 747. 522 CONSTITUTIONAL LAW. [$253. provision had remained, it is obvious that a regulation of commerce could not have included the imposition of a duty, for that required only a majority to pass it; for thus, under cover of the revenue power, all commerce might have been regulated by a majority vote, and two-thirds were required. It could not have been supposed that Congress would have repeated the fraud of the king before the English Revolu- tion, or the grievous wrong of the Parliament before our own, in usurping a power of taxation under the pretext of regulating commerce. It is true that the two-thirds requisi- tion was stricken out as a part of the compromise, to which reference has been made ante, on the 29th of August, near the close of the convention;' but that cannot affect the point already made, that the framers of the Constitution held the commerce power and the tax power entirely dis- tinct and separate, and that the commerce power did not in- clude the tax power. § 253. What then does the power to regulate commerce mean? Fºrst. It does not mean the power to levy duties upon foreign imports, for the reasons already given; and these rea- sons are sustained by this additional observation: Suppose the Constitution had granted the power to regulate com- merce, and had not granted the power to tax, could Congress have taxed under the power to regulate commerce? Or, e contra, if the power to tax had been granted, but that to regulate commerce had been denied, could Congress, under the power to tax, have regulated commerce? But the Con- stitution explains itself. It declares, “no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another,” showing the dis- tinction made between the regulation of commerce and the regulation of revenue. This view is sustained by the highest judicial authority. Gibbons v. Ogden" decided that the power to regulate com- 1 Id. 1456, 39 Wheat. 1, 201. * Const. U.S., Art. I,sec. 9, clause 6. § 254.] LEGISLATIVE DEPARTMENT. 523 merce was wholly distinct from, and not inclusive of, the power to lay duties or taxes. And in the Passenger Cases" Chief Justice Taney and Mr. Justice Miller stated the same principle; and Justice Miller, in a much later case, takes the same view.” Reference may be made, in addition, to the practice of the Congress of the Confederation under Article IX, which gave power to Congress to regulate trade, and to manage all af- fairs with the Indians, not inhabitants of any of the States. In the execution of this power Congress passed an ordinance which prohibited all trade with Indians except by citizens of the United States, and by them only under a license. Thus the prohibition and restriction of this trade were re- garded as regulations as to trade; but no tax or duty was imposed except a license fee from the trader, and a bond was required for a fair observance of the regulations of Congress. Congress thus interpreted the power to regulate commerce with the Indians as a power to prohibit or license it, and to prohibit and restrict the travel of persons into the Indian Territory, but with no claim of power to lay a duty upon such trade or person.” - § 254. Second. (a) What does commerce mean? It is de- rived from com and merces, traffic in things. In the great case of Gibbons v. Ogden,” this precise meaning is given to the words. (b) It means the incidents and media of traffic and ex- change; that is, transportation, navigation, ships, etc., by land and sea. (c) Does it include intercourse of persons in travel? Yes. The Word “intercourse ’’ had been added as included within the regulations of commerce. This transitus of persons may be either of such as are connected with commerce and things, or of persons traveling with no relation to commerce and things. As to the first, there could be no reason for not 17 How, 502. *11 Journal of Congress, 126; 12 * Head-Money Cases, 112 U. S. 595, id. 66. 49 Wheat, 1. 524 CONSTITUTIONAL LAW. [$ 254. including them within the term “commerce.” For how can regulations of the commerce in things and in the vehicles for the transportation of things be separated from the per- son in charge of and connected with the things and subjects of commerce? Whether these apply to persons traveling with no relation to commerce and things coming into or • * going out of the country, or passing from State to State, was much debated in the Passenger Cases." Interpreting these words from the environment of those who adopted them, and looking to the exercise of power by Congress under the Confederation to regulate trade with the Indians, we have seen that Congress prohibited persons from going into the Indian Territory as late as 1786 and July, 1787, when the Federal Convention of that year was in session. When this power was extended to trade with foreign na- tions and between the States, it is natural to presume that it was intended to regulate the intercourse of persons not related to commerce and things. But this is made more clear by reference to the proceedings of the convention themselves. On the 6th of August, 1787, a draft of a Constitution was reported to the convention by Mr. Rutledge from the Com- mittee of Detail.” In article VII, section 4, of that draft, it was provided that “no tax or duty shall be laid by the Leg- islature on articles exported from any State; nor on the mi- gration or importation of such persons as the several States shall think proper to admit; nor shall such migration or im- portation be prohibited.” This clause limits the tax power as to such migration or importation of persons, and then de- nies power to prohibit such migration or importation. The tax or duty laid was aimed at the slave trade, which was per- mitted to continue until 1808; but the latter words have no reference to the tax power at all. To what, then, could these words refer, except as a limitation on the commerce power, under which alone Congress could have had a pretense for 17 EIOW, 283. 3 Id, 1233–34. 2 Madison Papers, 1226. s 254.] LEGISLATIVE DEPARTMENT. 525 the prohibition of the migration or importation of persons. The clause was referred with others to a committee. On the 24th of August, 1787, the clause was reported thus: “The migration or importation of such persons as the sev- eral States, now existing, shall think proper to admit shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or im- portation at a rate not exceeding the average of the duties laid on imports.” Gouverneur Morris remarked on this as a power to tax free men migrated or imported. George Mason replied: “The provision as it stands was necessary for the case of convicts, in order to prevent the introduction of them.” The latter clause was then amended, mem. Con., so as to read: “But a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” A tax or duty was imposed on the person imported as a slave, but the migration of free persons might be prohibited after 1800. These proceedings show that the power to tax slaves and not free men was granted, and the power to prohibit the migration of free persons as well as slave importation was granted by clear implication; the implication of power to prohibit the migration of free persons being under the power to regulate commerce, and to prohibit commerce in slaves after the date stated. This makes the commercial power reach to the prohibition of the migration of persons and the importation of things. These views are confirmed by many cases.” So that it seems to be the clear meaning of the Constitution that the words “to regulate commerce” include the regulation of migration of persons irrespective of their relations to things in commerce. (d) By later cases the power has been extended to embrace contracts as to things in commerce, as correspondence by 1 Id. 1415. Mobile v. Kimball, 102 id. 691, 702; 2 Id. 1429–30, Nishimura Ekiu v. United States, 8People v. Compagnie Générale 142 id. 651; Giozza v. Tiernan, 148 Transatlantique, 107 U. S. 59–62; id. 657. Head-Money Cases, 112 id. 580, 591; 526 CONSTITUTIONAL LAW. [$ 254. telegraph, etc. These telegraphs were long since invented, but as they were new means of commerce of persons and things, the power embraces commerce through those means as it had done through the old and superseded means. The power is not changed by the increase of its domain by rea- son of the advance of scientific investigation." In regulating commerce, therefore, Congress regulates traffic in things, vehicles of transport and things in transitu, but not the things themselves. Before and after the transitus they are beyond this power of regulation. The production and use of things in the terminus a quo and the terminus ad quem. are not subjects of the commercial power, but of the law of the State or country from which and to which they are transported.” (e) “Regulate”—what is its meaning? Does it mean to create commerce? No; it presupposes the existence of com- merce to be regulated. Does the power to regulate include the power to prohibit by embargo? This power to prohibit is inferable from the clause already quoted.” The commerce power is by that clause extended to prohibition, and only limited as to the particular subjects mentioned in that arti- cle after a certain year. The question arose in 1807 and 1812 under the Embargo Act. It was resorted to as a means of protecting our ships from English and French cruisers, by keeping them within our ports when unable to protect them on the high seas. It embraced vessel, cargo, exports, etc., which were not taxable under the Constitution, which forbade taxes or duties on exports," but an embargo was laid on them as a means to their protection. The environment of the convention made it understood by the use of those words, similar to the British prohibitory rules prior to the Revolution, and the prohibition on Indian trade under the 1 Mobile v. Kimball, 102 U. S. 690; In re Nagle, 135 U. S. 1; Royall v. W. U. Tel. Co. v. Alabama, 132 id, Virginia, 116 id. 572; Nashville v. 472. Alabama, 128 id. 100. 2 Brown v. Maryland, 12 Wheat. 3Const. U. S., Art, I, sec. 9, clause 1. 419; Waring v. Mayor, 8 Wall, 110; * Id., clause 6. § 255.] LEGISLATIVE DEPARTMENT, 52'ſ Confederation in the power to regulate trade, and the rea- soning given in the public State papers for the embargo lead to the same conclusion." These embargoes were laid on ships, and also on exports in time of peace, although there was no power to lay a tax or duty on exports. That again distinguishes between taxation and the commercial power. § 255. Third. The power to regulate commerce involves the power to pass navigation laws as to coastwise and for- eign vessels, prescribing the vessels as vehicles for things in commerce in which they may be carried. Thus from an early date the government under the Constitution has dis- criminated as to domestic interstate commerce between for- eign and home bottoms, and has given a monopoly to the latter in interstate commerce, and an advantage in foreign commerce to home bottoms over foreign bottoms. It is obvious from the history of the adoption of this clause that this power was intended to be included within the words “to regulate commerce.” The words “commerce’ and “navigation” were used interchangeably in the various prop- Ositions made in the convention in reference to the form this clause should assume.” Laws referring to registration of vessels, regulations for the carrying of passengers, rules as to inspection of vessels to insure safety, etc., are within this power; also a duty on the head of an immigrant to provide a fund for the support of paupers among them; so of interstate telegraph messages. (See Head-Money Cases, overruling the Passenger Cases.”) This will suffice as to regulations of foreign commerce. 1 Report of Mr. Jefferson in 1793, Am. St. Papers, 432; Resolution of Mr. Madison in the House of Rep- resentatives, 1793; Message of Pres- ident Jefferson, 6 Am. St. Papers, 57; Letter of Secretary Madison, 7 Am. St. Papers, 25; Report to Con- gress, Id, 75, and the Proclamation of President Madison, Id. 213. 2 Ch. VI. 3 Head-Money Cases, 112 U. S. 580; State Freight Tax Case, 15 Wall. 232; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 id. 460; Ratterman v. W. U. Tel. Co., 127 id. 411; Bank of North America v. Cooper, 137 id. 472. 528 */ CONSTITUTIONAL LAW. [$ 255. But does the power so extensive in its reach as to foreign commerce have the same interpretation as to interstate com- merce? A negative answer must be given to this question. The considerations which justify this conclusion are too im- portant to be omitted. * (a) Under the Articles of Confederation the States could interdict trade inter se. The grant of power to Congress to regulate interstate commerce was with the purpose not to transfer this power of interdicting interstate trade to Con- gress, but to leave interstate commerce free, as the Constitu- tion intended, in order to form a more perfect union. Could the Constitution have intended to destroy the freedom of interstate trade by Congressional power, when it took it from the States and vested it in Congress in order to prevent such destruction ? In the case of Railroad Co. v. Richmond,' Mr. Justice Field, speaking of this purpose in language which authorized the preceding statement, distinctly says: “The power to regulate commerce among the several States was vested in Congress in order to secure equality and freedom in commercial intercourse against discriminating State leg- islation; it was never intended that the power should be so exercised as to interfere with private contracts not de- signed at the time they were made to create impediments to such intercourse.” Again, he says: It was “designed to remove trammels upon transportation between different States which had previously existed, and to prevent the cre- ation of such trammels in future.” And in speaking of the acts of Congress called in question, he says: “They were intended to reach trammels interposed by State enactment or by existing laws of Congress.” * (b) If it is objected that the phraseto “regulate commerce’” may mean the same power in reference to interstate trade as it does as to foreign trade, the answer is very easy. These regulations of commerce of either kind may be made by law, if the law be necessary and proper to carry the power into execution.” A law that is necessary and proper to protect 119 Wall, 584, 2 Const. U. S., Art, I, Sec. 8. § 255.] LEGISLATIVE DEPARTMENT, 529 our vessels and the property engaged in foreign commerce against foreign enemies would not be necessary or proper as to interstate trade in a union between friendly States united under the Constitution. The word “proper” means, says Judge Story, in the clause cited by Chief Justice Chase,” “bona fide appropriate.” He says it is at Once admon- itory and directory. Can it be “bona fide and appropriate,” in the exercise of a power which is delegated to make a “more perfect union ” between the States, to pass a law which would disunite the States by antagonistic commercial relations between them P Can it be appropriate to the end of “domestic tranquillity” to sow the seed of controversy and rivalry between them in their trade inter se? When we look at all powers wested in Congress as trust powers to be used for the States as beneficiaries and as mem- bers of one family of commonwealths, so to be used as to promote union and not disunion; to establish harmony and peace and not discord and hostility between the States, it must be inevitably predicted that the courts will never hold any law of Congress, which prohibits, restricts or ties inter- state commerce, to be either necessary or proper as a regula- tion of commerce, but they must hold it to be a perversion of its trust power to the subversion of the fundamental prin- ciples of the Constitution. The power to regulate foreign and interstate commerce was given in the same terms diverso Žntuitu. In the first, to protect all against the machinations of foreign enemies; in the second, to protect and promote the free and unobstructed movement of men and things between the States in the family of the Union. (c) Congress is forbidden to tax or lay duties on articles exported from any State.” It is true that the Supreme Court has confined the word “export” in this clause to exports to a foreign country.” But it is hardly a matter of doubt that this proposition is intended to apply to interstate transitus 1 Knox v. Lee, 12 Wall. 573. How. 299; Pace v. Burgess, 92 U.S. 2Const. U.S., Art. I, Sec. 9, clause 5. 372; Turpin v. Burgess, 117 id. 504. 3 Cooley v. Board of Wardens, 12 34 530 CONSTITUTIONAL LAW. [$ 255. as well as to foreign exportation. For the article, if dutiable or taxable as a subject of interstate commerce, might thus, in the absence of evidence as to its ultimate destination to a foreign country, escape the protection intended to be given the State product by this clause of the Constitution. Besides, unless such prohibition is made universal, it would come into conflict with that clause of the Constitution which prohibits Congress, by any regulation of commerce or revenue, to give preference to the ports of one State over those of another; and if made universal would, in the language of Judge Mar- shall’s canon of interpretation, be not “within the scope of the Constitution; ” and if not prohibited in terms would not “consist with the letter and spirit of the Constitution.” Such a power was never intended to be granted, because it would be utterly at war with all the purposes for which the Con- stitution was adopted. (d) But there is another general clause of the Constitution which is clearly a denial of any such power by Congress. It declares that “Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” In considering the meaning of this clause we must anticipate what would, in some respects, be more appropriately discussed hereafter. It will be perceived that this is a declaration of the personal right of every citizen, and belongs to him as such. No Federal or State law gives it to him; he holds it by the higher title of the Constitution itself. If, therefore, any reg- ulations of commerce should invade the right conferred by this article, it would be, under Judge Marshall's canon, pro- hibited to Congress by the Constitution. It is a personal right which neither. Congress nor a State can impair. It gives to a citizen in any State a passport to every other, and confers upon him the privileges and immunities which at- tach to the citizen of that other. The broad scope of this clause can be obtained from the history of its adoption. Under the Articles of Confederation, which brought the States and the people of the States into close and intimate 1 Art. IV, sec. 2. § 255.] LEGISLATIVE DEPARTMENT. 531 relations, which were intended to be more close and more in- timate under the more perfect union formed by the Constitu- tion, it was incorporated in the following words: “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, thefree inhabitants of each of these States, paupers, Vagabonds and fugitives from justice excepted, shall be entitled to all priv- ileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an in- habitant; provided also, that no imposition, duties or restric- tion shall be laid by any State on the property of the United States, or either of them. “If any person guilty of, or charged with treason, felony or other high misdemeanor in any State, shall flee from jus- tice, and be found in any of the United States, he shall upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.” “Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State.” Mr. Madison, in the Federalist,” refers to this fourth arti- cle of Confederation, and indicates very clearly that the words “privileges and immunities” written in this clause of the Constitution were deemed sufficient to include all the specific privileges of trade, etc., which were embodied in the fourth article of Confederation. This article of the Consti- tution was proposed in Mr. Pinckney’s first plan in the words of the present clause of the Constitution;' and was reported ! Articles of Confederation, Art. 2 No. XLII. IV. * Madison Papers, 745. 532 CONSTITUTIONAL LAW. [$ 256. in the same form from the Committee of Detail, and by the Committee of Style,” and was finally incorporated into the Constitution without change. That this clause of the Con- stitution was intended to be a condensed statement of all the particulars mentioned in the Articles of Confederation can- not be doubted. If so, the right of the people of each State to have freeingress and egress to and from every other State, and to enjoy therein all privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, with the power of removal of the property of a citizen in one State to any other State of which the owner might be an inhabitant, is undoubted. Mr. Justice Washington, in Comfield v. Coryell,” defines these words “privileges and immunities” in language which has been accepted with judicial approval ever since. He says they are intended to embrace rights fundamental in their nature, such as belong of right to the citizen of any free gov- ernment; to secure “protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety,” etc. This defi- nition was approved by Chief Justice Taney in the Passen- ger Cases,” by the court, speaking by Justice Field, in Paul v. Virginia,” and by the decision of the Supreme Court, through Mr. Justice Miller, in the Slaughter-House Cases,” cit- ing the case of Ward v. Maryland." § 256. Mr. Justice Miller, in the Slaughter-House Cases, supra, says distinctly that the purpose of the fourth article of the Confederation and of the clause of the Constitution is the same; “and that the privileges and immunities intended are the same in each.” In the Articles of Confederation “we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.” He further declares that these privi- 1 Id, 1240. 58 Wall. 180. 2 Id. 1558. 616 Wall. 36. 34 Wash. Cir. Ct. Rep. 371. 7 12 Wall, 410. 47 How, 413. § 256.] LEGISLATIVE DEPARTMENT. 533 leges and immunities were those within the province of the State itself where the privileges and immunities were claimed; that the “entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the con- stitutional and legislative power of the States, and without that of the Federal government.” It is therefore obvious that this right conferred by the Constitution upon the citi- zens of each State included free ingress and regress of persons and property and the like, and put them beyond the reach of the power of the States, and, a fortiori, beyond the power of the Federal government. The power, therefore, of Con- gress to tax or prohibit interstate commerce, including the intercourse of persons, did not exist in Congress or in the States. Congress may regulate such commerce so as to pro- mote it and secure its safety, but cannot forbid it or tax it. In a dissenting opinion in Stoutenburgh v. Hennick," Mr. Justice Miller relies upon this construction of the clause as to the rights of a citizen as being a limitation upon the power of the States to tax drummers. These considerations conclusively show that the power to regulate interstate commerce is not commensurate with the power of Congress to regulate foreign commerce; and while it may prohibit the transitus of persons from foreign coun- tries into the United States as a whole, and prohibit commerce in things by embargo, yet no such power is vested in Congress as to interstate commerce. A confirmation of this conclusion might be derived from the requirement of uniformity of duties, imposts and excises;” and from the prohibition upon Congress of making any regulation of commerce which would give preference to the ports of one State over those of an- other. The whole Constitution, in all of its parts, looks to the security of free trade in persons and goods between the States of the Union, and by this clause prohibits either Con- gress or the States to interfere with this freedom of inter- Course and trade. 1129 U. S. 141. 2 Const, U.S., Art. I, sec, 8, clause 1. 534 - CONSTITUTIONAL LAW. [$ 257. § 257. A great question may now be considered. The clause as to foreign and interstate commerce reaches the objects which are subjects also of reserved State powers. When these interlock, or the powers of Congress and of the States are exercised over the same object, where is the line of demarcation.?' In the leading case of Gibbons v. Ogden," Chief Justice Marshall addresses himself to this question, and in construing the words “commerce among the several States,” he says: “It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or be- tween different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.” Hence it fol- lows that interstate commerce in things and persons relate to the transitus of such things and persons where the ter- mini are in different States. Where they are in the same State the power of Congress to regulate them does not at- tach. It may be remarked that the power of Congress is not to regulate persons and things, but merely commerce in them. Quoad commerce, traffic, intercourse, etc., Congress has clear power as to things and persons; when not in tran- situ the States have a clear reserved power. Before things or persons become articles of commerce, interstate or for- eign, State power is supreme. But while they are articles of such commerce, Congress has power to exclude State action.” States, by their reserved power, legislate as to things and persons; Congress only regulates interstate and foreign com- merce in things or persons. The boundary line between these two is in theory clear; in practice, sometimes con- fused. The courts have to find the location of this line in cases which arise, and must keep up the fence between them. 19 Wheat. 1, 199. Bowman v. Railroad Co., 125 id, 478; 2The Daniel Ball, 10 Wall, 557; Rhodes v. Iowa, 170 id. 412; Vance Hall v. De Cuir, 105 U. S. 485; Tele- v. Vandercook Co., id. 438; Schollen- graph Co. v. Texas, 105 id. 460. berger v. Pennsylvania, 171 id. 1; 8 Mugler v. Kansas, 123 U. S. 623; Collins v. New Hampshire, id. 30. § 258.] LEGISLATIVE DEPARTMENT. 535 Chief Justice Marshall, in Gibbons v. Ogden, supra, referring to inspection laws, used this expression: “They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legis- lation which embraces everything within the territory of a State not surrendered to a general government, all which can be most advantageously exercised by the States them- selves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of the State and those which respect turnpike roads, ferries, etc., are component parts of this mass.” BHe further says: “In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only cer- tain enumerated powers; and of numerous State govern- ments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective gov- ernments to execute their acknowledged powers would often be of the same description, and might sometimes interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers of the other.” He then goes on to say that when the States pass quaran- time laws, the constitutionality of which has never been de- nied, they do not exercise the power to regulate commerce. Congress may seem to trench upon the quarantine power of the States; hence the early laws of Congress which he re- fers to and justifies. Congress has directed its officers to aid in the execution of these quarantine laws, and has sometimes made provision for it in aid of those of the States. § 258. These illustrations will serve the general purpose of indicating the mode in which Congress and State powers operating on the same objects may sometimes seem to be in conflict. The cases which will illustrate this more particu- larly will be presently referred to. The prime distinction 1 Gibbons v. Ogden, 9 Wheat. 203. */ 536 CONSTITUTIONAL LAW. [$ 259. ! recognized in the leading case of Gibbons v. Ogden and the subsequent case of Brown v. Maryland' shows that Congress has no power over things or persons except as subjects of for- eign or interstate traffic or intercourse. When the thing or person is not in such commerce, Congress has no power over it. Therefore, until the thing or person has this commercial quality, the Congressional power does not attach, and the State power is complete. When it assumes the commercial Quality the Congressional power is exclusive. From this we may deduce two canons: f 1st. Commercial power, to be necessary and proper while regulating commerce in its normal condition, must so regu- late as not to destroy the essential reserved rights of the States. It is neither necessary nor proper for it so to do, but both unnecessary and improper. By analogy, the taxing power of Congress is so limited as not to allow a tax on the salary of a State judge.” 2d. As long as the person or thing is in commercial tran- situ the State cannot touch it, because it is under the regula- tions of Congress, and the State must so exercise its power in respect to these as not to interfere with the essential right of Congress to regulate commerce. But before transitus has once begun, or having begun has ceased, Congressional power does not attach and the State power is exclusive. § 259. These general principles may now be illustrated, and the distinctions better defined, by reference to the decis- ions of the courts upon cases which have arisen. The case of Gibbons v. Ogden,” arose out of the grant by the legislature of New York to Livingston & Fulton of the exclusive navigation of all the waters within the jurisdic- tion of that State, with boats propelled by fire or steam, for a term of years, and authorized the chancellor to restrain by injunction any person from navigating those waters with such boats. Livingston & Fulton assigned their right to Ogden to navigate the waters between places in New Jer- 1 12 Wheat. 419. 39 Wheat. 1, 2 Collector v. Day, 11 Wall. 113. § 259.] LEGISLATIVE DEPARTMENT. 537 sey and the city of New York. Gibbons had two steamers employed in running between New York and Elizabethtown in New Jersey, in violation of the exclusive privilege owned through assignment by Ogden. Ogden's bill prayed an in- junction to restrain Gibbons from using the said boats in navigating the waters in New York. Gibbons answered that the said boats were duly enrolled and licensed under the laws of the United States, and claiming, in virtue of such licenses, the right to navigate the waters between New Jersey and the city of New York. The chancellor perpet- uated the injunction. His decree was affirmed in the Court of Errors of New York, and was carried to the Supreme Court of the United States by writ of error. The point at issue in this case was whether the State of New York had the right to grant the exclusive privilege of navigation with steamboats to Livingston & Fulton over the waters which lay between a point in New York and a point in New Jer- sey. The court held that as to commerce on such waters between two points in the same State the grant was in the reserved power of the State; but where it controlled navi- gation between a place in New Jersey and a place in New York, it was interstate commerce, and not subject to be con- trolled by the State, but under the exclusive jurisdiction of the Federal government. The court held that the Congres- sional power to regulate commerce was exclusive of any concurrent power in the State when Congress exercised its power, however it might be as to State regulations in the absence of actual exercise of power by Congress. It was held that the inspection laws, though related to the com- mercial power, were disconnected with it, and when exer- cised by the States did not conflict with the Congressional power; that the quarantine laws of the States were not in conflict with the Congressional power; and that where the State was in the exercise of these reserved powers, it must so exercise them as not to conflict with the proper regula- tions of commerce by Congress. In the case for judgment the contention was between the right of the State to regu- 538 CONSTITUTIONAL LAW. [$ 259. late commerce and navigation between New York and a point in New Jersey and the power of Congress exercised in licensing Gibbons in the use of his steamers between the same points. This was a clear contest between Congress and a State in a matter of the regulation of commerce. Therefore, even conceding that the State might so regulate commerce if Congress did not undertake to do so, yet, when Congress did do so, the question was, whose regulation was supreme P. Upon such an issue the decision was inevitable that, as a law of Congress made in pursuance of the Consti- tution was the supreme law of the land, this law of Congress must be paramount to the law of the State." Of course the case is very different where the commercial regulation by Congress comes into conflict with the jurisdiction of the State as to the health and life of its people, etc. A vessel proposes to enter a harbor of a State under Congressional commercial regulations; and the State, to protect its people from dis- ease, quarantines it. These two powers seem to conflict, but they do not, except as both operate upon the movement of the vessel, though from different sources of power. The vessel is subject to two powers which are entirely different, but not in conflict. It does not check a rightful object of commerce. It merely erects a bar against disease. Con- gress regulates the rightful object of commerce, under color of which it cannot authorize wrongful commerce. It cannot introduce disease, but may a rightful subject of commerce. The two powers are made to consist by restraining the State, under color of quarantine, from regulating rightful com- merce, and restraining Congress, under color of commerce, from regulating the unlawful importation of disease. Chief Justice Marshall says in this case: “It is no objec- tion to the existence of distinct, substantive powers that in their application they bear upon the same subject. The same bale of goods . . . that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no 1 Const. U. S., Art. VI, clause 2. § 260.] LEGISLATIVE DEPARTMENT. 539 r more intended as regulations on commerce than the laws which permit their importation are intended to inoculate the community with disease. Their different purposes mark the distinction between the powers brought into action, and while frankly exercised they can produce no serious collision.” § 260. The delicate boundary line between the Congres- sional and State power may be drawn by the judiciary upon the principle that the State may not mala fide, under color of its reserved power, impinge on the commercial power of Congress; and Congress may not, under color of its granted power, impinge on the reserved power of the State. Bona. fides is required on both sides. This bona fides is equivalent to the word “frankly” in the quotation above from the Chief Justice." Each must use its distinct power in such a way as not to trench on the power of the other. Where the judici- ary find that a State uses its reserved power as a pretext to regulate commerce, or that Congress under the commerce power invades the reserved clause jurisdiction of the State, it shall so adjust it in both cases as to maintain the Supreme law of the land over Congress and the States. Hence the early laws of Congress regulating commerce respected the quarantine laws of the State, and aided their maintenance, and did not obstruct them. And this because a law to reg- ulate commerce was neither necessary nor proper, but the contrary, when it introduced into the State disease and death, physical or moral, contrary to the State quarantine. Another illustrative case is that of Brown v. State of Maryland,” which was this: Maryland required an importer to pay a license tax to her before he should be permitted to sell a package of imported goods. The importer was in- dicted by the Maryland court for having imported and sold a package of foreign goods without taking out a license under the Maryland law. The importer demurred, and there 1 See in accord, Peete v. Morgan, Knight Co., 156 id. 1; St. Anthony 19 Wall. 581; Steamship Co. v. Falls Water Power Co. v. St. Paul Louisiana Board of Health, 118 Water Commissioners, 168 id. 349. U. S. 455; United States v. E. C. 212 Wheat. 419. 540 CONSTITUTIONAL LAW. [$260. was judgment against him on the demurrer for the penalty prescribed by the act. It was contended that the act of the State violated two provisions of the Federal Constitution: the one forbidding the State, without the consent of Con- gress, from laying any imposts or duties on imports or ex- ports, and the other the clause which gives to Congress the power to regulate commerce with foreign nations. The Chief Justice held that the judgment under the law of Mary- land conflicted with that provision of the Constitution just Quoted. He held that a tax on the sale of an article im- ported only for sale was a tax on the article itself; and that, therefore, this tax was a duty laid by the State on an import. He said that it was in conflict with the power to regulate commerce, because when Congress allowed the importation, that would avail nothing if it did not authorize the sale of the thing imported. This was as essential an element as the importation itself, and must be considered a component part of the power to regulate commerce. The Chief Justice, determining when the power of the State over the article which is the subject of importation begins, so as to be subject to taxation and the like, says: “When the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import, and has become subject to the tax- ing power of the State; but while remaining the property of the importer in his warehouse, in the original form or package in which it was imported, a tax upon it is too plain a duty on imports to escape the prohibition in the Constitu- tion.” And again: “If he sells them, or otherwise mixes them with the general property of the State by breaking up his packages and traveling with them as an itinerant peddler,” they become liable to taxation. When it does this, “the tax finds the article already incorporated with the mass of prop- erty by the act of the importer. He has used the privilege he had purchased, and has himself mixed them up with the 1 Const, U. S., Art. I, sec. 10, clause 2. § 261.] LEGISLATIVE DEPARTMENT. 541 common mass, and the law may treat them as it finds them.” And he goes on to say that in the case of gunpowder, or of infectious or unsound articles, the State has a right to re- quire them to be removed, under its reserved power to pre- serve the health and safety of its people. The Chief Justice also holds that inspection laws by the States are not touched by this decision." § 261. The article when inspected is not yet an export. The State has a right to inspect its own product, even when it may be intended for export; and that this is a reserved power of the State further appears from the language of the Constitution itself.” In the License Cases” and the Passenger Cases,” these ques- tions were much discussed, but with very contrary opinions, which have been adjusted by later decisions. The question of the demarcation between the power of the State and the commercial power of Congress has arisen in many cases in respect to the migration of persons. We have seen that the migration of persons is under the commerce power. What can the State do in reference to persons migrating who are physically or morally diseased ? In New York v. Möln,” the State of New York inflicted a punishment upon the master of a vessel arriving from a foreign port who neglected to report an account of his passengers. The court (Story, J., dissenting) held that the law was not a regulation of Com- merce, but of police, and was not in conflict with the Con- stitution. In the cases of Henderson et al. v. Mayor of Wew York and People v. Compagnie, etc.," the question arose whether a State had the reserved power, as a matter of police, to obstruct the migration of criminals, lewd women, paupers and diseased persons. The court decided against the constitutionality of the law, but because the law obstructed the migration of all 1 Gibbons v. Ogden, 9 Wheat. 1; 35 HOW, 504, Turner v. Maryland, 107 U. S. 38; 47 HOW, 283. Puryear v. Commonwealth, 5 Wall, 5 11 Pet, 153. 475; Waring v. Mayor, 8 id. 110. 692 U. S. 258, 275; 157 id, 59. * Art, I, Sec. 10, clause 2. 542 CONSTITUTIONAL LA W. [$ 261. { persons and not the objectionable ones only; the doctrine being held that the State could obstruct such as are above mentioned, but could not obstruct all merely because some might be in the objectionable list. This is due, despite the commercial power of Congress, to State power to protect it- self against such persons coming into its borders, and does not obstruct legal commerce or the migration of unobjection- able persons, but only of those who would be injurious to society. And it is held that a State may make port regula- tions to prevent collision of vessels, and for the safety of passengers and freight thereon, and to facilitate the delivery thereof, but cannot tax the receiving and landing of such." A like question has arisen as to diseased cattle passing from State to State. In Railroad Co. v. Husen,” the court decided a law of Missouri unconstitutional which prohibited the driv- ing of all Texas cattle through the State; but in emphatic language declared that a State may enact health laws to protect life, liberty, health or property within its borders, and to prevent the entrance of persons or animals who are diseased.” But these laws must be absolutely necessary for the purpose. In Kºmmish v. Ball” the court approved the language in 95 U. S. 472, Supra, and declared that State laws aimed to prevent diseased cattle from coming into a State are valid, but that they must be bona fide for safety and pro- tection. And in a late case in 141 U. S. 60,” it was held that this police power for safety is not in conflict with the interstate commerce power, but where bona fide for safety is substan- tially under the reserved power of the States." The same doctrine is maintained in Brömmer v. Zeebman,’ it being held that a meat law of Virginia was unconstitutional because, in assuming to protect itself against diseased meat from an- other State brought into its borders, it excluded all meat 1 Gloucester Ferry Co. v. Penn- 4129 U. S. 217. sylvania, 114 U. S. 196. 5 Crutcher v. Kentucky. 295 U. S. 465; Missouri, K. & T. R. 6 Plumley v. Massachusetts, 155 R. Co. v. Haber, 169 U. S. 613. TU. S. 461. 395 U. S. 472, 7 138 U. S. 78. § 261.] I.EGISLATIVE DEPARTMENT, 543 from other States. And in a similar case, as to flour (141 U. S. 62'), it was held that while a State might exclude bad flour, yet it could not, by indiscriminate exclusion, keep out the good. The first was internal polity; the second was a regulation of commerce. To the same effect was a recent de- cision of the Supreme Court upholding a law of the State of Georgia forbidding the running of freight trains on Sunday.” The same question has arisen as to State laws taxing ped- dlers, in Wilton v. Missouri.” In that case a tax on a peddler for goods from other States was held unconstitutional be- cause aimed at goods brought from another State, which was really a tax on interstate commerce in those goods, and a violation of the rights of citizenship under the clause already commented on.” But in the late case of Emmert v. Missouri,” the Supreme Court, upon a very careful and elaborate re- port of the cases, held a statute of Missouri requiring peddlers of goods to take out and pay for a license, and making no discrimination between the Missouri products and those of other States, was not, as to goods previously sent to them by manufacturers in other States, repugnant to the power of Congress to regulate commerce among the States. This case is important because it shows that a tax on goods after they have been imported from another into the State where they are taxed is not unconstitutional, because the taxation is upon the goods after they have ceased to be subjects of com- merce. They have doffed the character of subjects of inter- state commerce and have donned the character of property within a State. This is in accordance with the case of JBrown v. Maryland, supra. This case approves Machine Co. v. Gage," and the decisions in Brown v. Houston, Rob- bins v. Shelby Tawing District,” and Brennon’s Case.” The same doctrine is maintained in reference to drum- 1 Crutcher v. Kentucky. 5 156 U. S. 296. 2 Hennington v. Georgia, 163 U.S. $ 100 U. S. 676. 299; Norfolk & Western R. R. Co. v. 7 114 U. S. 622. Commonwealth, 93 Va. 749. 8 120 U. S. 489. 391 U. S. 275, 9 153 U. S. 189. 4 Const. U. S., Art. IV, sec. 2. 544 CONSTITUTIONAL LAW. [$ 262. mers. The drummer in One State is not taxed in another; *. and this was also held in a late case where a tax was laid on a domestic drummer.” It is held in a strong dissenting opin- ion by Chief Justice Waite in these cases, two judges con- curring with him, that if the tax on the drummer is the same as on the foreign drummer, the reserved right of the State to tax business within its borders made this a legitimate exercise of the tax power without the purpose to interfere with interstate commerce as to the goods represented by the drummer of the other State. The agent of an interstate line of railway is not taxable as such by a State. The tax is held to interfere with the freedom of interstate traffic and intercourse.” Nor can the privilege of keeping an office be taxed or interfered with.” Nor can a State tax telegraphic messages interstate, and a tax on the receipts from such messages is unconstitutional.” But a tax on all the receipts without discrimination is held to be lawful; and so as to a tax upon freight where there was no discrimination as to the receipts from freight, but a tax was laid upon all receipts without discrimination." In all these cases it will be seen that Congress regulates in the in- terest of a free commerce against State discrimination. But where the taxis specifically upon interstate receipts it is not constitutional." § 262. These doctrines have lately been affirmed in the case of Postal Telegraph Co. v. Adams, and Railroad Co. v. Pennsylvania.” So a State law requiring the posting of 1 Robbins v. Shelby County Tax- ing District, 120 U. S. 489. 2 Leloup v. Port of Mobile, 127 |U. S. 640; Asher v. Texas, 128 id. 129; Stoutenburgh v. Hennick, 129 id. 141. 3 McCall v. California, 136 U.S. 104. *Lyng v. Michigan, 135 U. S. 161. *W. U. Tel. Co. v. Alabama, etc., 132 U. S. 472. °Case of State Freight Tax, 15 Wall. 232; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; Tel. Co. v. Texas, 105 id. 460; W. U. Tel, Co. v. Massachusetts, 125 id. 530; Ratter- man v. W. U. Tel. Co., 127 id. 411. See also N. Y., L. Erie & W. R. R. v. Pennsylvania, 158 id. 431; Pacific Exp. Co. v. Siebert, 142 id. 339; Pos- tal Tel. Cable Co. v. Charleston, 153 id, 692. 7 Case of State Freight Tax, 15 Wall. 232, 284; Telegraph Co. v. Texas, 105 U. S. 460; Maine v. Grand Trunk R. R. Co., 142 id. 217. 8.155 U. S. 688; 138 id. 431. § 262.] LEGISLATIVE DEPARTMENT. 545 the rates, etc., of a railroad engaged in interstate commerce is held a constitutional exercise of police power." This ac- cords with the case of Wew York v. Miln, supra. A law forbidding the employment of a color-blind locomotive en- gineer on a railroad engaged in interstate commerce was also held unconstitutional.” So a State may tax a railroad for transporting between two points in the same State, though the transitus may be through part of another State; it is one transitus between termini in one State.” A State may tax an interstate railroad on its receipts in proportion to the length of its road in that State. Such tax is not on inter- state commerce, but upon the receipts of its own railroad within its own limits, ascertained in the proper way. The State may tax the property of a railroad created by Congress, but cannot tax its operations.” So a State may regulate any local business by a foreign corporation, but not any commercial business by it with other States. It may regulate the speed of trains running into cities; and may for- bid gunpowder being carried except in a way consistent with safety.” A State may tax a ship engaged in foreign or inter- state commerce as property, but not on its tonnage. The first is police power; the last commercial.” A State may tax and license ferry-boats enrolled in the United States; but may not tax their tonnage." A State tax on an interstate bill of lading is void.” So a town, a State municipality, may build wharves, regulate wharf rates, and forbid landing except at wharves. These are police regulations, not commercial. These are for safety, 1 Railroad Co. v. Fuller, 17 Wall. 47; Brown v. Maryland, 12 Wheat. 560. 443; License Cases, 5 How. 576; 2 Nashville, etc. R. R. v. Alabama, Hooper v. California, 155 U. S. 648, 128 U. S. 96. 6 State Tonnage Cases, 12 Wall. & Lehigh Valley R. R. v. Pennsyl- 204. vania, 145 U. S. 192. 7 Ferry Co. v. St. Louis, 107 U. S. 4 Railroad Co. v. Peniston, 18 365. Wall. 5. 8 Woodruff v. Parham, 8 Wall. * Crutcher v. Kentucky, 141 U. S. 123. 35 546 CONSTITUTIONAL LAW. [$263. not for obstruction; but the regulation must not discriminate against vessels of other States." State laws which are bona fide aimed at the safety of com- merce, and are not obstructive of it, and are not opposed to the laws of Congress regulating commerce, are held to be con- stitutional. They are for the safety of commerce, and not for its regulation.” And State laws providing for buoys, etc., as facilities to commerce and not obstructive of it are consti- tutional.” It is held that a State may regulate the use of elevators, warehouses, etc., used for internal, and even for interstate, trade, and allow charges for the use thereof, not discriminating against other States. This is a police, not a commercial, regulation, unless Congress acts upon it, when it will be held that its law is paramount to that of the State. § 263. It will be proper now to consider the recent con- flict between State and Federal power in reference to the traffic in liquor. Some of the States have, for preserving the health of the people, limited the importation of liquor into the State, and the question has arisen how far such legisla- tion conflicts with the interstate commerce power of Con- gress. The case of Mugler v. Kansas 4 arose out of a law of Kansas prohibiting the manufacture of intoxicating liquor within the State to be sold for general use as a beverage; and declaring that any still kept and maintained for the manufacture of such liquor should be abated as a common nuisance, and that the offenders should be tried upon indict- ment. Nothing in the laws of Kansas, as far as the record shows, forbade the manufacture of such liquor to be exported to other States. It was held not only that such legislation did not violate any other of the provisions of the Constitu- tion or its amendments, the fourteenth included, but there 1 Packet v. Keokuk, 95 U. S. 80; 12 How. 299; Wilson v. McNamee, Packet Co. v. St. Louis, 100 id. 428; 102 U. S. 572. Packet Co. v. Catlettsburg, 105 id. 3 Ward v. Maryland, 12 Wall. 418; 559; Pittsburg Coal Co. v. Louisiana, Guy v. Baltimore, 100 id. 434; Mo- 156 id. 590. bile v. Kimball, 102 id. 691; Pitts- *Steamship Co. v. Joliffe, 2 Wall, burg, etc. Co. v. Louisiana, 156id,590. 459; Cooley v. Board of Wardens, 4123 U. S. 623. § 263.] LEGISLATIVE DEPARTMENT. 547 was nothing to show that it operated at all upon commerce in such articles with foreign nations or among the States. The law was sustained. It was held a lawful exercise of the police power in respect to the well-being of its people. The court referred to the language of the judges in the License Cases, and a number of others. In Bowman v. Railroad Co.,” the court discusses an act passed by Iowa forbidding common carriers to bring intoxi- cating liquors into the State from any other State or Territory, unless furnished with an official certificate from a State offi- cial permitting it to be done. Bowman offered for shipment to the defendant railway company five thousand barrels of beer, to be shipped from Chicago, Ill., to Marshalltown, in the State of Iowa. The defendant company filed a special plea excusing its refusal to accept the beer for shipment as above stated, be- cause the law of Iowa forbade it. To this plea a demurrer was entered by the plaintiff. The Supreme Court held that the plea was bad, because it forbade interstate commerce in the article; that the law of Iowa could not be deemed an in- spection law nor a quarantine law, because the quarantine power does not allow a State at its mere will to declare that an article manufactured in another State is not to be regarded as property by the legislative declaration of the State to which the article is consigned. If a quarantine power in- volved the right to determine what were proper objects, then it might really forbid all, and thus nullify the commercial power altogether. To this opinion of the court there was strong dissent of three judges, who held that the police power to protect a people from the use of such liquors could not be overborne by the commercial power of Congress. In the case of Kidd v. Pearson " the question assumed an- other form. Iowa passed a law allowing the manufacture of liquors within the State for mechanical, medicinal, culi- 1 5 How. 504; Bartemeyer v. Iowa, 122 id. 201; Gibbons v. Ogden, 12 18 Wall, 129; Beer Co. v. Massachu- Wheat. 1. setts, 97 U. S. 25; Foster v. Kansas, 2125 U. S. 465. § 128 U. S. 1. 548 CONSTITUTIONAL LAW. [$263. nary and sacramental purposes, but no other, not even for transportation beyond the limits of the State; and punished by fine and imprisonment every person violating the statute. The defendant in this case answered that all his manufact- ured liquors were for exportation, and were sold outside of the State of Iowa. The court decided that the liquor was manufactured by Kidd for none of the four specified pur- poses named in the act, but for exportation, and this did not amount to the creation of such property in the liquor as to make it a subject of commerce. Liquor so manufactured was by the law of the State condemned as no property at all. That law operated in the State of Kansas before the effort to export. The question then was, did the liquor ever become the subject of the commercial power? It was con- demned as no property before it started on its transitus. The commerce power, therefore, never operated upon it. The law of Kansas was upheld; it being held that the power of Congress could not invest the article with the quality of property so as to be subject to the commercial power when the State had declared it should have no such property. In Gio22a v. Tiernan, it was also held that the commer- cial power must not be so used as to destroy the essential reserved right of a State; and that when the transitus has not begun, or having begun has ceased, the Congressional power does not attach, and the State power is exclusive. It is only when the article is in commercial transitus that the State cannot touch it. When is liquor under the commercial power &n transitu ? When delivered at the terminus a quo. Does it cease to be under this power when delivered to the consignee at the terminus ad quem ż The answer is in the negative. Following Brown v. Maryland,” the Supreme Court, in Jeisy v. Hardin,” held that the article was not subject to State power upon its arrival at the terminus ad quem, if sold by the consignee in the original package, unbroken and un- 1 148 U. S. 657. Co. v. Bates, 156 id. 577, and Schol- 212 Wheat. 443. lenberger v. Pennsylvania, 171 id. 1. 3135 U.S. 100. See Pittsburg Coal § 263.] LEGISLATIVE DEPARTMENT. 549 opened; that the importation was not complete until the consignee had either broken the package or sold it. In this case there was still a strong dissent of three judges. This decision rests upon the cases already cited." Where the pack- age is broken by the importer or the unbroken package is sold by him, the transitus is complete and the property passes under State power; but it seems if the consignee chooses to transport the unbroken package to another State he may do so. Congress has recently passed a law to conform its reg- ulations of commerce to these State laws as to the impor- tation of liquor. This, as in the quarantine cases already referred to, divorces the commercial power and the State police power. Such a law is held constitutional as a proper defense of the reserved power of the State. The late case of Plumley v. Massachusetts” decides that the commerce power does not preclude a State from passing laws preventing the sale of articles brought into the State from another, if intended to prevent the people from being cheated in the purchase of such articles by their deceptive appear- ance, and is a strong assertion of the police power of the State, when properly exercised, against any conflicting pro- visions under the power to regulate commerce. The case of Coe v. Erroll” is very valuable for the illus- tration of these distinctions. In this case logs were cut and hauled from a place in New Hampshire to Erroll in the same State, for the purpose of transporting them by water from Erroll to a place in the State of Maine. The intent to transport did not withdraw them from State ju- risdiction, and it was held that New Hampshire could still tax them. When started from Erroll to Maine they are in transitu interstate, and no longer subject to State jurisdic- tion, but are under the commercial power until the transitus is ended; and though the transitus be from State A to State C, through State B, they are not taxable by B, for they are 1 Pervear v. Commonwealth, 5 2 153 U. S. 461. Wall, 479; Waring v. Mayor, 8 id. 3 116 U. S. 517. 110. 550 cowsTITUTIONAL LAW. [$264. subjects of interstate commerce. But if the logs or other property be taxed more than other like articles because to be transported, the tax is unconstitutional, for it is a tax in effect on the transport, and not on the property. Nor does the transitus begin while the property is being conveyed by dray or the like to the depot. The transitus does not begin until delivery is made at the depot of the interstate railroad." § 264. A question of great importance has been discussed, whether the Congressional power over commerce excludes the exercise of the power to regulate commerce by the States.” It is obvious that the existence of the power when not exer- cised does not in all cases preclude the exercise of it by the States.” Suppose Congress should refuse to provide light- houses, buoys, etc., or to remove obstructions in rivers or harbors, can a State do so? And by analogy as to postal matters, if Congress refused to establish a postal system, would the States be precluded ? The cases already cited in reference to these matters decide this question.* Take another class of cases. May not a State erect a bridge over a navigable river ? The answer is obvious. A bridge is a part of the internal polity of the State, and may be erected if it does not obstruct commerce. If it obstructs commerce, pro tanto it is forbidden, as in that event it would be a reg- ulation of commerce. But in itself it is not. Hence a bridge across the Ohio river is not necessarily a commercial regu- lation. As a convenience to its people it is a police regula- tion. If it be a law obstructing commerce it is a commercial regulation. The maxim applies to both governments, sic wtere two ut non alienum laedas. For a State by means of its bridge to obstruct commerce would be to trench on the power of Congress; for Congress to abate the bridge as a nuisance when it was not obstructive of commerce would be 1 The Daniel Ball, 10 Wall. 557; Cook v. Pennsylvania, 97 U. S. 566; Coe v. Erroll, supra. Guy v. Baltimore, 100 id. 434; Mo- 2 Federalist, No. XXII. bile v. Kimball, 102 id. 691; Pitts- 3Mobile v. Kimball, 102 U. S. 691. burg Coal, etc. Co. v. Louisiana, 156 4 Ward v. Maryland, 12 Wall, 418; id. 590. § 264.] LEGISLATIVE DEPARTMENT. 551 for Congress to invade the reserved power of the State. This question arose in the Wheeling Bridge Case." In that case the bridge was abated because it obstructed commerce; not because, in itself, it was a regulation of commerce. A bridge, therefore, is legal until Congress forbids. Hence, now, Con- gress grants the right to a State to build a bridge across a navigable river, and the bridge is built in the exercise of a police power inconsistent with the commercial power.” Another class of cases arises where the State law directly infringes on the freedom of interstate or foreign commerce, as in the case of Brown v. Maryland, supra, and others. The act of the State is political, as by taxation or other interfer- ence. The trade to be regulated by Congress is either left free or has some regulations imposed upon it. In the former case, Congress by non-action having left the commerce free, any limitation or restriction upon it by the State would vio- late the Constitution; and if Congress has made a regulation respecting it, then that regulation, if proper, is paramount to any that is made by the State. The distinction is there- fore obvious that a bridge or the like character of internal polity remains good unless in effect it obstructs commerce, but a tax or law forbidding commerce is per Se a regulation of commerce and is void because of conflict with the com- merce clause.” Other cases on the subject may be cited.” An illustration of this divisional line between State and Federal power is furnished in the case of patented articles; though patented by the United States, the State may forbid their sale for the safety of its citizens." But Congress can- not forbid the sale where the State does not, for it is for the State to determine under the police power whether it shall 113 How. 518; 18 id. 421. 2 Bridge Co. v. United States, 105 TJ. S. 470; Willamette Iron Bridge Co. v. Hatch, 125 id. 1. 3 Mobile v. Kimball, 102 U. S. 691. 4 Willson v. Blackbird Creek Marsh Co., 2 Pet. 250; Cooley v. Board of Wardens, 12 How. 319; Pennsylvania v. Wheeling & Bel- mont Bridge Co., 18id. 420; Gilman v. Philadelphia, 3 Wall. 713; Os- borne v. Mobile, 16 id. 479; Texas, cº etc. Ry. Co. v. Interstate, etc. Co., 155 U.S. 585; Monongahela Nav. Co. v. United States, 148 id. 312; Wis- consin v. Duluth, 96 id. 379. 5 Patterson v. Kentucky, 97 U. S. 501. 552 CONSTITUTIONAL LAW. [$265. or shall not be allowed." So a Congressional license tax can- not prevail against a State law forbidding it. Congress may tax a business, but cannot license it; it is for the State alone to determine this question.” § 265. Another class of cases may now be referred to — questions arising out of the migration of the Chinese to the Dnited States. The commerce power of Congress has been held applicable, in consistency with the view already stated, that this is a lawful regulation of commerce.” The singular case of Crandall v. Wevada arose upon a law of that State imposing a tax on railroad and stage com- panies for every passenger carried out of the State by them. This was held to be virtually a tax upon the passenger for the privilege of passing through the State. The court was divided upon the question whether this was an exercise of the power to regulate commerce between the States by the State, the majority of the court thinking it was not, but two of the judges holding that it was. The majority of the court put it on the ground of the right of the Federal government to require, and the correlative right of the citizen to have, free transit in ordinary travel throughout the whole country. The case was not argued except for the State of Nevada, and, while the decision may be sustained, it would seem to rest more strongly upon the view already taken as to the clause of the Constitution relating to citizenship and the con- struction of that clause by Justice Miller in the Slaughter- Płouse Cases.” Construing this clause in connection with the fourth of the Articles of Confederation, we have seen that it secured absolute freedom of ingress and egress to the citizen of any State into, through and from every other. On this 1 United States v. DeWitt, 9 Wall, 41; Webber v. Virginia, 103 U. S. 346; Plumley v. Massachusetts, 155 id. 461. 2 License Tax Cases, 5 Wall. 462, 473; Plumley v. Massachusetts, 155 U. S. 461. °Const. U. S., Art. I, sec. 9, clause 1; Chinese Exclusion Case, 130 U.S. 581; Nishimura Ekiu v. United States, 142 id. 651; Chinese Cases, 149 id. 698; Lau Ow Bew v. United States, 144 id. 47; Lem Moon Sing v. United States, 158 id. 539; United States v. Wong Kim Ark, 169 id. 649. 46 Wall, 35. 5 Const. U. S., Art, IV, Sec, 2. § 265.] LEGISLATIVE DEPARTMENT. 553 foundation the State tax is clearly unconstitutional, as would be any tax by Congress upon any such passenger. Mr. Justice Clifford and Chief Justice Chase, in their dissent, express strong doubts as to the possession of any such power by Con- gress—a doubt which grows into conviction against any such power, because of the article we have referred to. This power to regulate commerce applies to the District of Columbia and the Territories as well as to the States." This is obvious as to foreign commerce, but is also applicable to commerce between the District or Territories and the States upon the same reasons which were urged by the court in respect to the imposition of the direct tax upon the Dis- trict and Territories in the case of Loughborough v. Blake.” And so the power to regulate commerce strictly internal to the District and Territories belongs to Congress under the express provisions of the Constitution.” It was under the Congressional power that the Interstate Commerce Bill was passed regulating the rates of railroads and those of other car- riers engaged in interstate commerce; by this bill also the commission is constituted to adjudicate all such questions. As all these public carriers, if corporations, held their franchises under the States, their regulation of rates, etc., if they af- fected the rights of interstate commerce, would be as void as if done by the State under whose authority they were created. And Congress exercised the power to regulate such commerce by controlling the unjust action of public carriers in destroy- ing the freedom of this commerce which the Constitution designed. The Supreme Court has sustained the constitu- tionality of that act in several cases.” 1 Stoutenburgh v. Hennick, 129 Richmond & Alleghany R. R. Co. v. U. S. 141. R. A. Patterson Tobacco Co., 169 id. 25 Wheat. 517. 311; United States v. Joint Traffic 3 Art. I, sec. 8, clause 17; Art. IV, Ass'n, 171 id. 505; Hopkins v. United Sec. 3, clause 2. States, id. 578; Interstate Commerce 4 Maine v. Trunk Line, 142 U. S. Commission v. Alabama Midland 217; Interstate Commerce Commis- R. R. Co., 168 id. 144; Anderson v. sion v. B. & O. Ry. Co., 145 id, 263; United States, id. 604. Gulf, etc. Ry. Co. v. Hefley, 158 id, 98; 554 CONSTITUTIONAL LAW. [$ 266. § 266. A remarkable case arose before the Civil War, to which reference may be made." A Virginian shipped from a Virginia port a number of slaves on a steamer bound to the port of New York. He was carrying them to Texas, to which State he had removed. When they reached New York they were being carried from the wharf where the boat landed to another wharf where a Galveston steamer lay, to be placed on the latter to be transported to Texas. While in transitu from wharf to wharf they were intercepted, taken from the possession of the owner, and were by habeas corpus discharged from his custody, and declared to be free, under the laws of New York prohibiting slavery. The case was carried to the Supreme Court of New York and decided in favor of the slaves, that court affirming the decision of the court below, three judges in favor of affirming and two for reversing. Preparations were made to carry the case by appeal to the Supreme Court of the United States, when the Civil War broke out, which ended the controversy. The constitutional question involved was whether, when the slaves were in transitu from Virginia to Texas, the New York law of emancipation operated upon them at all; whether the power of Congress over interstate commerce did not free them from the jurisdiction of New York while in transitw from Virginia to Texas. It would seem upon principles settled by the Supreme Court in cases already referred to, that if the vessel upon which they were shipped for Texas had only stopped at New York, and continued from New York to Texas, the journey would have been continuous and the law of New York could not have attached.” But the Contrary contention was, that the continuous transit from Virginia to Texas was broken at New York by their transit from wharf to wharf to another steamer, and that, therefore, in that interval they became subject to the law of New York. In Pullman Car Co. v. Pennsylvania • the State power to 1 Lemmon Slave Case, 20 N. Y. 562, ton, 114 id. 622; Pittsburg, etc. Coal * Lehigh Valley R. Co. v. Pennsyl- Co. v. Bates, 156 id. 577. vania, 145 U. S. 192; Brown v. Hous- 3 141 U. S. 18. § 267.] I.EGISLATIVE DEPARTMENT. 555 tax the plaintiff upon the cars which were constantly in the State of Pennsylvania, upon such proportion of its capital stock as the miles of transit in the State bore to the whole number of miles in all the States over which the cars ran, was held not to violate the commerce power. The dissenting opinions of Judge Bradley and two other judges involve the question considered in the slave case supra. § 267. In closing this prolonged discussion of this impor- tant clause a few additional considerations may be noted. A State is held in many of the cases to have no power to tax a foreign drummer, nor to forbid a person or corporation freely to engage in interstate commerce, and the reason as- signed in the decisions has generally been that a State thus regulates interstate commerce. If this be so, then it would naturally follow that Congress could do these things because it is a regulation of commerce. This seems to the author to be a fallacy as to the ground of decision. For it has been seen that the article of the Constitution in reference to citizenship prevents a State or Congress from taxing or preventing inter- course of persons or transitus of property between the States. Both of these the Constitution left free, and they cannot be interfered with by State or Congress. Both are inhibited from the exercise of such power by the clause referred to." Again, in the case of Groves v. Slaughter,” the reasoning of the court is to the effect that while each State under its police power could forbid the importation of slaves from other States, Congress could not do so. How could it, by any regulation of commerce, force slavery into a State which repelled and forbade it. This made the police power supreme and paramount to the commerce power. On the same ground Congress cannot, under the interstate commerce clause, force into a State contrary to its law moral or phys- ical disease, or any institution of society which the State may forbid. The internal polity of the latter would be held paramount over any regulation of commerce to the contrary. Can dynamite or gunpowder, by a regulation of commerce, !Const. U. S., Art. IV, Sec. 2. 2 15 Pet. 449. 556 CONSTITUTIONAL LAW. [$ 267. be carried in uncovered cars through any State of the Union ? A negative answer is sustained by the whole current of au- thorities, and by the forcible language of the court in Crutcher v. Kentucky," in which Mr. Justice Bradley says: “Disease, pestilence, pauperism are not subjects of commerce. . . . They are not things to be regulated and trafficked in, but to be prevented.” 4. Reference may also be had to a very late decision in the case of Plumley v. Massachusetts,” in which, after the review of a large number of cases, the court, through Justice Harlan, uses this strong language: “We are not unmindful of the fact — indeed this court has often had occasion to observe — that the acknowledged power of the States to protect the morals, the health, and Safety of their people by appropriate legislation, sometimes touches, in its exercise, the line separating the respective domains of National and State authority. But in view of the complex system of government which exists in this coun- try, ‘presenting,” as this court, speaking by Chief Justice Marshall, has said, ‘the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous State governments, which retain and exercise all powers not delegated to the Union,” the judiciary of the United States should not strike down a legislative enact- ment of a State — especially if it has direct connection with the social order, the health, and the morals of the people— unless such legislation plainly and palpably violates some right granted or secured by the National Constitution or encroaches upon the authority delegated to the United States for the attainment of objects of National concern.” The question has been mooted whether Congress can reg- ulate negotiable instruments, interstate and foreign, and whether they constitute commerce within this clause. We have seen that an interstate bill of lading is beyond the power 1141 U. S. 47, 60, 61. 2 155 U. S. 461, 479. § 267.] LEGISLATIVE DEPARTMENT. 557 of a State to regulate, because such action would be a regula- tion of commerce." But this is the regulation of an instru- ment which connects itself with the thing which is in transitu interstate or to foreign countries. But could the contract in- wolved in negotiable paper be the subject of regulation by Congress? Upon this there are no decisions, but a negative answer to the question is strongly confirmed by the late case of Hooper v. California,” citing the opinion in Paul v. Vir- ginia" and other cases. Does this power include the improvement of rivers and harbors and the like by Congress? If it be the improvement of waters strictly internal to the State, the answer is in the negative.” But where the waters, though within a State, are parts of the water-way between points in that State to other States and to foreign countries, the power to improve them has been asserted with strong reasoning for the con- stitutionality of its exercise. Without going into this ques- tion fully, reference may be made to what has already been said about the regulation of commerce proposed between Virginia and Maryland in 1786, for a system of regulation of commerce between those two States. In this compact stipulations as to light-houses, buoys, etc., at points expressly for the safety of navigation, were held to be regulations of commerce.” We may fairly interpret the meaning of the words used in this clause by the meaning attached to them by previous compacts between the States. Furthermore, it was proposed in the convention that the States should not be restricted in laying tonnage duties for the purpose of clearing harbors and erecting light-houses. It was argued for the rejection of the proposition, and for the adoption of that in the Constitution, that no such duty should be laid by the State without the consent of Congress; that the power to clear harbors, erect light-houses and the like was included in the power of Congress to regulate com- 1.Woodruff v. Parham,8Wall. 123. 4 The Daniel Ball, 10 Wall. 557. 2 155 U. S. 648. 5 12 Henning's Statutes at Large, 88 Wall. 168. 50–55. 558 CONSTITUTIONAL LAW. [$$268, 269. merce. The power to build railroads for postal and mili- tary purposes will be hereafter considered. § 268. We come now to commerce with the Indian tribes. These tribes are held to be quasi-foreign nations, but are really domestic dependent nations, and trade with them is regulated by license or by prohibition. It is sufficient to refer to the cases.” * Power of NATURALIZATION. § 269. In the Articles of Confederation, article IV, there was a provision which gave the privileges and immunities of free citizens in the several States to the free inhabitants of each; and to the people of each State right of free ingress and egress to and from any other State, etc. (See Article in Appendix.) Mr. Madison, in the Federalist,” calls attention to the three terms used in this article, to wit: “free inhabtants,” “free citizens,” and “people,” and then proceeds to give reasons why this clause gave place to the clause in the Constitution, article IV, section 2, to which we have sufficiently referred; and why it became important under this clause for the inter- communication of the privileges and immunities of the citi- zens of each State to the citizens of the several States; and why it was important to substitute for the dissimilar rules of naturalization under the Confederation the uniform rule under the Constitution. This power in the Constitution is vested in Congress by these words: “To establish a uniform rule of naturalization.”* It is obvious that as the citizens of each State are to be entitled to all privileges and immunities of citizens in the several States, that each State is interested in the mode in which every other State creates the status of citizenship of foreigners or others; and therefore that citizenship which | Madison Papers, 1585, 1586. 491; Choctaw Nation v. United 2 Cherokee Nation v. Georgia, 5 States, 119 id. 1; United States v. Pet. 1; Worcester v. Georgia, 6 id. Rodgers, 4 How. 567. 515; United States v. Holliday, 3 3 No. XLII. Wall. 407; United States v. Forty- 4 Const. U.S., Art. I, sec. 8, clause 4, three Gallons of Whiskey, 108 id. § 270.] I.EGISLATIVE DEPARTMENT. 559 embraces such privileges and immunities would best be se- cured in every State in the Union by leaving its determina- tion to the common consent of all. This is one of the powers which is exclusive, when in exercise by Congress, of any such power in the States; and as to foreigners would seem to be exclusive whether in exercise by Congress or not. In the Federalist Mr. Hamilton lays down the rule that where the Constitution “granted an authority to the Union to which a similar authority in the States would be abso- lutely and totally contradictory and repugnant,” the power of Congress would be exclusive of that of the States. And he gives as an instance this very clause, of which he says: “This must necessarily be exclusive; because if each State had power to prescribe a distinct rule there could be no uni- form rule.” But despite this exclusiveness of power, the right of suffrage may be given by any State to aliens. The naturalization power does not include the suffrage power, which is exclusively reserved to the State.” It has been decided" that an Indian is not a citizen of the United States under the fourteenth amendment of the Con- stitution, unless naturalized, though he may sever his tribal relations. He belongs to a domestic dependent nation, as we have seen, and cannot be introduced into citizenship of any State of the Union but by the power of Congressional naturalization. It is needless to specify these various rules. A reference to the statutes is sufficient.* Power. OvKR BANKRUPTOY. § 270. The second part of the fourth clause of article I, section 8, clause 4, of the Constitution runs in these words: “To establish uniform rules on the subject of bankruptcies throughout the United States.” Correlated to this power of Congress is the prohibition of power on the States con- tained in a subsequent section” in these words: “No State 1 No. XXXII. 4 R. S. of U. S., §§ 2165–2174. ? Cooley on the Constitution, 5 Const. U. S., Art. I, sec. 10, pp. 77, 78. clause 1. 3 Elk v. Wilkins, 112 U. S. 94. 560 CONSTITUTIONAL LAW. [$270. shall . . . pass any law impairing the obligation of con- tracts.” Insolvency is inability to pay by reason of failure of assets. Bankruptcy is insolvency evidenced by certain acts. The creditor of an insolvent debtor may subject his assets to the payment of his debts, but if the debts be not paid the liabil- ity.continues; and the liability for the contract debt cannot be discharged by the law of a State. In England, from which our laws are derived, and in other countries of the world, the condition of bankruptcy, which substantially in- volves insolvency, arose as a matter of history from the con- tingencies and failures of commerce and trade. It became the policy of commercial countries deeply interested in com- mercial enterprises, which added wealth and power to the nátion, to release merchant traders from liability for debts incurred in their bold ventures, by a surrender of all their assets for the satisfaction, as far as they would go, of the debts of the bankrupt. It was held that the public had been interested in the great enterprises, and that the losses should not be visited too heavily upon the trader, who was the victim of misfortune. It was a part of the public policy, therefore, upon a full surrender of all his property, to re- lease the bankrupt from prior liabilities and leave him free to enter upon a new field of enterprise." As the citizens of each State were entitled to all the privi- leges and immunities of the citizens of the several States, the framers of the Constitution considered it a proper corollary from the power vested in Congress over foreign and inter- state commerce that this bankruptcy principle should be wested in the common government of the Union, to prevent the States from establishing diverse rules of bankruptcy, which would affect differently the creditors and debtors throughout the country. To give to the common govern- ment the regulation of this subject of bankruptcy, by uniform rules, would, while denying to the States the power to im- pair the obligation of contracts, west in Congress the power to impair the obligation of such contracts under a uniform 1 Cooley on the Constitution, pp. 78, 79. § 270.] LEGISLATIVE DEPARTMENT. 561 rule of bankruptcy. It does not follow, therefore, that, ex- cept by uniform bankrupt laws, Congress can impair the obli- gation of contracts any more than can any State. A State cannot, because prohibited; Congress cannot, because the power is not delegated. Indeed, the grant of qualified power to affect the obligation of contracts by a uniform law of bankruptcy seems likely to exclude Congress from the un- limited power to impair such contracts. (See ante, p. 508 et seq., the discussion of the legal tender question.) In the adjustment of the powers of the States and of Con- gress in respect to the insolvent and bankrupt laws, there has arisen much learned controversy among the judges of the Supreme Court. It has been decided that a State may, by law, discharge the person of a debtor upon his surrender to his creditors of all his property. (The old ca. Sa. law, under which the debtor's person was subject to imprisonment, is now everywhere abolished.) But it was decided at the same time that a State, while discharging the person of the debtor, could not discharge the debt or his obligation to pay it, be- cause that would be a violation of the clause of the Consti- tution we have cited." It has also been held that a State may absolve the future acquisitions of the debtor on such surrender of all his property to the claims of his judgment creditors. The creditor has forced the debtor to this sur- render, and he must submit to the condition which the law allows to him of absolution of future acquisitions upon the surrender of his all. But quare as to this. For the obligation of the debtor in- cludes not only what he then has, but what he may there- after acquire.” The leading cases on this subject are Sturgis v. Crowninshield and Ogden v. Saunders.” Without going into an analysis of these decisions, it will be sufficient to say that they have been explained in Boyle v. Zacharie," and followed and sanctioned in later cases.” 1 Const, U. S., Art. I, Sec. 10. 34. Wheat. 122; 12 id. 213 2 Satterlee v. Matthewson, 2 Pet, 46 Pet. 348. 380, 5 Cook v. Moffatt, 5 How. 295; } 36 562 CONSTITUTIONAL LAW. [$ 271. § 271. A summary of the results of these decisions will be now stated. 1st. The power of Congress to pass bankrupt laws is not exclusive of State power to do so; but when Congress passes such laws they are paramount to all State laws. The power in exercise is exclusive; when dormant it is not; but no bank- rupt law of a State which is so reserved to it when Congress does not exercise the bankrupt power can in any case impair the obligation of a contract. It may have a bankrupt sys- tem for the subjection of all the debtor's property to the pay- ment of all his debts according to some uniform rule, so as not to discharge the obligation of the contract of the bank- rupt with any of his creditors. 2d. But a State may, under such a bankrupt law, discharge the obligation of a future contract, but not a pre-existing One, and then only between its own citizens; because such future contract between its own citizens is held to be an obligation made with knowledge of such previously enacted law, and therefore subject to it. And such law cannot dis- charge a prior contract, though it may discharge the debtor's person; for his person is not part of the contract or its obli- gation. And so it has been held that a State may repeal a ca. Sa. law as to prior contracts without impairing the obliga- tion of such contracts, because the imprisonment of the debtor is a violation of his freedom, which cannot be considered to be a part of the essential obligation of the contract." 3d. But such a State bankrupt law, while it may affect future contracts between its own citizens, cannot do so as to contracts between its own citizens and those of other States, or between citizens of another State; because such a law, while presumably known to its own citizens when they enter into future contracts, cannot be known to the citizens of another State who may be parties to the contract. Baldwin v. Hale, 1 Wall. 223; Bald- v. Smart, 145 id. 454; Butler v. win v Bank of Newberry, Id. 234; Gorely, 146 id. 303. Gilman v. Lockwood, 4 id, 409; 1 Beers v. Haughton, 9 Pet. 328. Boese v. King, 108 U. S. 379; Prown § 272.] LEGISLATIVE DEPARTMENT. 563 But even in this case the authorities decide that where any creditor, whether of the State or of another, makes himself a party to and takes a benefit under judicial proceedings con- ducted according to such law, he will be held bound by it, as assenting thereto, and the debtor under such future con- tract will be discharged. The whole argument is set forth in the cases above cited." The bankruptcy system, regulated by the English law, and by all the laws of the United States prior to the Bankrupt Act of 1841, was based upon the rule of the right of a cred- itor “to throw a debtor into bankruptcy,” but had never allowed the debtor to become a bankrupt on his own appli- cation. Involuntary bankruptcy was the system prior to that time; since that time in the United States there has existed voluntary as well as involuntary bankruptcy. In an ably argued case in New York,” the court decided that the voluntary feature of the bankrupt law of 1841, involving a principle hitherto unknown in the bankrupt laws of other countries or of the United States, was unconstitutional, be- cause not the bankrupt laws within the contemplation of the Constitution. But that case was overruled by the cases in the Supreme Court above cited. PowiſſR To CoIN MONEY, ETC. § 272. The next clause of the Constitution is: “To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.” This power is correlated to the prohibition of the States coining money, or making anything but gold and silver coin a tender in payment of debts. By the Articles of Confedera- tion the Congress had the power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States, and of fixing the standard of weights and measures throughout the United States.” The present 1 Brown v. Smart, 145 U. S. 454; 3 Const. U. S., Art. I, sec. 8, clause 5. Putler v. Gorely, 146 id. 303. *Articles of Confederation, Art. 2 Kunzler v. Kohaus, 5 Hill (N.Y.), TX. 317–27, 564 CONSTITUTIONAL LAW. [$273. Constitution excludes the power of the States to coin at all, and gives to Congress the coinage of money and the regula- tion of the value thereof; that is, of its own coin and of foreign coins, and the fixing of the standard. Somuch has already been said on the nature of this power" that it is only necessary to say that the power to coin money and regulate its value, when connected with the words “and of foreign coin,” excludes all idea that this clause relates to paper money at all, or to anything but coined money. The first part of this clause, therefore, provides for the measure- ment of values in the coined money, which alone the States could allow to be used as legal tender; the latter to the reg- ulation of articles of commerce by the standard of weights and the standard of measurement. These provisions look to the intimate union of the States in trade and commerce, and intercourse among themselves and between them and foreign nations. It is impossible to have the regulation of commerce by the Union without a like regulation of coin- age, as the money which is the medium of such commerce and of coinage, weights and measures is essential to all. It is another proof of the wisdom of the men who framed it that the Constitution gave to the common government the complete management of those matters which concerned the business and commerce of the States external to each of them, while it retained to each State the exclusive control of everything that was a part of the internal polity. Congress under this power has established mints, and made provisions in reference to coinage, and the metric sys- tem of weights and measures, the details of which need not be gone into; but a reference to the statutes is all that is necessary.” Power To PUNISH CountERFEITING. § 273. The next clause is in this language: “To provide for the punishment of counterfeiting the securities and cur- rent coin of the United States.” 1 Page 508 et seg. 2 R. S. U. S., §§ 3495–3570. § 274.] LEGISLATIVE DEPARTMENT, 565 This is very briefly referred to by Mr. Madison in the Fed- eralist. The language of this article is suggestive of the con- clusions already reached in reference to its meaning. Mr. Madison says: “The punishment of counterfeiting the public securities as well as the current coin is submitted of course to that authority which is to secure the value of both.” The securities of the government are its obligations by bonds, notes, etc. The counterfeiting of these, as a distinct class of offenses from that of counterfeiting the coin, shows that there was no confusion in the minds of the framers of the Constitution. This power is not exclusive. The States may punish the passing of the coin, notes or securities of the United States. Congress may protect its coin and securities against the assaults of the counterfeiter; but the States may protect their people from the personal loss suffered by any one to whom they are passed.” º PostAL Power. § 274. By the Articles of Confederation Congress had the power of “establishing or regulating postoffices from one State to another, throughout all the United States, and ex- acting such postage on the papers passing thro’ the same, as may be requisite to defray the expenses of the said office.” Under this power Congress did establish, even before the Articles were adopted, postal arrangements throughout the States. Among the regulations of that period we note the following: Power by Congress to designate the posts by which mails may be carried, and the places through which they shall go; to make arrangements with European packets for conveyance of letters and the like; * to prescribe the post- age and the money to be received;" to authorize the Post- master-General to carry mail by stage carriages or otherwise, as he may think best; to form postoffices." The Postmaster- 1 Federalist, No. XLII, 3 Article IX of the Confederation. * Cooley on the Constitution, 82, *11 Journal of Congress, 154, 155. 83; Fox v. Ohio, 5 How. 410, 433; 5 Id. 84, 154, TJnited States v. Marigold, 9id. 560; 61 Id, 166. Moore v. Illinois, 14 id. 13. 566 CONSTITUTIONAL LAW. [$ 274. General was authorized to establish a line of posts and cross- posts as he shall deem best; the profits, if any, to be paid into the treasury, and if not enough, to be made good by the United Colonies;" and the mails were regulated, with no power to stop or examine them, except by the Committee of Safety of each colony.” And disaffected persons excluded from any connection with the mails. After the Articles were adopted an ordinance was passed in 1782 for establishing and regulating the postal depart- ment, providing for direct routes and for cross routes where deemed necessary, and postal rates. And the ordinance re- ferred to prohibited the carrying of letters by any others than employees of the department.” The provision in the present Constitution is much more simple. The words used in the Articles of Confederation were “establish and regulate.” The only word used in the Constitution is “establish.” There is no difficulty in the construction of these words to “establish postoffices,” etc., and they seem by clear implication to include not only the offices but the carriage of mail matter from office to office. The first question to be asked is, whether this power is ex- clusive, and does the grant of the power operate as a prohi- bition of it on the States? Mr. Hamilton lays down three tests, already referred to, of the exclusiveness of a power granted to Congress. 1st. Where the exclusiveness is ex- pressed in distinct terms; 2d, where the grant is made to Congress coupled with a prohibition of it to the States; and 3d, where the power is given to Congress to establish a uni- form rule, which would be defeated by the exercise of like power by the States. This power does not come under either of these three rules. It is not granted with a correl- ative prohibition to the States, nor is the idea of the term of uniformity expressed in the grant of the power. It would seem, therefore, to be clear that, if the power be not exer- cised, it may be exercised by the reservation of power in the States. If the power be exercised, however, it is per- 1 Id. 166, 37 ICl. 385. 22 Id. 131, 132, 4 Federalist, No. XXXII. § 274.] I.EGISLATIVE DEPARTMENT. 56'ſ haps exclusive to this extent, that the exercise of the power by the State will, if in conflict with the due exercise of it by Congress, be subordinate to the Congressional law. And the Supreme Court, in E:e parte Jackson, limited the power of Congress to the point of prohibiting articles which are legitimate mail matter from being carried over postal roads in competition with the postoffice department, but not as forbidding them to be sent by any other means as merchan- dise. This opinion would seem to leave to the States the exercise of the postal power where it does not compete with and thus interfere with the postal arrangements of the United States. And this view is sustained by the late case of In re Rapier and the case of I/ormer v. United States” in the same volume. So that it would seem that where the PostOffice Department refuses to carry any postal matter for any rea- son, the State cannot be prohibited from doing so through other media than the mails. Congress may establish and discontinue postoffices and post roads at will,” and the de- partment may change part of a road where it is impassable without changing the route." Congress has passed an act,” amended in 1890," prohibiting the conveyance of obscene matter through the mails. In the cases supra, the Supreme Court decided that Congress can regulate the entire postal system of the country, and may designate what shall be carried in the mail and what shall be excluded, and punish the deposit in the office of any such matter as is prohibited by the statutes mentioned. And fur- ther decided that the object of Congress was not to interfere with the freedom of the press or any other rights of the peo- ple, but to refuse the facilities of the mails for the distribu- tion of matter deemed injurious by Congress to the public morals, but that transmission of such matter so excluded in any other way would not be forbidden. But in Eu parte 196 U. S. 727. 4 United States v. Barlow, 132 2143 U. S. 110; Id. 207. TJ. S. 271. 3 Ware v. United States, 4 Wall. 5 R. S. of U. S., § 3894. 617. 626 Statutes at Large, 465, ch, 908. 568 constituTIONAL LAW. [$ 274. Jackson the court distinguishes between letters and sealed packages which are not open to inspection, and newspapers and the like left open for examination by postmasters; and held that no regulation in reference to personal papers and effects protected against unreasonable searches and seizures could be made except upon warrant issued upon oath or af. firmation as is required under the fourth article of the amend- ments of the Constitution. These decisions give sanction to these laws. But it is fair to express a doubt whether the duty involved in the power of Congress to carry postal mat- ter through the mails can be so regulated by law as to make it necessary and proper to exclude matter from the mails for its moral character, although if it be too bulky for conven- ient carriage, or if it contain germs of disease, it may be ex- cluded as a regulation necessary and proper to be made by Congress. To give to Congress the power to refuse to carry mail mat- ter because its moral quality may offend against the senti- ment of Congress involves a censorship over letters, postals and newspapers, which draws within the sphere of Congres- sionallegislation that which belongs only to the police power of the States. Sealed letters may be searched on warrant, and unsealed letters and postals may be searched without warrant; and to prohibit the correspondence of the people and the transmission of documents might, by the exercise of this power by Congress, in effect debar the people from the privilege of the mails. This jurisdiction, it is obvious, does not touch the duty of transmission of matter, but touches the moral quality of the matter itself. But if what the States do not condemn as immoral, or what they do con- demn by their own press, is to be made criminal by the law of Congress, and this power of Congress through the use of the mails becomes the paramount moral censor for the peo- ple of the States who may wish to use the mails, what is to be the effect of the transmission of matter through the mails which the State condemns and Congress sanctions? Can Congress under this power compel the postmaster to deliver § 275.] IEGISLATIVE DEPARTMENT. - 569 matter morally hurtful to people to whom it is addressed, though the State forbids its admission as a moral pestilence, or as the destroyer of the order and peace of society? This question has not been decided by the Supreme Court. That court has decided that a private party cannot compel the PostOffice Department to convey any immoral matter through the mail, but the court has never decided that the department can carry that which the State holds to be im- moral matter through the mail and deliver it to its citizens. Congress may refuse to touch the matter which it deems offensive or to permit its mails to be polluted thereby; but when it forces the State to receive into its society offensive matter which Congress does not condemn, or may even ap- prove, is it constitutional? The question of physical and moral quarantine arises here, and, as applied to the commer- cial power of Congress, may be equally applied to the postal power of Congress. To the State, as we have seen, is confided the care of the physical and moral health of its people. This view has been sanctioned by the highest judicial decisions. § 275. An interesting opinion was given by Mr. Attorney- General Cushing, March 3, 1857, in which he held and ad- vised the Postoffice Department, then under the control of Postmaster-General Joseph Holt, that where the mails were used as a medium for the transmission of incendiary matter inciting a portion of the people of a State to rebellion, the State had the constitutional power to prevent its recep- tion by its people from the hand of the postmaster. Under this opinion the Postmaster-General acted, and allowed a judicial procedure under State law to determine whether the matter transmitted in the mails was dangerous to the peace and Order and Safety of society, and on such decision the postmaster was required to deliver the matter to the custody of the State, and its distribution was prohibited for the preservation of the safety of society." The Attorney-Gen- eral maintained with great ability that in such cases a law of Congress which forbade the operation of the police power 1 Yazoo City Postoffice, Opinions of Attorney-General, vol. 8, p. 489 570 CONSTITUTIONAL LAW. [$276. of the State in a matter which threatened the State with insurrection was a violation of the constitutional duty, be- cause it incited to an insurrection, which by the Constitution the United States were compelled to suppress." * § 276. In the latter part of the clause are inserted the words “and post roads.” The establishment of postoffices may include the power to create them, if necessary and proper to carry out that power. The same construction ap- plies to the words “post roads.” It may involve the construc- tion of roads, if necessary and proper for postal purposes. The practice of the government under the Confederation and under the Constitution has been to designate, and thus give legal sanction and status, to the roads of the States as the postal roads of the government. If there were no roads, they being absolutely necessary to the transmission of mail matter, to make a road under such circumstances would be a fair exercise of power. But to make a road for other pur- poses and with other intent than for postal purposes, under cover of this power, would be neither necessary nor proper, but a fraud on the Constitution. It has already been pointed out that the proposition in the convention to grant the power of making canals was after full debate on its merits negatived by the vote of eight States to three.” In Pinckney’s plan there were two proposi- tions: “to establish postoffices,” and further on “to establish post and military roads.” The Committee on Detail reported only the proposition to establish postoffices. This would have left the matter substantially as it existed under the Articles of Confederation.” Subsequently, on consideration of the clause “to establish postoffices,” Mr. Gerry moved to add “and postroads;” carried, six States to five. 1 Const. U. S., Art. IV, sec. 4. In a speech of the editor, made in the House of Representatives on the 11th of December, 1893 (2d Sess. 53d Cong., Vol. 26, Appen. Pt. I, p. 3 et seq.), will be found in full the opin- ions of Attorney-General Cushing and Postmaster-General Holt, in the Yazoo City Postoffice Case, and that of the author, as Attorney- General of Virginia, in a similar case, as well as other matter bear- ing on this question. 2 Madison Papers, 1576–77. 3 Id. 740. 4 Id. 1232, The provision § 276.] LEGISLATIVE DEPARTMENT. 571. for military roads was left out permanently. The fair con- struction of the whole clause, therefore, is that as the mails can only be carried on roads upon the land, the power to establish, not make or construct, post roads was intended simply to grant the power to make them if there were none already made, where roads were necessary for postal pur- poses. This question has been an open one and much debated for nearly a century. We have seen that Mr. Madison was decidedly in the negative on the question; and Mr. Monroe, in his celebrated message of 1823, sustained it, not on the ground of the independent power to make the roads, but on his con- struction of the power to appropriate money for the general welfare, under which he claimed that, while Congress could not make the roads, it could appropriate money in aid of their construction. The power to build the roads, where not for postal purposes, has therefore never been settled. The Cumberland road was constructed almost exclusively with the money of the United States under the authority of successive acts of Congress. The States through which it passed authorized the United States to construct the road. The States subsequently took the road under their care, in So far as any part of it was in their domain, upon a contract with the United States upon a surrender of it to them by Congress. The State of Pennsylvania undertook to charge tolls upon the mail carriages passing over the road in that State. The court decided that such tolls were in violation of the contract between the United States and Pennsylvania, under which the State took possession of the road." This case and those cited in the note do not involve at all the con- stitutionality of the acts of Congress appropriating money for the Cumberland road. In the Sinking Fund Cases” the court held that Congress could enforce its contract with the Central Pacific road on its loan to it, irrespective of the constitutionality of the con- tract. The great transcontinental railways through the Ter- 1 Searight v. Stokes, 3 How. 151; 2 Union Pacific R. R. Co. v. United Neil v. Ohio, Id. 720; Achison v. States, 99 U. S. 700. |Huddleson, 12 How, 293, 572 CONSTITUTIONALL LAW. [š 277. ritories are defensible on the ground that Congress had the power of legislation over the Territories, which it did not possess in the States. It is true that Mr. Justice Bradley in one case" uttered a dictum that Congress can build railroads under the commerce clause. But that question did not arise in the case. The question decided was that a State could not tax a franchise granted by Congress to build a road, this being a grant for postal and military purposes. To this California consented, thus yielding her eminent domain.” The power of Congress to build a railroad, where necessary and proper for postal purposes or for military purposes, must be conceded as necessary and proper to carry out express pow- ers granted to Congress; but it is quite another thing to claim that it has power to build it as a regulation of commerce.” PowRR OVER COPYRIGHTS AND PATENTs. § 277. “To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.” This is a new clause in the Constitution, not found in the Articles of Confederation. It will be noted that Congress has not an unlimited power to promote the progress of science and useful arts, but that the terms of the clause limit it to two objects. “By securing for limited times to authors and inventors,” etc., it is obvious that in a Union where there was an intercommunication of the privileges and immunities of citizenship, the rights of authors and inventors, but for this article, in their respective States, would be of very little avail, and yet that the use of these writings and inventions would be general throughout the Union. It was natural, therefore, that this power should be given to Congress in order that authors and inventors might be protected in their 1 California v. Pacific R. R. Co., 8 But see Luxton v. North River 127 U. S. 1. Bridge Co., 153 U. S. 525, and Lake 2 Santa Clara Co. v. Southern Pa- Shore, etc. R. R. Co. v. Ohio, 165 cific Ry. Co., 118 U. S. 394; Pacific U. S. 365. Railroad Removal Cases, 115 id. 1. 4 Const. U. S., Art. I, Sec. 8, clause 8. § 278.] LEGISLATIVE DEPARTMENT. 573 exclusive right to their works and discoveries by patent and Copyright laws. This has been a valuable provision, and has stimulated authorship and invention in this country to an unparalleled extent. The cases upon this subject are too numerous to mention, but two may be referred to." The late decisions of the court have confined copyrights and patents for inventions to works and inventions involving the intellectual concept of the in- ventor or author. A lithograph or photograph of an original conception may be copyrighted, but not a mere mechanical copy. The photograph of Oscar Wilde, giving pose, dress, etc., as the original conception of the artist is a subject of Copyright, but a photograph or lithograph which is a mere copy of the original conception of another is not a subject of copyright.” The patent-right or copyright of an inventor or author does not give the right of use and sale in any State contrary to the police regulations of that State. A law of a State forbidding either is paramount to the patent-right or copyright conferred by Congress.” Patent laws have no extraterritorial effect.* Trade-marks are not included within this power; they are not inventions, but merely marks of ownership.” Under this power the late international copyright law was passed, by which security in the use of such rights by authors and inventors in foreign countries is guaranteed upon a reciprocal security of use to our authors and inventors in the country to which the privilege is granted. g PowRR To ESTABLISH INFERIOR CourTs, ETC. § 278. The next clause to which reference will be made is as follows:* “To constitute tribunals inferior to the Su- 1 Wheaton v. Peters, 8 Pet, 591; 41; Patterson v. Kentucky, 97 U. S. Wheaton and Donaldson v. Peters 501; Webber v. Virginia, 103 id. ' and Grigg, Id. 667. 344; Cooley on the Constitution, 2 Burrow-Giles Lithographic Co. 95, 96. v. Sarony, 111 U. S. 53; Banks v. 4 Brown v. Duchesne, 19 How. 183. Manchester, 128 id. 244; Callahan 5 Trade-Mark Cases, 100 U. S. 82. v. Myers, Id. 617. * Const. U. S., Art. I, Sec. 8, clauses 3 United States v. Dewitt, 9 Wall. 9, 10. 574 CONSTITUTIONAL LA W. [$278. preme Court; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” The first branch of this clause may be read in connection with a clause under the judicial power of the Constitution," which reads thus: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Constitution itself constitutes but one court and that the Supreme Court. It leaves to Congress the lib- erty of constituting from time to time, as policy may dic- tate, all the United States courts inferior to the Supreme Court. And under this power, as we shall hereafter see, Congress has established circuit, district, intermediate ap- pellate courts and court of claims, etc. The second branch of this clause gives to Congress the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. Piracy is a “public crime, not against any particular State, but against all States, and the established order of the world.” “Piracy is robbery on the sea, or by descent from the sea upon the coast, committed by persons not holding a commission from or at the time pertaining to any established State.”” “If the robbery be committed within the territorial jurisdic- tion of any nation it is not strictly piracy, and would be justi- ciable by the sovereign of the territory alone.” A pirate is hostis //uman?' generis; his crime is not local to a State, but as far as any one country is concerned against the property of its people on the high seas. For this reason the power is con- ferred on Congress to give equal protection to the property of all the States upon the high seas, and is not left to be de- fined and punished by the individual States.” The precise nature of this crime needs some legal defini- tion, and hence the power is given to define as well as to punish such piracy. Besides this, felonies may be com- 1 Const. U. S., Art. III, Sec. 1. * Cooley on the Constitution, 97, 2 Dana on Wheaton, note 83. and cases there cited. j § 279.] LEGISLATIVE DEPARTMENT. 575 mitted on the high seas, such as murder and the like, and when committed on a vessel of the United States would be properly cognizable by no one State, but by the represent- ative of them all as protector of the vessel on which the crime was committed. § 279. The last clause gives to Congress like power to de- fine and punish offenses against the law of nations. The wisdom of confiding this power to Congress is manifest. The Federal government is the representative of all the States in their individual relations with other countries. These rela- tions may breed conflicts with other nations. The duty to protect by their armies and navies in case of collision is im- posed on the Federal government; vesting in Congress as regards the conduct of war, in the President and the Senate as regards treaties of peace and amity. To have left this power to the individual States would have imposed on the Federal government the defense of each State against for- eign invasion in any collision which their separate relations might bring about, thus burdening all with the peril and expense of war for the defense of each in its separate deal- ings with every other nation in the world. Some years ago complaint was made by some of our South American neighbors that systematic counterfeiting of their public securities in the commercial marts of the United States was damaging their credit and their capacity to issue their genuine securities in the United States upon which to raise money. It was complained that the United States were, in effect, a harbor for these gangs of counterfeiters, and they asked for some redress or remedy. This resulted in the pas- sage of a law denouncing this practice as an offense against the law of nations, because, under cover of the United States, it was an offense against the rights of other nations. The offense was defined and punishment imposed. In a case before the Supreme Court,” a conviction under this law was 1 Two recent cases may be re- United States, 137 U. S. 202; United ferred to as showing the scope of States v. Rodgers, 150 id. 249. the words “high seas.” Jones v. *United States v. Arjona, 120 U. S. 479. 576 CONSTITUTIONAL LAW. [$$ 280, 281. affirmed. The considerations justifying this law and making it constitutional are fully stated in the opinion of the court. See also Report of the Judiciary Committee of the House of Representatives on that subject." - THE WAR Power. § 280. The War Power of the United States may be com- prehended under the next five clauses of the eighth section of the first article. They involve the following heads: To declare war; to grant letters of marque and reprisal; to make rules concerning captures on land and water; to raise and support armies; to provide and maintain navies; to provide for calling forth the militia; to make rules for the land and naval forces; and to provide for Organizing, arming and dis- ciplining the militia, etc. These clauses will be considered in order. The tenth clause gives to Congress the power to declare war. § 281. As an original proposition, a declaration of war is necessary to its existence; for by war the citizens of the two belligerent nations are quasi-enemies. All other nations must observe neutrality between them, and must recognize the rights of each, by warlike measures, blockade and the like, to put a check upon freedom of trade of the non-belligerent nations with either of those at war. Without some public announcement of this abnormal status between nations once at peace and now at war, great confusion might arise affect- ing the rights of nations other than the belligerents. In Greece and Rome, and even in the European countries in the Middle Ages, such public declaration was uniformly made, and was regarded as obligatory. But since the middle of the eighteenth century, formal declarations have not been universal and have fallen into disuse. This disuse of the for- mal declaration arises from the publicity and circulation of intelligence peculiar to modern times. Countries have their ambassadors at the different courts of the world, and in our day steam and cable make it impossible for a nation to en- 1 Forty-eighth Congress, First Session, H. R. No. 1829. § 281.] LEGISLATIVE DEPARTMENT. #77 gage in war without the world’s knowing it." Still, President Woolsey states that the party entering into war is bound to indicate it by some public acts which will be equivalent to a public declaration, such as sending away an ambassador, non-intercourse, and the like. Furthermore, its own people Ought to know that they have been made enemies, not friends, of the subjects of the belligerent enemy of their country. Neutrals have a right to know of the state of war, and are not bound to observe the duties of neutrals until notified.” The language of the Constitution was obviously adopted with a view to making public the important fact of the status of belligerency between the United States and any other country. But as declarations are merely a mode of notification, the fact of war may speak louder than words; and the language of the Constitution cannot be evaded by a change in the custom of nations which dispenses with a for- mal declaration, nor can the United States be thrown into war with another power through any other authority than that of Congress. The words “to declare” include the power to make war, with all the incidents of raising armies and navies which the Constitution has confided to Congress. It is well, therefore, to guard against the inference that, be- cause the declaration of war is not now held necessary to constitute the status of belligerency, the President may plunge the country into war without that which is equiva- lent to a declaration of it by Congress. The war with Mexico was never openly or in terms de- clared by the United States, but Congress passed an act the preamble of which read, “Whereas war exists by the act of Mexico,” etc., which act was the invasion of the territory of a State; and the United States accepted the state of war as a fact without a formal declaration. But an act of Con- gress is necessary to create a state of war between the United States and any other country. 1 Woolsey on International Law, *Woolsey on International Law, 187–92; Hall on International Law, 198–93. 379–81. 37 578 CONSTITUTIONAL LAW. [$$ 282, 283. § 282. The next clause runs, “to grant letters of marque and reprisal.” It is sufficient to say of these words that they may permit the grant of public authority to persons who are not in the regular service of the country to exercise the public power of warring upon and capturing vessels of the enemy upon the high seas; giving rise to the habit of what is known as privateering. The authority of a privateer to exercise this war power is derived from the sovereign authority under which he acts. If he acts otherwise he is liable to the charge of piracy. Thus the policy of privateering, now very much inveighed against, was in the minds of the framers of the Con- stitution, because it enabled the militia of the seas to supple- ment the regular naval forces of the United States in conflicts with great naval powers. The issue of these letters is a part of the war power of Congress. It may be well to say that the power to grant these letters is denied to the States, and also the power to engage in war, unless actually invaded, etc. The power “to make rules concerning captures on land and water” vests in Congress the determination of the subjec- tion of the property of an enemy to capture and condem- nation. And in an early case" it was held that the property of an alien enemy found in the United States could not be condemned as prize without an act of Congress to authorize it. This includes the power, through the establishment of prize courts, to regulate the method in which a capture shall be brought into our hands for adjudication, and the princi- ples upon which it shall be condemned as lawful prize. § 283. The next clause grants the power to “raise and sup- port armies.” This no doubt means a regular force as dis- tinct from militia, the calling forth of whom is provided for by a distinct clause. No limit is placed upon the size of the army, for the reason so often assigned by the authors of the Federalist, that no limit could be assigned to the necessities of the country for defense. But an important limit is put upon the permanency of this army, which recalls the English check upon the power of the Crown as the declarer of war, 1 The Thomas Gibbsons, 8 Cr. 421. § 283.] LEGISLATIVE DEPARTMENT. 579 and as the generalissimo of the army. One of these checks is the peculiar form of the bill to raise the army, which gave it the name of the Mutiny bill (see ante"); there being no similar provision in our Constitution. But the other British check is substantially embodied in this clause in the words, “But no appropriation of money to that use shall be for a longer term than two years.” In England the term is one year. It was made two years by our Constitution because the term of service of the House of Representatives is two years. The forbidding of an appropriation for the support of an army for a longer period than two years makes it im- possible for the President to use that army beyond that term for any illicit purpose, without the renewal of the appropria- tion by the two houses of Congress. It is a most potent check upon the abuse of power by the President as commander-in- chief, and was within the view of the framers of the Consti- tution, as appears from the strong statement of Mr. Hamilton in the Federalist,” which is worthy of insertion here: “The legislature of the United States will be obliged by this pro- vision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constitu- ents. They are not at liberty to west in the executive depart- ment permanent funds for the support of an army; if they were even incautious enough to be willing to repose in it so improper a confidence.” This being so, it is in the power of Congress to condition the grant of money for the support of the army upon terms which will secure its non-use by the President, even during the two years, for any purpose hos- tile to the liberty of the people. The question arose under the Conscription Act passed by the Confederate Congress during the late war, whether it was competent for that Congress by conscription substantially to exhaust the material Out of which the militia was com- posed. It was objected that this would make a standing army composed of the whole of the militia of the country, 1 Ch. IV. 2 No. XXVI. 580 CONSTITUTIONAL LAW. [šš 284, 285. and would leave to the States no armed force to resist its power. The Court of Appeals of Virginia decided there was, and could be in reason, no limitation put upon the size of the army which was to be raised, and that the objection to the law was not good." . - ! § 284. The next clause is, “To provide and maintain a navy.” It will be seen that the two years' limit on appro- priations for this purpose is omitted. A navy on the seas cannot be used, as an army on the land may be, for the de- struction of liberty. The words used as to these two forces are different. The words “to raise and support armies” have not the idea of permanency in them, because there is the intimation that the army may be raised only when a con- tingency arises making it necessary. It involves the idea of raising it when needed, and supporting it while needed; but let it disband under the two years’ limit if there be no need for it. But there is, in the words “to provide and maintain a navy,” a very significant intimation of its perma- nency in maintaining it, that is, holding it in the hand. It is according to the genius of our Constitution, then, that while standing armies are to be avoided, the maintenance of a navy is to be favored. The next clause, “To make rules for the government and regulation of the land and naval forces,” vests in Congress, and not in the Executive, the framing of the rules and articles of war; for the government and control of the citizens who may be in the land and naval forces and for regulating their conduct. In this clause we may see the jealousy of execu- tive power, and the favor to the representatives of the peo- ple, lest the rules and articles of war might be unduly severe and tyrannical. § 285. The next clause provides for calling forth the militia, and executing the laws of the Union, suppressing insurrection, and repelling invasion. This authorizes Con- gress alone to make provision for putting the militia of the country under the command of the President for the pur- 1 Burroughs v. Peyton, 16 Gratt. (Va.) 470. As to enlistments, see Inre Morrisey, 137 U. S. 157. § 286.] LEGISLATIVE DEPARTMENT, 581 pose named in the clause, and this is made more clear by reference to a subsequent provision: “The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.” The call is to be made under the provisions of an act of Congress. By an act passed in 1795 Congress gave power to the Presi- dent to call out the militia for certain purposes, and by subsequent acts in 1807 power was given to him to be ex- ercised whenever he should deem it necessary for the pur- poses stated in the Constitution; and the Supreme Court has decided that this executive discretion in making the call could not be judicially questioned." - It is perhaps proper that as the duty devolves on the President to see that the laws are faithfully executed, Con- gress should west in him the power to call out the militia whenever he deems it necessary in order to execute the laws of the Union. His recent action in the city of Chi- cago has had judicial sanction in the Debs Case.” The power to suppress insurrection by a call upon the militia applies only to insurrections against the authority of the United States, for the reason that as to any insurrection against State authority a distinct provision is made.” The power to call forth the militia to repel invasion grows out of the duty of the United States to protect each of them against invasion.* Power OVER THE MILITIA. § 286. Congress is authorized “to provide for calling forth the militia to execute the laws of the Union, suppress insur- rections and repel invasions.” " This clause requires careful consideration. Under the Confederation, Congress, as we have seen, had no power to raise revenue, but was dependent on the States; and while 1 Houston v. Moore, 5 Wheat. 1; * Const. U. S., Art. IV, Sec. 4. Martin v. Mott, 12 id. 19, * Id., Art, IV, Sec. 4, 2 In re Debs, 158 U. S. 564, *Id, Art. I, Sec. 8, clause 15. 582 CONSTITUTIONAL LAW. [$ 286. it had power to “build and equip a navy,” it had no power to raise land forces, and could only make requisitions upon each State for its quota in proportion to the number of white inhabitants in such State, which requisitions should be bind- ing; and thereupon the legislature of each State should ap- point the regimental officers, raise the men, etc., who should then march to the place appointed by the United States in Congress assembled. Under this clause of the Confedera- tion the States had the power only to appoint regimental officers in the Continental army so raised. The general offi- cers were appointed by the United States. This did not touch the militia at all, the control of this force being left exclusively to the States. The Constitution of the United States, as we have seen, gave to Congress an independent power to raise an army and provide a navy; and it is inter- esting to observe that under the Confederation the power to build a navy was granted to Congress, while the power to raise armies is denied. And furthermore, the power to appoint all naval officers was granted to Congress, and the power to appoint regi- mental officers in its own army was denied, leaving only a power to appoint general officers. Along with the power granted in the Constitution to raise armies and provide a navy, the power to appoint all officers of the standing army and navy was conferred upon the Federal government. This cured the vice of the Confederation by vesting in Congress a power independent of the State to raise the standing land and naval forces of the United States. Along with this we may note the prohibitions on State power. It is provided: “No State shall, without the consent of Congress . . . keep troops or ships of war in time of peace . . . or en- gage in War, unless actually invaded, or in such imminent danger as will not admit of delay.” This prohibition upon the States, it will be observed, only provided against the States keeping a standing army or vessels of war, but did not apply to the militia; and the prohibition related only * Const. U. S., Art. I, sec. 10, clause 3. § 286.] IEGISLATIVE DEPARTMENT, 583 to a time of peace; so that the State is left free to keep troops or ships of war in time of war. And furthermore, a State may not engage in war, unless actually invaded, or in imminent danger. That is to say, while not permitted to declare an offensive war, it is not precluded from engaging in war when actually invaded or in imminent danger. The militia of each State, while liable to call under the power of Congress, is subject entirely to the State control, except as modified by the clause now under consideration. But the jealousy of the States, while according independ- ent power to Congress as to the regular army and navy, guarded their own control over the militia force by the fif- teenth clause, special attention to which is now directed. By reference to the fifteenth clause it may be seen that the precise power given to Congress over the militia is in these words: “To provide for Organizing, arming and disci- plining the militia, and for governing such part of them as may be employed in the service of the United States.” (See also fourteenth clause, supra, and article II, section 2, clause 1, of the Constitution, and the fifth amendment to the Consti- tution.) The power of Congress to govern the militia is ex- cluded, unless they are employed in the service of the United States, which leaves to Congress nothing but the power to provide for Organizing, arming and disciplining the militia. This power, as appears from the debates, looked to the organ- ization of the militia into divisions, regiments and the like, and to furnishing arms, which had always been done, and to establishing rules by which recruits were to be disciplined, involving tactics and the like. No control over the militia was given to the Federal government, except when that gov- ernment might call them into its service for the purpose stated in the fifteenth clause. The latter part of the clause under consideration Was confined to the reservation to the respective States in respect to the militia. That reservation is in these words: “The appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” The appointment of the officers 2 584. CONSTITUTIONAL LAW. [š 287. means all officers, general and regimental; SO that the Or- ganization prescribed under the first part of the clause is to be put into effect by the State's appointment of the officers prescribed by Congress for the organization. The power to train the militia according to the discipline prescribed by Congress is exclusively reserved to the States. So that whenever the militia, as such, are called into the service of the United States, they come as a State organization, all of whose officers are commissioned by the State and hold under its authority. § 287. It is proper to add that the President is the com- mander-in-chief of this militia when called into actual service, and by implication is to be governed by the rules and articles of war for the regular forces by the terms of the fifth amend- ment. In confirmation of these views, a brief reference to the history of this clause in the debates of the convention may now be made. In Mr. Pinckney's plan the power was to be given to Con- gress to pass laws for arming, organizing, and disciplining the militia." In the report of the Committee of Detail that clause was left out, and the power to call forth the militia. was alone retained. Later in the session Mr. Mason pro- posed that Congress should have the power “to regulate the militia.” Subsequently Mr. Mason again proposed to give power for the regulation and discipline of the militia, re- serving to the States the appointment of officers. Mr. Ells- worth strongly objected against taking the authority over the militia from the States, “whose consequence would pine away to nothing after such a sacrifice of power.” Dickin- son said: “We are come now to a most important matter, that of the sword. . . . . The States never would, nor ought to, give up all authority over the militia.” Sherman objected to the States’ giving up on this point. Gerry said to surrender on this point would put upon the plan “as black a mark as was seen on Cain.” The question was referred to the Grand Committee. The committee on August 21st re- 1 Madison Papers, 740. 2 Id, 1361–64. § 287.] LEGISLATIVE DEPARTMENT. 585 ported the clause as it now reads in the Constitution, except that the words “to provide” are in the Constitution where the words “to make laws” were in the report." On the 23d of August Mr. Sherman moved to strike out of the clause the last words, “and authority of training,” etc. Ellsworth ob- jected, and Sherman withdrew the motion. Mr. Madison moved to amend the clause so as to give to the States the ap- pointment only of officers under the rank of general officers. Sherman and Gerry warmly opposed this. On the motion, there were ayes three States, noes eight States, Virginia dis- senting from Mr. Madison's motion. The clause was then adopted as it now stands.” So that the power of appointing officers, reserved to the States, included general as well as regimental officers. The adoption of this clause in the form it now assumes is therefore a matter of great consideration, and was regarded as a matter of essential importance. The effect of it has already been remarked upon in a former part of this work. But the action of the framers of the Consti- tution in the reservation of this exclusive command of the militia to the States, subject to the provisional arrangement for Organizing, arming and disciplining wested in Congress, gave rise to two articles in the Federalist, one by Madison and the other by Hamilton, which demonstrate that it was the purpose of the Constitution to give to the States a re- served military force with which they might by warlike resistance oppose the usurpation of power by the Federal government. Mr. Hamilton says:* “But in a Confederacy, the people, without exaggeration, may be said to be entirely the masters of their own fate. . . . It may safely be re- ceived as an axiom in our political system, that the State governments will, in all possible contingencies, afford com- plete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men as of the people at large. The legislatures I Id. 1378. 8 Federalist, No. XXVIII. 2 Id, 1402, 1408. 586 CONSTITUTIONAL LAW, [$ 287. will have better means of information; they can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at Once adopt a regular plan of Opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty. e “The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign enemy. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the Federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advan- tages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed and its resistance revive. . . . When will the time arrive that the Federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity and system of independent nations? The appre- hension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.” Mr. Madison adopts the same course of reasoning, and, after estimating the probable size of the standing army of the United States, says:* “To these would be opposed a militia amounting to nearly half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia. 1 Id., No. XLVI. § 288.] LEGISLATIVE DEPARTMENT. 58'ſ thus circumstanced could ever be conquered by such a pro- portion of regular troops.” These statements of two great writers, members of the Federal Convention, urging the ratification of the Consti- tution by the people of the States, are conclusive evidence to show that the power over their militia is reserved to the States, in order, in an exigency created by Federal usurpa- tion, that with arms in hand they might defend their liberties against the power of the Federal government, and under the direction of their own State authorities. These clauses thus considered may be regarded as constituting the war power. § 288. The war power has been a fruitful source of ad- judication since 1861 in respect to the events and conse- quences of the memorable civil war. The solution of the litigated question as a scientific problem rests at last upon the determination of the fundamental question as to the validity of the act of secession of the Southern States of the Union. If it was a constitutional act, two countries were created by it, which by the results of the war have been re-knit into one. Or was it an attempted revolution, which if successful would have made two countries, but which, having failed, is to be construed as an unlawful at- tempt to overthrow the original government 2 The author will venture elsewhere in this work to state his own views on this subject. For the present he will con- sider the judicial decisions based upon the Federal theory of the war between the States, which involves the denial of the right of secession, the legal existence of the Confederate States, and recognizes the Union as restored upon the over- throw of an illegal insurrection against its authority. This restoration, even if not de jure, may be conceded to be defacto; and we may in a treatise of this kind take the adjudications of the restored Union as a judicial statement of the law of the country, without regard to the contrary views, which can have, in the result, no effect in any political sense, however interesting they may be regarded in the historic discussion of the subject. 588 CONSTITUTIONAL LAW. [$288. Assuming then that the restored Union is rightful, and especially because of the new amendments adopted by the formal methods provided by the Constitution, we will pro- ceed to consider the war power under the light of the decis- ions of the Supreme Court, with such candid criticism upon them as shall be proper from their standpoint as to the his- toric questions involved, putting out of view what may be characterized as the secessionist views of the Southern States in their withdrawal from the Union in 1861. The leading cases upon this subject are the Prize Cases." The question involved was, whether or not certain vessels were liable to capture for violating the blockade proclaimed by the President of the United States before the recognition of a state of war between the United States government and the Confederate States by an act of Congress. The court, five judges concurring and four dissenting, held that the civil War between the United States and the Confederate States gave to the United States the same rights and powers that they could exercise in a foreign war, and that they have the right jure bellº to institute a blockade of any ports in posses- sion of the Confederacy; that the proclamation of the Presi- dent was conclusive evidence that a state of war existed, which authorized a recourse to blockade. The dissenting judges held that until the act of Congress recognized the existence of war, the power to blockade the ports of the Confederacy arose and could be instituted by the President under his power as commander-in-chief. All the judges con- curred in holding the act of Congress valid, and the block- ade a legal means of conducting a civil war; and all agreed that the so-called insurrection of the Southern States had as- sumed the proportion of a civil war, which existed in con- stitutional contemplation after it was recognized by the act of Congress on the 13th of July, 1861; and that the President did not possess the power to declare war or to recognize its exist- ence and then order a blockade. The point at issue between the judges of the court was, whether or not the status of war 1 2 Black, 635. § 289.] I.EGISLATIVE DEPARTMENT. 589 could be created in any other way than by Congressional recognition, whether the war was foreign or civil. The ma- jority held it could, and went so far as to hold that the proc- lamation of blockade was at once a constitutional institution of the status of war, and the exercise of a power resulting from that status. It may be conceded that the President as commander-in-chief may institute a blockade as an act of war, but whether he can declare or institute war is a differ- ent question. That is for Congress. It may be noted that to blockade a port of a State of the Union is a clear violation of the Constitution, even by act of Congress. It violates the clause which declares, “No pref- erence shall be given by any regulation of commerce or rev- enue to the ports of one State over those of another.” But it is claimed that it could be done under the war power. The Confederate State, being a quasi-foreign State, was held to be subject to blockade, and not subject to the above clause in reference to preference, etc. It would seem to be a great stretch of power to suppose that the President could do this without an act of Congress, when he had no power either to regulate commerce or to declare war. § 289. It may be stated as a result of the decisions of the Supreme Court, to use the language of Chief Justice Waite in the case of Zamar v. Brown,” that “It is quite true that the United States, during the late war, Occupied a peculiar position. They were, to borrow the language of one of the counsel for the plaintiff, both ‘belligerent and constitutional sovereign; but, for the enforcement of their constitutional rights against armed insurrection, they had all the powers of the most favored belligerent. They could act both as belligerent and sovereign. As belligerent, they might en- force their authority by capture; and, as sovereign, they might recall their revolted subjects to allegiance by pardon, and restoration to all rights, civil as well as political. All this they might do when, where, and as they chose.” Chief 1 Art, I, Sec. 9, clause 6. 292 U. S. 195. 590 CONSTITUTIONAL LAW. [$ 289. Justice Waite, in the case of Texas v. White," said: “The ordinance of secession, adopted by the convention and rati- fied by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation of law. The obligations of the State as a member of the Union, and of every citizen of the State as a citizen of the United States, remained perfect and unimpaired. It cer- tainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were other- wise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion, therefore, is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred.”” These cases placed the citizen of the Confederate States in a double relation to the government of the Union. He was recognized as a rebel to its authority, but at the same time as a public enemy to his country. For civil, criminal and municipal purposes they were citizens; for confiscation of property they were not entitled to due process of law, being public enemies. All the rules of public war applied to their condition. Their property might be seized by the most rig- orous laws of war; they might be subjected to the forfeit- ure of their property, as if convicted traitors, without trial or conviction. The punishment for treason might be in- flicted in the forfeiture of their property because they were guilty of treason, and they were divested of the rights of trial guarantied by the Constitution because they were pub- lic enemies. It is obvious that, if either theory be adopted as the correct one, the results must be absolutely inconsistent. It was only by treating them in the double aspect of public enemies, sub- 17 Wall, 726. 2 Accord: White v. Hart, 13 Wall, 646; Keith v. Clark, 97 U. S. 454 § 289.] LEGISLATIVE DEPARTMENT. 591 ject to the most rigorous laws of war, now disused, however, and as guilty of treason to their country, that the penalty to which they were subjected could be held to be properly inflicted. If the Confederate was not out of the Union, how could his property be forfeited without trial and conviction of treason P But confiscation without trial or conviction was held constitutional. In Miller v. United States, the stocks owned by Miller in railroads and other corporations were libeled in behalf of the United States and his property confiscated, he having been a resident of Virginia during the war. He did not ap- pear, nor did any one for him; but it was proved ea parte that he was an adherent of the Confederacy. The judgment of confiscation was sustained by the Supreme Court, Justices Field and Clifford dissenting. The court held that so much of the acts as were in the exercise of the war powers of the government were not subject to the fifth and sixth amend- ments of the Constitution, which required indictment by grand jury and trial by petit jury before confiscation; that they were not to be considered as the exercise by the gov- ernment of its municipal power; and that in the war of the rebellion the United States had belligerent as well as sover- eign rights. They had a right, therefore, to confiscate the property of public enemies wherever found, and also the right to punish offenses against their sovereignty. They might be treated as public enemies or as rebellious citizens. So in the case of Mrs. Alexander's Cotton,” the property of Mrs. Alexander was seized and confiscated, because of her residence in rebel territory, under the Captured and Aban- doned Property Act. By the act of July 17, 1862,” and of August 6, 1861, Con- gress provided for the confiscation of property used for in- surrectionary purposes and for the confiscation and sale of the property of rebels. In Miller v. United States, supra, these laws were held to be constitutional. 1 11 Wall. 268. 3 12 Statutes at Large, 319. 22 Wall, 404. 4 Id, 589. 592 CONSTITUTIONAL LAW. [$289. Contemporaneously with the act of July 17, 1862, a joint resolution was passed, at the instance of President Lincoln, providing that a forfeiture of the real estate of the offender should not extend beyond his natural life, because contrary to article III, section 3, clause 2, of the Constitution, which provided that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. This resolution was held in Wallach v. Van Rys- wick to leave the estate in remainder after the death of the Offender to pass to his heirs, and that the joint resolu- tion qualified the act of July 17, 1862, but did not defeat it. Wallach conveyed a lot in fee simple to the purchaser at the confiscation sale in 1866, and the court held that the deed did not convey the remainder in fee. In the case of Railroad Co. v. Bosworth,” the court de- cided that despite the condemnation decreed under the said act, such a right in the remainder was vested in Bosworth that he could dispose of it after receiving a full pardon from the President. This case was different from Wal- lach v. Van Ryswick, because of the fact that Wallach in that case had made a deed before pardon, which was inef- fectual to convey any right against the claim of his heirs. In the latter case the conveyance was made after pardon, which wiped out his offense and all of its consequences, and restored the title to him in fee simple. But in Jenkins v. Collard” the deed was made before pardon, but with a cow- enant of seisin, and a warranty against the lawful claims of all persons whomsoever. The court held that the warranty estopped the heirs of the grantor from claiming against his deed. s In the case of United States v. Dunnington, the doctrine was affirmed that under the act of July 17, 1862, and the joint resolution aforesaid, the forfeiture operated upon the life estate of the offender, the fee remaining in him after the confiscation, but without power of alienation until his dis- 192 U. S. 202. 3 145 U. S. 546. 2 133 U. S. 92. 4 146 U. S. 338. § 290.] LEGISLATIVE DEPARTMENT. 593 ability was removed; and that the deed, as in Jenkins v. Col- lard, made prior to pardon, with warranty against the claim. of the heirs, was operative against the heirs after the dis- ability was removed by pardon. Another class of property was seized during the war under the name of “captured and abandoned property,” which was seized and sold under proceedings defined by the act of March 12, 1863, and the proceeds paid into the treas- ury and held in trust for the owners who proved loyalty be- fore the Court of Claims. In the case of United States v. Klein,” the court held that this act did not confiscate or absolutely divest the title of the original owner, even though disloyal. The government constituted itself a trustee for those who were lawfully entitled to it, and it was held that a pardon wiped out guilt and all its consequences.” After pardon a disloyal person could recover the fund in the treas- ury as if he had been originally loyal." § 290. These various acts of Congress which forfeited the property of disloyal citizens of the United States, except in the single case of the forfeiture of real estate, which was qualified by the joint resolution referred to so as only to op- erate for the life of the offender, were all effected by ea parte proceedings against the owners, either as belligerent citizens of the public enemy, or as citizens of the United States sub- ject to the penalty of forfeiture without trial under the Con- stitution of the United States. And while the condemned person was subjected to the forfeiture of realty only, accord- ing to the terms of the Constitution, the forfeiture of all other property was without any such qualification, being absolute forfeiture without trial or conviction. These acts were decided to be constitutional by the Supreme Court, and without any dissent. Without controverting these judg- 112 Statutes at Large, 820. 4 Carroll v. United States, 13 Wall. 2 13 Wall. 128. 141; Pargoud v. United States, Id. 3 Ex parte Garland, 4 Wall. 380; 156. Railroad Co. v. Bosworth, 133 U. S. 103; Jenkins v. Collard, 145 id. 546. ! 38 594 constitutionAL LAW. [$ 290. ments of the court, it may be questioned whether they would be held to apply in ordinary insurrections, or in any case of insurrection which did not assume the form of a powerful and well-established de facto government ruling exclusively within its territorial boundaries. Another class of questions may be noticed as of great in- terest. All acts of the government of the Confederacy in aid thereof, as the issue of notes, bonds and the like, and acts of sequestration against citizens of the loyal States, were held to be absolutely null and void;' and all acts of any State of the Confederacy in aid of the rebellion as above mentioned were also held to be null and void. But acts affecting merely the private rights of persons living in the Confederacy, as marriage, divorce, proceedings in courts, judgments, and laws for the order and peace of society, by the several States of the Confederacy, were held to be valid. Thus, in Thorington v. Smith,” the court de- creed the specific performance of a contract for the sale of land in Confederate notes. This results from the fact that the seceded States were still States, Bodies-politic, and not Out of the Union.” The acts of the Confederate States. courts were held to be nullities, but not the decisions of the courts of the Confederate States individually.” A law which allowed notes for money to be solvable in Confederate money was held valid, and the notes could be recovered on for the scaled value in real money;” but it was held that a law which allowed the recovery of the real value of the article sold, and not its scaled price, impaired the original contract, and was void under article I, section 10, clause 1, of the Con- stitution. 1 United States v. Insurance Cos., v. Clark, 97 U. S. 454; Coleman v. 22 Wall. 99; Stevens v. Griffith, 111 Tennessee, Id. 509. TJ. S. 48. 4 United States v. Insurance Cos., 28Wall. 11. Accord: Chase, C. J., 22 Wall. 99; Stevens v. Griffith, 111 in Evans v. Richmond, Chase's Dec. U. S. 48. 551. 5 Gavinzel v. Crump, 22 Wall, 308; 3 White v. Cannon, 6 Wall. 443; Stewart v. Salamon, 94 U. S. 434; Texas v. White, 7 Wall. 700; Keith Bissell v. Heyward, 96 id. 580. § 290.] LEGISLATIVE DEPARTMENT. 595 During the Civil War there were gross violations of the constitutional rights of northern citizens by the military power under the sanction of the President, when citizens were held to trial by court-martial for what were called acts of disloyalty or rebellion. In Vallandigham’s Case' the prisoner was tried by a mili- tary commission at Cincinnati, Ohio, for an offense declared and defined by a military officer, among other things for the habit of declaring his sympathies with the enemy. For this latter offense and for uttering disloyal sentiments he was arraigned and tried. The prisoner plead to the jurisdiction, and asked to be allowed to call witnesses, which he did. He was convicted and sentenced to close confinement in a prison of the United States, there to be kept during the war. This was confirmed by the commanding general. The President commuted the sentence to an order of banishment beyond the military lines of the United States. The prisoner ap- plied for a certiorari before the Supreme Court of the United States. He claimed the right of trial by jury, and further claimed that the conviction was wrong because the offense charged was not known to the law of the land. The court decided that it had no jurisdiction to issue a certiorari, and therefore denied the writ, and the sentence was enforced. In Milligan's Case” the prisoner was tried by a military Commission and sentenced to death. He was a citizen of the United States, and the alleged crime was committed in Indi- ana. After the war he sued out a writ of habeas corpus before the Supreme Court of the United States, which dis- charged him, five of the judges holding that Congress had no power to subject him to such trial, and four of them, while holding that Congress had such power, decided it had not exercised it by law. The Civil War closed, as far as hostilities were concerned, in 1865. The armies of the South surrendered in the spring and early summer of 1865. The Union was restored. The State of Virginia, whose restored government under Gov- 11 Wall, 243. 24 Wall, 2. 596 CONSTITUTIONAL LAW, [$291. ernor Pierpont was recognized by the government of the United States, took possession of the executive government in Richmond. The Court of Appeals and the Legislature under the Constitution of Virginia assembled and performed their respective duties; but the Supreme Court of the United States, in a number of cases, referred to the question as to When the war should be held to have closed. In The Pro- tector" it was decided that the war began in different States at different dates, and was closed by the different proclamations of the President. In that case it was held that it closed in Virginia and other States, including Alabama, by the proc- lamation of April 2, 1866, and in other States, embracing Texas, as late as August 20, 1866, and that the war had begun in the different States by the two proclamations of President Lincoln in April, 1861. Thus by the power of the President the war was not closed until about a year after hostilities had ceased.” - § 291. In 1867 Congress passed the Reconstruction Acts, by which the government of the State of Virginia, already recognized as the legal government of Virginia by the Fed- eral authorities, with the governments of all the other States, was superseded as not being republican according to the Constitution. Under this sweeping act the seceded States were governed by military officers of the army, and parties were arrested and tried by military commissions. The Supreme Court of Virginia and other courts were suc- ceeded and displaced by judges appointed by military au- thority. Generals Ord and Gilham ordered the arrest for trial under the alleged authority of the Reconstruction Acts of a certain McCardle, on charges of disturbing the public peace, incit- ing to insurrection, libel, and impeding reconstruction. Mc- Cardle sued out a writ of habeas corpus before a Circuit Court of the United States, which adjudged the petitioner to be remanded to the custody of General Gilham, and from that judgment he appealed to the Supreme Court of the United 1 12 Wall, 700, 2 The Protector, 9 Wall. 687. § 292.] LEGISLATIVE DEPARTMENT. 59'ſ States. The Supreme Court affirmed its jurisdiction upon the appeal from the decision of the Circuit Court and refused to dismiss the appeal. The case was held for consideration upon its merits, but by an act passed in March, 1868, Con- gress repealed the former act under which the Supreme Court had asserted jurisdiction in the case on appeal. Upon argu- ment the court decided that its previous jurisdiction on ap- peal in this case had been taken away by the said act of Congress, and thereupon McCardle's case was dismissed for want of jurisdiction, and the decision of the court below operated to remand him to the custody of the military. The validity of the Reconstruction Acts was never passed upon by the Supreme Court in any case, and the result was that the military power was in full force in all the seceding States until the year 1870. The author feels justified in stating that the Reconstruc- tion Acts would never have been sanctioned by the Supreme Court if a case which brought the question before it for adju- dication had arisen. The unlimited military power of the President under those acts subjected the Southern citizen to trial, in time of peace, without a jury, before military commis- sions, and the proclamation that the war had closed in 1866 made the Reconstruction Acts of 1867 unconstitutional. The restoration of the Union made it unconstitutional to charge any citizen of the South with crime or subject him to trial, ex- cept according to due process of law by indictment, present- ment or other criminal proceeding in the civil courts of the country, and by a trial by a jury of his peers before such court." PowRR OvI&R THE SEAT OF GOVERNMENT. § 292. The next clause for consideration is that which gives power to Congress* “To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all 1 Const. U. S., 5th and 6th Amend- * Art. I, sec. 8, clause 17. ments, 598 CONSTITUTIONAL LAW, [$293. places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” It will be noted that the language is that Congress shall exercise exclusive power, not absolute. The limitations upon the power of Congress, express and implied, fully apply. Congress has power, subject to these limitations, to exercise all legislation proper within the District of Columbia. States legislate under their reserved powers exclusively within the States; but the territories ceded under this clause to the United States are subject to the exclusive legislation of Con- gress. It is further to be noted, that while Congress may acquire this territory for governmental purposes and the like, it has no power to exercise exclusive legislation until such territory is acquired as a matter of title to land, and is ceded by the States in which it lies as to all jurisdiction." Congress may buy property, or condemn it for public use, under the fifth amendment of the Constitution, and when acquired for Federal use it is exempt from State taxation. But Congress cannot have exclusive jurisdiction for legis- lation except by cession from the State where the land lies.” In the case referred to in 135 U. S. Reports, the gov- ernment had built a fort within the Territory of Kansas, and held it as being a part of that Territory, subject to its control. After the admission of Kansas into the Union, the question arose whether Congress had jurisdiction to legis- late within the limits of this fort. The Supreme Court de- cided that upon the admission of Kansas the jurisdiction to legislate had passed to the State, and that Congress had never acquired the right to legislate except by the consent of the new State as to this fort so established by Congress prior to its admission. § 293. The nature and extent of this power over the Dis- trict of Columbia may now be considered. The language of the clause is, “over such district as shall be acquired by 1 People v. Godfrey, 17 Johns, 225; * Cherokee Nation v. Southern Fort Leavenworth R. R. Co. v. Kansas Ry. Co., 135 U. S. 641. Towe, 114 U. S. 528, 538. § 293.] I.EGISLATIVE DEPARTMENT. 599 Congress, with the consent of the State, for a ‘seat of govern- ment.” Congress did so acquire the District with the con- sent of the States of Maryland and Virginia." The District is its habitat, its home. Under the next clause of the Constitution Congress has power to pass all laws necessary and proper to carry into effect the powers granted by the seventeenth clause. It therefore has the power to do what is necessary and proper to fit the District as the home of the government of the Union. Its power to do so is exclusive, because all State power over it is surrendered. Hence Congress may do within the District what a State may do for a like purpose within its territory, namely, all things necessary for keep- ing it well fitted for a seat of government. A large part of Washington, its streets, etc., belong to the government. To make the city a suitable home for the government, it may lay out parks, erect buildings for government use, place fitting adornments, statues, pictures, etc., and may further incorporate banks and other institutions by municipal law, as a State may do within its own territory; may establish asylums for its poor, for its blind and deaf, and may estab- lish schools and colleges for the benefit of the people of the District, just as a State may do for the use of its own people. The limitation upon the power of Congress to do this is, that the purposes in view must be necessary and proper for its own use and for that of the people of the District.” Furthermore, as Washington is a seat of government for all the States of the Union, it should be kept for their equal benefit. It is the seat of government to which citizens from all the States may come, and to which the members of Con- gress and the officers of the government are required and entitled to come. For this reason it was a mooted question, and one never decided, but held with great tenacity by many, that their family institutions and servants (slaves in the old time) could be brought by officers, senators and representa- 1 Cohens v. Virginia, 6 Wheat. 264, sioners v. B. & P. R. R. Co., 114 U. S. 424, 453. - * District of Columbia Commis- 600 CONSTITUTIONAL LAW. [$ 294. l tives from their respective States for their use while resid- ing in the District of Columbia. Congress after the formation of the District perpetuated the laws of Virginia and Maryland in the parts respectively ceded by those States. Thus Maryland had before the Dis- trict was formed a law forbidding slaves to be brought into it from any other State. It was held that this inhibition against slaves being brought into Maryland applied to that part of the District, and that a slave was freed by removing from the Virginia to the Maryland part of the District." A citizen of the District is not a citizen of a State within the jurisdictional power of the courts of the United States,” and a citizen of the District loses some of the civil as well as the political capacities which belong to the citizens of the States. The same jurisdictional and exclusive power, where ceded by the States, belongs to Congress over forts, and other places acquired for necessary buildings, etc. THE Co-EFFICIENT Power. § 294. The words used in this clause, that Congress shall have power “to make all laws, which shall be necessary and proper,” etc., have been already so fully explained, as to powers which may be implied as necessary and proper, that they need not be especially referred to here.” Congress shall have power to make all laws which shall be necessary and proper to carry into effect, 1st, “the fore- going powers;” that is, those already enumerated in this ar- , ticle, and especially in this section. It seems proper to call this the co-efficient power, because it is a power which, in conjunction with the enumerated powers, is essential to make them efficient. Like an algebraic co-efficient, it may there- fore be termed a co-efficient power. The laws necessary to collect revenue, to borrow money, to regulate commerce, to 1 Rhodes v. Bell, 2 How. 397. 8 Art. I, Sec. 8, clause 18. * Const. U. S., Art. III, sec. 2; 4 Federalist, No. XXXIII; Cooley Hepburn v. Ellzey, 2 Cr. 445; Bar- on the Constitution, 91, 97, and ante, ney v. Baltimore, 6 Wall. 280. on Canons of Construction. § 294.] LEGISLATIVE DEPARTMENT, 601 establish postoffices, and the like, are passed in the exercise of this co-efficient power, because the power in its abstrac- tion, without some such legislative machinery, would not be effectual. These words apply by fair construction not only to the strictly foregoing powers, but to all the powers wested in Congress, and which may be regarded as the foregoing, be- cause the first clause of the first article vests in Congress all legislative powers “herein granted.” 2d. The co-efficient power to make necessary and proper laws applies to all powers “wested by this Constitution in the government of the United States; ” 3d, “ or in any de- partment; ” 4th, “ or officer thereof; ” that, is of the United States. This makes this co-efficient power very comprehen- sive. This device of legislative machinery for carrying into execution legislative power is not in the same way given to the government of the United States as a government, nor to the judicial or executive department of the United States nor to any officer thereof. These last three divisions have no self-sufficient power. The powers wested in them need co-efficient machinery to carry them into effect, if the Constitution does not give them power by their own action to carry their granted powers into effect. If powers are to be implied, or if action is to be taken by any of them, they must look to the legislative de- partment to devise the methods and machinery by which it is to be done. This view of this clause was taken with great power and clearness by Mr. Webster and Mr. Calhoun sixty years ago in the discussion of the exclusiveness of the legis- lative authority in making efficient the executive power with- out action on the part of the executive; and the decisions of the judiciary department have always maintained that its jurisdiction, the limits upon it, and the mode of exercising it, must be determined by a rigorous construction of the law vesting the jurisdiction, etc., and not upon inferential or im- plied powers of the courts themselves. This makes the gov- ernment not only the government of the Constitution as to the delegation of powers, but a government of laws as to the 602 CONSTITUTIONAL LAW. [$295. means necessary and proper for carrying these powers in the several departments into full execution. Having thus examined with care and fullness the enumer- ated powers of this eighth section, it is proper now to con- sider some other powers vested by the Constitution in Con- gress in other clauses than this particular section. Power To ADMIT NEW STATES. § 295. “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.” A sketch of the condition of things in respect to matters in this section will not be out of place. An immense western domain belonging chiefly to Virginia, but in respect to which there were claims by other States, stretched to the west of the Alleghanies. Virginia, during the Revolution, had, by the genius and valor of George Rogers Clarke and his men, not only secured Kentucky on the south of the Ohio, but planted the flag of Virginia on the British posts in what is now the State of Illinois, and captured the Governor of that region and his command and sent them prisoners to Richmond. Great uneasiness had existed among many of the States after peace at the possession of this immense territory by the Commonwealth of Virginia. Accordingly, in 1784, in accordance with an act passed by her General Assembly October 20, 1783, she conveyed the whole of that territory to the United States, in Congress assembled, upon condition that it was to be laid out into five States. The deed was exe- cuted on March 1, 1784.” During the session of the Federal Convention on the 13th of July, 1787, the Congress of the Con- federation, after debate, adopted an ordinance for the govern- ment of the territory of the United States northwest of the 1 Art. IV, sec. 3, clause 1. 29 Journal of Congress, 47–51. § 295.] LEGISLATIVE DEPARTMENT. 603 river Ohio." It was adopted with but one dissentient, Mr. Yates of New York, and by the unanimous vote of eight States, Vir- ginia being unanimous and included among the eight. In that celebrated ordinance, six articles were inserted to be considered as articles of compact between the original thirteen States and the people of the said territory, to re- main forever unalterable, unless by common consent. In the sixth of these articles was a clause which forbade slavery in said territory, and provided for the surrender of fugitive slaves escaping into the same from any one of the original States. The fifth article provided for forming from said territory not less than three nor more than five States, and the bound- aries of the States were to be fixed by the articles “as soon as Virginia shall alter her act of cession to consent to the same.” And further, the said fifth article provided that any of said States might form a permanent Constitution and State government, provided the Constitution and govern- ment was republican, and “conformed to the principles con- tained in said articles; ” One of which articles so mentioned, the sixth, had a provision prohibiting slavery. Thus it ap- pears that the distinct consent of Virginia, as the grantor in the deed of 1784 to this territory, was requisite, not only to the change of boundaries proposed, but also to the clause prohibiting slavery. & The General Assembly of Virginia, on the 30th of Decem- ber, 1788, reciting that the Congress of the United States had declared the following as one of the articles of compact between the original States and the people of the States of said territory, recited the fifth article, before referred to, and consented to the said article of compact, and rati- fied and confirmed it against anything to the contrary in the original deed of cession; and thus ratified and con- firmed the provision so as to ratify the articles of compact for the admission of such new States, when their govern- ment and Constitution should be republican and in conform- 8ty to the principles contained in these articles; that is, in the 1 12 Journal of Congress, 58–63. 604 CONSTITUTIONAL LAW. [$296. sixth fundamental article in the Ordinance of 1787. History shows that the States represented in the Congress of the Con- federation, at the instance of Mr. Carrington, a prominent Virginia member, put into the Ordinance of 1787 the clause prohibiting slavery, not so much as an act of Congress, but as a fundamental compact between the States who were represented in Congress in respect to the new States to be formed out of the northwestern Virginia territory. In so far as it was an act of Congress it claimed no validity, un- less Virginia, the grantor of the territory, consented. Vir- ginia did in terms consent, and with her own hand put upon the Northwest Territory and the States created out of it the character of free States, in which slavery was never to exist. This transaction not only estops the other States to deny the exclusive and paramount title of Virginia, but estops all others and Virginia to deny that by her own sovereign act as owner of the territory she consented that it should be free territory forever thereafter. It will be found from the learned opinion of Chief Justice Taney in Dred Scott v. San- ford, concurred in by Justices Wayne, Grier, Daniel, Camp- bell and Catron, in all six judges out of nine, that these his- torical views are fully sustained, though it does not bring out the point, so necessary, of Virginia's consent to the prohi- bition clause of the articles, and of her unqualified consent to it as a condition of the change proposed. The act was not an act of Congress under the Articles of Confederation, but an act of the several States, Virginia consenting, to the es- tablishment of this ordinance. § 296. It will be noted that the ordinance was passed dur- ing the sessions of the convention. On the 18th of August, 1787, up to which time no provision in respect to the terri- tory of the United States having yet found a place in the proposed Constitution, Mr. Madison proposed to give Con- gress power “to dispose of the unappropriated lands of the United States,” and “to institute temporary governments for new States arising therein.” This was referred to a com- 19 How, 393. § 297.] LEGISLATIVE DEPARTMENT, 605 mittee, and offered in the report of the Committee of Style on the 12th of September very much in the form finally adopted in the Constitution. At the final adoption of the Constitution, the territory ceded by Virginia belonged as common property to the Confederated States. The grant of power in the clause of the Constitution under consideration was designed, therefore, to empower Congress to dispose of, and make rules and regulations respecting, this territory. The joint beneficial ownership of the States would be held in the hands of Congress, under constitutional grant. The whole language of this article was obviously framed to meet the case of the territory of the United States acquired as aforesaid, and this seems to have been the idea of Congress in the passage of the act of August 7, 1789. The meaning of these clauses may now be considered. The deed of Virginia looking to the sale of these public lands, and also to the formation of new States to be admitted into the Union, and the Ordinance of 1787, point directly to these con- clusions: 1st. That the sale of the lands for revenue purposes, and needful rules and regulations respecting the management thereof, as well as property other than this, should be pro- vided for by Congress. & 2d. That as the territory belongs in terms to the United States, and Congress has the power to dispose of and make rules and regulations concerning it, this power must be di- rected to the interests of the co-owners. 3d. That as Congress is vested only with a trust power to manage said territory for the benefit of the co-owners, all legislation concerning it must be directed to that purpose. Some interesting questions have been raised in our history, and, while practically settled in the affirmative, it is proper to consider the constitutional grounds on which they have been settled. § 297. Can the United States acquire new territory under this Constitution ? The affirmative is sustained by a number of considerations. (a) Each State remaining by itself would have had the 606 CONSTITUTIONAL LAW, [$297. power to acquire by treaty, or conquest or cession. It would seem reasonable, therefore, when all confided their several powers over foreign relations to the Confederated Congress by treaty, war and the like, the implication would be natural that it could acquire by treaty or conquest. The settlement of boundaries would involve this as an incident, even if it was not expressly given. (b) The Congress of the Confederation without any express power did acquire large territory from the States, and the final ratification of the articles by Maryland was conditioned on the cession of her territory by Virginia. (c) The eleventh article provided for the admission of Canada into the Union, and for any other colony, if agreed to by nine States. The Constitution itself by this clause sanctioned the previous power of acquisition, and could not be held to disaffirm the same power to the new government against the treaty-making power so vested in the present government, and without restriction. The power to acquire by treaty was the usual use of the treaty-making power, and without a negation would at least give ground to believe that such was the purpose of its framers. (d) The history of the clause is very instructive upon this point. Mr. Randolph's proposition was that States “law- fully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise,” etc., might be admitted." In Pinckney's plan there was a general power to admit new States into the Union on the same terms with the original States.” Ran- dolph's proposition, after discussion, was not changed, and the admission of new States was limited to those “arising within the limits of the United States.” After further dis- cussion this clause in Randolph's plan retained the previous form.” And Rutledge, from the Committee of Detail, re- ported to the convention the same form for the clause. This article was reported and discussed on August 30th, when various amendments were proposed, several of which were 1 Madison Papers, 734, 3 Id, 1224, 2 Id. 745, § 29 7 ..] LEGISLATIVE DEPARTMENT. 607 directed, as Mr. Madison reports, to saving to Vermont the right of admission, though it was claimed to be a part of New York. Vermont had never been a part of the Con- federation. Mr. Martin then proposed a substitute under which new States might be erected within, as well as with- out, the territory claimed by the several States, or either of them. Mr. Morris's proposition then took this form: “New States may be admitted by the Legislature into the Union; but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the con- sent of the legislature of such State, as well as of the general Regislature.” This was intended to embrace the case of Wer- mont, because she had been already formed into a State; and so it stood." The Committee of Style reported the amended plan, only modified by striking out the word “hereafter ’’ after the words “new States,” as being unnecessary;” and so the clause was finally adopted. It is clear, therefore, that after very earnest debate, the limitation of new members to be admitted to the Union to those framed out of territory within the limits of the United States was stricken out, leav- ing it without limit for the admission of States out of what ever territory remained. (e) The correspondence of that day, and even the debates of the convention, show that the navigation of the Mississippi, which was not within our borders, except “ad medium filum, aqua,” was a matter to which the founders of the Constitu- tion looked with great interest.” It is hardly conceivable that the framers of the Constitution excluded the States from the navigation of the Mississippi, especially as its mouth was in the hands of the enemy. (f) Another question concerned the scope of the power as to the needful rules and disposition which are prescribed in the clause. Territory is not only landed property, but its chief use to the people who own it is as a domain for coloni- zation. This is obvious from the language of the deed of 1 Id, 1460–65. 8 Id, 1446, 1525. 2 Id, 1558. 608 CONSTITUTIONAL LAW. [$ 298. cession by Virginia, and from the purpose to form States of the Union out of such territory. § 298. Again, we have seen that pending the session of the convention, in July, 1787, the Confederation Congress passed the Ordinance of 1787, which showed what was deemed necessary not only in the disposition of the property, but in the organization of the territory for settlement and coloniza- tion. This trust as to the land as property, and as the seat of civilized life, was intended by this clause to be the dis- position and regulation of the territory prescribed in this clause. The view is strengthened by the associated clause as to new States. Congress was to admit new States formed out of this very territory, for which the ordinance had been passed. Congress, as the trustee for the States, may dispose of the property as a common fund for the United States, as provided for in Virginia's deed of cession. But it must do more; it must so rule the territory as a domain for coloniza- tion by all the States, who are co-owners, as to enable them to form civil Bodies-politic, self-sufficient and autonomous, to enter into the Union as free States and co-equal members. Congress could exercise a double power: that of regulating the property and that of aiding the communities who had bought and settled upon it, to organize Bodies-politic for the government of their society. Scattered over this territory, how can the embryo societies organize themselves without the superintending aid of those to whom the territory be- longs? Can any one State do this? That would be to ex- clude the power of others equally entitled. Can all do this as separate distinct States undertaking to do it together ? That is impracticable. Who must do it? The organ, the trustee of the States under the power granted to them by the Constitution. And by the terms of this clause, as the mere property right does not reach the case, then the right and duty of admitting these communities, when completely organized as States, into the Union, makes the duty of Congress to control them by its governmental power an inevitable inference. If this were not done, the temporary § 299.] LEGISLATIVE DEPARTMENT. 609. squatters upon the territory would have to improvise an or- ganization, and regulate the affairs of the territory according to their own will. This course of reasoning has led to a con- clusion which has had the largest judicial sanction. The power of Congress to govern the Territories of the United States, whether or not based on the same course of reasoning in all cases, has been adopted as an undoubted conclusion." This being so, what limitation may be admitted upon the power of Congress in the government of this common terri- tory held by Congress in trust for all the States equally P It belongs to the United States; Congress is a trustee to manage it for these equal partners. § 299. This question was adjudicated upon the fullest con- sideration in the great case of Dred Scott v. Sanford. Con- gress, by the Missouri Compromise Act, enacted that in no part of the territory of the United States acquired by the Louisiana treaty of 1803 should slavery be permitted north of the line of latitude 36° 30'; but that south of that line 1 Green v. Biddle, 8 Wheat. 1; American Ins, Co. v. Canter, 1 Pet. 511; United States v. Gratiot, 14 id. 526; United States v. Rogers, 4 How. 567; Fleming v. Page, 9 id. 603; Cross v. Harrison, 16 id. 164; Dred Scott Case, 19 id. 393; Jack- son v. Steamboat Magnolia, 20 id. 330; Beall v. New Mexico, 16 Wall. 535; Ferris v. Higley, 20 id. 375; National Bank v. County of Yank- ton, 101 U. S. 129; Mormon Church Case, 136 id. 1; Cope v. Cope, 137 id. 683; Report on Polygamy, H. of R. 2568, 49th Cong., 1st Sess. These pages were written in the fall of 1895, and therefore before the burning question of territorial expansion, as involved in the ac- quisition of Cuba, Puerto Rico and the Philippine Islands by the TJnited States, and the questions of citizenship, statehood, etc., inci- dent thereto, had arisen. In addi- tion to those cited by the author, the following authorities confirma- tory of those cited may be con- sulted with interest: Murphy v. Ramsey, 114 U. S. 44; McAllister v. United States, 141 id. 174–188; Thompson v. Utah, 170 id. 346; In re Sah Quah, 31 Fed. Rep. 329; Jones v. United States, 137 U. S. 202; Loughborough v. Blake, 5 Wheat. 317; Reynolds v. United States, 98 U. S. 145; Callan v. Wil- son, 127 id. 540; Ex parte Bollman, 4 Cranch, 75; Shively v. Bowlby, 152 U. S. 48; United States v. Wong Rim Ark, 169 id. 705; Boyd v. Thayer, 143 id. 135; Wong Wing v. United States, 163 id. 228; Ameri- can Publishing Co. v. Fisher, 166 id. 464; Springville v. Thomas, id. 707–IEDITOR. 39 610 CONSTITUTIONAL LAW. [$300. citizens from all the States, without limitation, should be allowed to colonize and settle. The court held that this. French territory was not within the operation of the clause of the Constitution, because not then acquired, and that the peculiar form of the clause under consideration was adapted to the territory which had been acquired from Virginia and the other States; but that where territory was acquired by a treaty of the United States with a foreign power, the trust which devolved upon Congress in the regulation of that ter- ritory was measured by the fact that the territory was ac- quired by the common treasure and enterprise, and perhaps the blood, of the people of all the States; and that it was not competent for Congress to deny to any part of the Union, or to any State in the Union, the equal right of colonization upon such acquired territory. This was the opinion of the court, concurred in by Justices Wayne, Grier, Daniel, Camp- bell and Catron. Justice Nelson concurred in the judgment of the court, but on another ground. The decision went a step further, and held that Congress could not confer upon the Territories, and that the settlers in the Territories could not assume for themselves, the power to do what the court decided Congress had no power to do. It may be well to add that the power to dispose of territory has been consid- ered, and perhaps fairly, broad enough to justify grants to any States for their public buildings, colleges and schools. These consist with the trust confided to Congress, because they sustain the communities in which all the States are in- terested, and for which Congress is trustee; but the words do not include the power of Congress to grant lands for per- sonal or corporate benefit. NEw STATES; OF WHAT ConstituTED, AND How ADMITTED. § 300. What has already been said will leave little to be added under this head. The first question is: Can a State not formed of territory originally within the limits of the Union be admitted? We have seen that the territory may be acquired and the State § 300.] LEGISLATIVE DEPARTMENT. 611 be formed out of it; but can an independent State already formed be admitted into the Union? The answer is clear. (a) The terms are unrestricted. What right have we to restrict them by interpretation? (b) The Confederation provided for the admission of Can- ada and other colonies. Why presume less power under the more extended terms of the Constitution? (6) We have seen that the first draft limited the States to be admitted to existing territory, but was advisedly changed. (d) The case of Vermont is very interesting. It was a State free, sovereign and independent during the whole Rev- olution. Its territory was claimed by New York and New |Hampshire, but it asserted its independence of any. The Constitution provides: “But no new State shall be formed or erected within the jurisdiction of any other State without the consent of the legislatures of the States con- cerned, as well as of the Congress.” Had Vermont been held to be a part of New York, she could not have been ad- mitted without the consent of New York. But it will be seen, by reference to the debate in the convention," that the purpose was to admit Vermont on its own motion without the consent of New York, and as no part of that State. If it was no part of New York, then it was a free and inde- pendent State, and not included in the territory within the limits of any of the States. Vermont was therefore admit- ted into the Union as a free, sovereign and independent State, and not as formed out of any other State. As the framers of the Constitution provided for such action, it is obviously intended to allow new States not formed out of the territory within the limits of the United States to be ad- mitted into the Union. Vermont, therefore, is a clear prece- dent for the admission of Texas, which had established its independence, and was admitted into the Union, though not formed out of the territory belonging to any State in the Union. These views led to the acquisition of the Louisiana territory and of the Mexican territory, and to the admission of Vermont and Texas as independent commonwealths. 1 Madison Papers, 1459–63. 612 CONSTITUTIONAL LAW, [$300. Again the question arises: Is a new State so admitted dif- ferent in its relations to the Union from the other States ? IIere also the answer is clear. & (a) The Ordinance of 1787 and the cession of Virginia provided that new States to be created should be the same in all respects as those previously existing, and the Constitu- tion sanctioned and acted upon that ordinance. (b) Each new State came into the Union as a co-pactor with the others and as a co-delegator of powers to the United States under the Constitution. The tenth amendment has as pertinent application to the last State, Utah, as to Virginia. (c) This was settled by judicial decisions before and since the civil war." Another point to be noted is the inviolable integrity of a State as to its own territory. Its consent is absolutely nec- essary in order to its partition or the merger of itself with any other. New States are too apt to feel that they have been protegés of the government of the United States, and that they stand in a less independent relation to the Fed- eral government than the older States. This is natural, but is a very erroneous view. They emerge from the wardship to which they have been subject, and enter the Union by which they become subject to the Constitution of the Union, just as the other States and their people. Such a feeling has been induced in many cases by the fact of the passage of an enabling act by Congress prior to the meeting of the conven- tion of the new State, at which a Constitution is adopted and application for admission into the Union is made. But it is interesting to note as a fact that the States of Arkansas, Michigan, Minnesota, Oregon, Idaho and Wyoming were 1 Before the war: Permoli v. New Orleans, 3 How. 589; Benner v. Por- ter, 9 id. 235; Atkinson v. Cum- mins, id. 479; McNulty v. Batty, 10 id. 72; Doe v. Beebe, 13 id. 25; Cross v. Harrison, 16 id. 164; Withers v. Buckley, 20 id. 84. Aſter the war: Texas v. White, 7 Wall. 700; Web- ber v. Harbor Com’rs, 18 id. 57; TJnited States v. Fox, 94 U. S. 315; Pound v. Turck, 95 id. 459; Huse v. Glover, 119 id. 543; Cardwell v. American Bridge Co., 113 id. 205; St. Louis v. Myers, id. 566; Sands v. Manistee River Mfg. Co., 123 id. 288; Willamette Iron Bridge Co. v. Hatch, 125 id, 1. § 301.] LEGISLATIVE DEPARTMENT, 613 admitted under an act of a convention of each of them with- out an enabling act by Congress. The Territories have usually been governed by an act to establish and organize a government. This has been done in the case of many of them separately, and in the Compro- mise of 1850 and of the Kansas-Nebraska act of 1853–54, general provisions were made which affected the government of each of the Territories. The usual form of government included the three departments; the Governor, judges, and other leading officers being appointed by the President with the advice of the Senate, and the powers of legislation being vested in the suffragans of the territory prescribed by the organic act. As the infant State matured, developed and in- creased in population, the usual plan was to authorize its leg- islature to calla convention of the people of the territory, who should adopt a constitution as preliminary to admission into the Union. As Congress by the fourth section of the fourth article of the Constitution was required to guarantee to every State a republican form of government, and as the readiness to assume the position of a State in the Union on the part of the people of the territory usually makes it the duty of Congress to admit such State into the Union, only predicating that its Constitution shall be republican in form, the usual mode has been that when the young State has adopted its Constitution, its authorities should apply for admission into the Union, whereupon Congress, upon inspection and finding it to be re- publican in form, passes the necessary act for that purpose. As already stated, this more formal method has not been uniformly adopted by the peoples of the Territories, but in many cases, having adopted a Constitution in a manner ac- ceptable to themselves, they have been recognized as Organ- ized States, and admitted into the Union without difficulty. § 301. The question has arisen whether Congress can, upon any other ground than lack of a republican form of govern- ment, refuse admission to a State formed out of territory of the United States. That it may do so practically is undoubted; but can it be justified in keeping a territory without representation and sub- 614 CONSTITUTIONAL LAW. [$301. ject to the authority of the government, unless upon grounds which the Constitution makes an objection to its admission ? We have seen that the decisions have been uniform that a State admitted into the Union stands in its relations to the government of the Union in no respect different from those which obtain between the old and original States. The au- thorities are conclusive upon this point. But another phase of the question has arisen. Can Congress refuse admission to a State on a ground not in the Constitu- tion, or admit a State upon conditions which will deny it pow- ers, privileges or rights which by reservation are secured to the old States of the Union under the Constitution ? Can Con- gress impose such a condition upon a new State as will abridge its powers if it enters the Union upon such condition? It would seem that such a proposition is utterly untenable. The States have confided to the Congress as their agent the ad- mission of a State into the Union under the Constitution. Can this constitutional authority in Congress be construed to vest Congress as an agent with power to impose other conditions upon the new member which the Constitution had not pre- scribed; and if so, does the new State enter the Union shorn of its power pro tanto by the agent authorized to open its doors to the new commonwealth without any such condition? And is the State any the less a State than its sisters in conse- quence of Congress having divested it of those qualities en- joyed by the other members of the Union? This would make the Union one of unequal members—unequal in the essential qualities which constitute the States of the Union. Judge Story' discusses fully the historic Missouri restriction. Congress proposed that Missouri, as a condition of her ad- mission to the Union, should prohibit slavery, and the learned author says the final result of the vote admitting the State “seems to establish the rightful authority of Congress to im- pose such a restriction.” This opinion of Judge Story was afterwards reversed by the Supreme Court in Dred Scott v. Sanford, supra. Whether this restrictive clause was consti- tutional may be thus tested. It would be conceded by the 1 Story on the Constitution, 1315. § 301.] LEGISLATIVE DEPARTMENT, 615 learned author that Congress at that time could not abolish slavery in Missouri. Could he maintain that after the State was admitted, with the restriction imposed, Congress could enforce its restriction by abolishing slavery in Missouri P. If such an act by Congress would invade the reserved rights of the State of Missouri, as it would unquestionably have in- Vaded that of Virginia, how could Congress have obtained the power to enforce that restriction by the abolition of slavery in Missouri as a granted power under the Constitu- tion of the United States? The better opinion would clearly be that Congress could not impose as an obligation upon a State at the time of its admission into the Union such a re- striction as it had no original power to exact or enforce. In the absence of such power, to use the power to admit or ex- clude as the means of enforcing an unconstitutional power would scarcely find an advocate. Judge Cooley' has mentioned a number of instances of these conditions attached to acts for the admission of States. These were chiefly made since the civil war, and were ef- forts to condition the admission of the senators and repre- sentatives from the seceded States into the halls of Congress to which they were legally elected, upon the submission by those States to political conditions which did not apply to the Northern States. This took a step in advance of admitting a State to the Union upon conditions. For States already in the Union it imposed the condition of a new Constitution to them, and their submission to it, as the only ground upon which they would be admitted to representation in a gov- ernment of which they were an integral part. This was also done as to the State of Nebraska, just then admitted into the Union. Of course it is undeniable that each State enters the Union subject to the conditions which are in- volved in the provisions of the Federal Constitution, but to none other. Therefore Judge Cooley, with cautious moder- ation, expresses a doubt about the validity of all these Com- gressional efforts at putting the States of the Union into a Union upon a different Constitution. 1 Cooley's Constitutional Law, pp. 174–77. 2 616 CONSTITUTIONAL LAW. [$$ 302, 303. § 302. A clause is found in the section under consider- ation in these words: “And nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.” This clause has ceased to be of any consequence, as the claims referred to have been long since settled. It had reference to certain vacant lands claimed by the United States as ceded to them by the treaty of peace with Great Britain." Mr. Madison briefly refers to this in the Federalist.” Whatever the claims were, they ap- pear to have been adjusted, and have left nothing for the clause to operate upon. POWER TO PUNISH TREASON. § 303. It will be proper in considering this clause” to pref- ace its discussion by a consideration of the English law of treason. In the early history of England the crime of trea- son was very indefinite in its limitations. “If the crime of treason be indeterminate,” says Montesquieu, “this alone is sufficient to make any government degenerate into arbi- trary power.” In early times great latitude was left to the judges to determine what was treason or what not, whereby these tools of tyrannical princes had opportunity to create an abundance of constructive treasons. To prevent the evils of these constructive treasons, the act of 24 Edward III., chap- ter 2, was passed defining the crime of treason. That statute provided that “When a man doth compass or imagine the death of Our Lord the King,” etc., which was the first branch of the definition; the second related to assaults upon the chastity of the king's wife, or the king's eldest unmarried daughter, or the wife of the king's eldest son and heir. These we need not notice, as they have no analogy to our system. The third species of treason was, “If a man do levy war against our lord the King, in his realm.” And the fourth was, “If a man by adhering to the King's enemies in his realm, giving them aid and comfort in the realm or elsewhere.” 1 Madison Papers, 1463–66. 4 Spirit of Laws, book 12, ch, 7. 2 No. XLII. 59 State Trials, 3 Const. U. S., Art, III, sec. 3. § 303.] LEGISLATIVE DEPARTMENT, 617 This statute placed a great check on the courts in the abuses which had arisen in trials for treason. In the trial of Alger- non Sydney, the illustrious prisoner was convicted upon the evidence of papers found in his closet, which were really merely expressions of speculative opinions. Blackstone, Stephen concurring, says the king “here intended is the king in person, without any respect to his title.” For it is held that a king de facto and not de jure, or, in other words, a usurper that had got possession of the throne, was king within the meaning of the statute, as there was a temporary allegiance due to him for his administration of the govern- ment and the security and protection of property. Treasons committed against Henry VI. were punished under Edward IV., though the line of Lancaster had been declared usurpers by act of Parliament; and the most rightful heir of the crown, who had never had plenary possession of the throne, was not a king, within the statute, against whom treason could be committed. The statute of 1 Henry VIII., chapter 1, which was declar- atory of the common law, pronounced all subjects excused from any penalty or forfeiture who had obeyed a king de facto. This was the opinion of Hawkins, but the true dis- tinction, according to Blackstone, seems to be that the stat- ute of Henry did not commend but excused the obedience paid to the king de facto in opposition to the king de jure; and this for the reason stated, that the subject is an imper- fect judge of the title, and can only decide upon the de facto possession of power and not upon the de jure title," which was the English law at the time the Federal Convention sat. In Pinckney's plan” a provision was inserted on the sub- ject of treason, which, upon reference to the Committee of Detail, was reported by that committee in this form: Trea- son against the United States “shall consist only in levying war against the United States, or any of them, or in adher- ing to their enemies.” This definition of treason was the subject of earnest debate on the 20th of August.” This 1 Stephen's Blackstone, 234–36. 3 Id, 1370–77, 2 Madison Papers, 741. 618 CONSTITUTIONAL LAW. [$ 304. clause was first changed by striking out the words, “ or any of them,” after the words “United States.” This was agreed to mem. con. This defined treason as a crime against the United States, leaving to the States the definition of the crime against themselves respectively. Upon the idea that the Constitution had only to provide for treason against the United States, the words “against the United States” were reinstated after the word “treason.” The Word “Or '' was substituted for “and” before “adhering to the enemies,” and the words “giving aid and comfort” after the word “adhering,” because found in the act of Edward III. Except in immaterial particulars the clause as finally adopted followed, as Mr. Mason said, the statute of Edward III. The purpose of the act of 24 Edward III., we have seen, was to put a check upon constructive treasons by an exact definition of the crime, and that this was the purpose of the Constitution appears from the debate already referred to, and from the language of Mr. Madison in No. 43 of the Pederalist, quoted with emphatic approval by Judge Story." The language of the Federalist thus sanctioned was that “New-fangled and artificial treasons have been the great engines by which violent factions . . . have usually wreaked their alternate malignity on each other.” And the “Convention,” says Judge Story,” “deemed it necessary to interpose an impassable barrier against arbitrary construc- tions, either by the courts or by Congress, upon the crime of treason. . . . In so doing they have adopted the very words of the statute of treason of Edward III.; and thus by implication, in order to cut off at Once all chances of ar- bitrary constructions, they have recognized the well-settled interpretation of these phrases in the interpretation of crim- inal law which has prevailed for ages.” § 304. A brief analysis of the clause will now be made. (a) It defines only treason against the United States. Treason against a State is left to its own definition; and 1 Story on the Constitution, 1791- 3In accord: Blackstone's Com- 1793. mentaries, 81–84; Cooley on the 2 Id. 1799. Constitution, 287–88. § 304.] I.EGISLATIVE DEPARTMENT. 619 lest any should doubt whether this was intended, a reference to the subsequent clauses will remove it. Article IV, sec- tion 2, clause 2, provides: “A person charged in any State with treason, felony or other crime, who shall flee from jus- tice, and be found in another State,” shall be surrendered as a fugitive from justice and “be removed to the State having jurisdiction of the crime.” This clearly refers to a treason against a State, of which it alone could have jurisdiction. (b) The treason referred to is against the United States, as “united under this Constitution.” (c) It consists of either of two offenses: levying war against them, or adhering to their enemies, giving them aid and com- fort. Either of these could constitute the offense. It is levying war. A mere conspiracy by force to subvert the established government is not treason, but there must be an actual levying of war. The only cases calling for the inter- pretation of this clause which have come before the Supreme Court have been Eeparte Bollman" and United States v. Burr.” In the first case the Chief Justice said, to constitute this crime, “War must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the act of levying war can- not have been committed.” Again he says: “It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his coun- try. On the contrary, if war be actually levied, that is, if a. body of men be actually assembled for the purpose of effect- ing by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspir- acy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to con- stitute a levying of war.” 1 4 Cr. 126. 2 Id, 469. 620 CONSTITUTIONAL LAW. [$ 304. What is “adhering to their enemies, giving them aid and COmfort, P” Both branches of this part of the definition were in the act of Edward III., and both were inserted in the Constitu- tion in order to make the crime more definite, mere adher- ence not being enough, unless the adherence gave aid and comfort to the enemy. Such aid and comfort are given When the accused furnishes supplies to the enemy, gives them information, and the like.” “By enemies are to be under- stood the subjects of foreign powers with whom we are at open war, and does not apply to rebels; for a rebel is not an enemy within the meaning of this statute.” In United States v. Prior” it was held that coming peaceably from an enemy's ship to procure provisions for him was not treason. (d) No person shall be convicted of treason “unless on the testimony of two witnesses to the same overt act, or on confession in open court.” This provision was drafted from British jurisprudence. Confessions of the accused may be ground for a conviction, but these must be strictly guarded. If taken by private persons and reported by them, it is a most suspicious form of testimony, because liable to be ob- tained by artful promises or menaces, and to be reported without accuracy, and incapable of being discovered or cor- rected by negative evidence.* Therefore a confession to convict a man must be in open court, where, with no extra- neous influences of fear or hope, he may confess with no possibility of misrepresentation.” If the accused does not make confession in open court, then he can only be con- victed on the testimony of two witnesses, not to distinct and independent circumstances which in their concurrence might prove guilt, but two witnesses, each of whom shall support the other as to the same overt or open act of treason, and 14 Blackstone's Commentaries, ions, 98, citing United States V. 276. Chenoweth, 1 West. L. Mo. 165. 21 Stephen's Blackstone, 242; Fos- 83 Wash. C. C. 234. ter, 216, 219; Hawk, P. C., Book 1, 4 Story's Commentaries, 1796; 4 ch. 17. Sec. 28. Accord: Mr. Dana for Backstone's Commentaries, 356–57. the United States, Chase's Decis- 5 Wharton’s State Trials, 634. § 305.] I.EGISLATIVE DEPARTMENT. 621 these witnesses must be credible." The discussion of these parts of the clause by Chief Justice Marshall is worthy of diligent study. § 305. The second clause of this section provides for the power of Congress in respect to the offense. The definition of the crime is constitutional. Congress cannot touch or change it. The mode of conviction is fixed by the Consti- tution; over this Congress has no power. The Constitution intended to place these points beyond the reach of legisla- tive power. The mode of indictment is fixed by the fifth article of the amendment, and is beyond the reach of the power of Congress. The mode of trial, the place, and the rights of the prisoner on trial, in respect to information as to the accusation, to be confronted with the witnesses against him, to compulsory process for his own witnesses, and to the assistance of counsel, are fixed beyond legisla- tive control by article VI of the amendments, and by article III, section 2, clause 3, of the Constitution. What, then, can Congress do in respect to this crime of treason 2 That is provided for by the succeeding clause. “The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corrup- tion of blood, or forfeiture, except during the life of the per- son attainted.” - This gives to Congress only the power to declare the pun- ishment for treason. But in this it is precisely and strictly limited, so that no conviction of treason shall work corruption of blood—that is, obstruct inheritance; “ or of forfeiture” — that is, of an estate except during the life of the person at- tainted. Thus a person may be punished for treason, but the consequence of it shall not affect the inheritable quality of his blood, or forfeit his property except during his life. This, as we shall see, is a radical change from the English law. This last provision limits forfeiture to the life of the person at- tainted, and was adopted in England by the statute of 3 and 4 Edward IV., chapter 106. This view of this important clause has very striking reference to what has been said 1 Ex parte Bollman; United States v. Burr, supra. 622 CONSTITUTIONAL LA W. [$ 305. supra as to the proceeding for confiscation of the property of southern citizens jure belli, and under the act of July 17, 1862, in connection with the joint resolution suggested by President Lincoln limiting the judgment of forfeiture in such ew parte proceedings to the life of the offender. It is not im- proper to suggest that in respect to that important branch of this clause of the Constitution there was no provision which protected against the forfeiture which by the Consti- tution could result only from conviction, but a provision which would have prevented conviction until there was an indictment, trial by jury and conviction upon the testimony, as provided in this clause. In the case of the act for seizing the captured and aban- doned property of southern citizens, the allegation of dis- loyalty, without proof or trial, or conviction, was directly contrary to the spirit and letter of this clause of the Consti- tution. How the property could be forfeited in toto, without any of these, is a question difficult of solution, in view of the monitory language of the Federalist and of the eminent Judge Story, holding that this clause was intended to ob- struct the invention of constructive treasons by the courts or by Congress. Cases already referred to are pertinent at this point as to the effect of the forfeiture of the estate of an offender for his life only, and as to the effect of such forfeiture upon the remainder in fee, which this clause clearly shows to be ex- empt from forfeiture, and should pass to the heirs. In a number of cases this question was discussed by the Supreme Court. In a late case, Railroad Co. v. Bosworth,” the ques- tion was discussed with great acuteness by Mr. Justice Brad- ley, delivering the unanimous opinion of the court. He said, speaking of the act of July 17, 1862,” and the joint resolution passed contemporaneously, limiting the confiscation to the life estate of the offender: “It would seem to follow as a 1 Bigelow v. Forrest, 9 Wall. 339, Wade, 102 id. 133; Shields v. Schiff, Day v. Micou, 18 id. 156; Wallach 124 id. 351. v. Van Riswick, 92 U. S. 202; Pike 2 133 U. S. 92. v. Wassall, 94 id. 711; French v. 312 Statutes at Large, 589. § 305.] LEGISLATIVE DEPARTMENT. 623 logical consequence from the decision in Avegno v. Schmidt (113 U. S. 293), and Shields v. Schiff (supra), that after the confiscation of the property the naked fee (or the naked ownership, as denominated in the civil law), subject, for the life-time of the offender, to the interest or usufruct of the purchaser at the confiscation sale, remained in the offender himself; otherwise how could his heirs take it from him by inheritance? But by reason of his disability to dispose of or touch it, or affect it in any manner whatsoever, it re- mained as before stated, a mere dead estate, or in a condi- tion of suspended animation. We think that this is, on the whole, the most reasonable view. “There is no corruption of blood; the offender can trans- mit by descent; his heirs take from him by descent. Why, then, is it not most rational to conclude that the dormant and suspended fee has continued in him P “Now, if the disabilities which prevented such person from exercising any power over this suspended fee, or naked property, be removed by a pardon or amnesty—so removed as to restore him to all his rights, privileges and immunities, as if he had never offended, except as to those things which have become wested in other persons,—why does it not restore him to the control of his property so far as the same has never been forfeited, or has never become wested in another person? In our judgment it does restore him to such control.” The subsequent cases of Jenkins v. Collard' and United States v. Dunnington,” sanction the decision in Bosworth’s Case. The result, therefore, is this: On a conviction of trea- son and on a confiscation proceeding under the above act the result is the same; that is, 1st, the forfeiture of the life estate of the offender, and its absolute alienation from his control by a sale under the procedure; 2d, the estate in remainder re- mains in him, but is in a condition of suspended animation, in which he is absolutely disabled from all power of alienation thereof, but with the estate in him in Such condition as to descend from him to his heirs at law; and this because the 1145 U. S. 546. 2146 U. S. 338. 624. CONSTITUTIONAL LAW. [$ 306. Constitution provides there shall be no corruption of blood; 3d, that upon his death the estate in remainder passes from him by descent to his heirs at law; 4th, but as the estate is in him with no power of alienation while living by reason of his attainder of treason, a pardon during his life re-vests him with the jus disponendº attached to his title in remainder, and therefore, if after pardon he disposes of the fee, such disposition binds his heirs, and even if before pardon he dis- poses of it with covenants of seisin and warranty against all persons whatsoever, such alienation will bind his heirs." Power OVER PUBLIC ACTs, RECORDs, ETC. § 306. Among the prime objects of the more perfect union among the States was to establish such relations between the citizens of the several States as would bring them into closer contact as regards business, commerce, intercourse and the like; the Constitution reserving to each State the local authority to manage its own internal polity according to its exclusive will. We have seen how much was sought to be accomplished by the powers given to Congress as to a com- mon revenue, regulation of commerce with foreign nations and interstate, a common postal system, and army and mavy for the common defense, uniform regulations for naturaliza- tion, coinage laws, and the like. The framers looked further to such regulations and relations between the citizens of the different States, and such relations of compact between the States as to the business of the people, as would make them one instead of many as to these important subjects. The first of these to which attention will be called” was in reference to the use that in each State it might be desired to make of the public acts, records and judicial proceedings of the several States, how these should be proved, and what should be the effect of them when proved in the States other than that in which they originated. The States agreed to 1 See also United States v. Klein, 2 Const. U. S., Art. IV, Sec. 1. 13 Wall, 128; Jenkins v. Collard, 145 U. S. 546, supra. § 306.] LEGISLATIVE DEPARTMENT. 625 facilitate all these matters in order to the easy transaction of business. In the fourth article of the Confederation it was provided that “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State.” It is obvious that this rested solely on compact, Without any provision for making it effectual, independent of the will of each State. Accordingly in the convention Mr. Pinckney proposed an article very similar to the clause just referred to." In the report of the Committee of Detail it was substantially reported in the same form.” Subsequently in the convention it was proposed to provide for the execu- tion of judgments of one State in another under regulations by Congress. Objection was made to this, and the matter was referred.” The committee reported a clause,” which was enlarged so as to allow the Legislature, by general laws, to “prescribe the manner in which such acts, records and proceedings shall be proved, and the effect which judgments obtained in one State shall have in another;” and then the clause was adopted substantially as it now appears. This removed the embar- raSSment which exists between different countries as to the effect of such public acts and judgments, giving no force except a prima facie one at most to any judgment of a for- eign country when sued on here; leaving the defendant the right of every defense he had to the original cause of action, and is a pledge of each State that the judicial proceedings and other public acts of a sister State should be conclusive of any proceedings thereon in the State where it was in- stituted. The clause as finally adopted was in these words: “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” | Madison Papers, 745, 3 Id. 1448. 2 Id. 1240. t 4 Id, 1479. 4ſ) 626 CONSTITUTIONAL LAW. [$ 306. The debates referred to clearly show that the words “the effect thereof.” meant the effect of the acts, records and pro- ceedings, and not the effect of the proof, and the decisions of the courts to this effect have been uniform. The full faith and credit provided for means the same to which they are entitled in the State whose they are. When, therefore, suit is brought in one State upon a judgment en- tered by the court of another State, and it appears that the law of the State in which it was entered made it conclusive On the defendant, it will be held equally conclusive in the court where suit is brought upon it. No plea will be good against such judgment which would not be good in the court where it was pronounced; but in the State where the suit is brought upon the judgment, as in the State where the judgment is pronounced, it may be shown that the court of the latter had no jurisdiction to enter it. So a release may be pleaded, and the statute of limitations will be available according to the law of the forum where the suit upon it is brought. But the latter State must allow reasonable oppor- tunity to enforce the demand, and not by its act of limita- tion substantially deny all remedy. The cases on this sub- ject are numerous." But while constructive service of process by publication will suffice to subject property within the jurisdiction of the court, such service cannot be the foundation of a personal judgment. A personal judgment can only arise from pro- cess against the defendant served in the State where the judgment is pronounced; and, a fortiori, is not binding in any other State. The latter gives full faith and credit to such judgment in the former by denying it the effect of a personal judgment which it cannot have in the former. Later cases are in accord with those already cited.” 1 Mills v. Duryee, 7 Cr. 481; Na- tions v. Johnson, 24 FIow. 195; Hampton v. McConnel, 3 Wheat. 234; Green v. Van Buskirk, 7 Wall 139; Harris v. Hardeman, 14 How. 334; Cheever v. Wilson, 9 Wall. 108; Galpin v. Page, 18 id. 350; Thomp- son v. Whitman, id. 457; Christmas V. Russell, 5 id. 290. 2 Renaud v. Abbott, 116 U.S. 277; Chicago, etc. Ry. Co. v. Wiggins Ferry Co., 119 id. 615; Blount v. § 307.] LEGISLATIVE DEPARTMENT. 62'ſ The court may inquire into the jurisdiction of the court rendering the original judgment, and into the facts neces- sary to give such jurisdiction. Congress has passed a law carrying out the provisions of this clause, and it has been decided that the States may make other regulations not in conflict with these, and allow proof of records in common- law modes." PRIVILEGES AND IMMUNITIES OF CITIZENs. § 307. “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” This important clause has already been largely considered. It has been seen that the provisions of the thirty-third Arti- cle of the Confederation have been embraced in the con- densed terms of this article. Construing it in the light of the authoritative exposition of Mr. Madison in the Fed- eralist, Supra, Sanctioned by the decision of the Supreme Court in the Slaughter-House Cases, this clause may be re- garded as a mutual guaranty by the States of intercom- munication of privileges and immunities of citizenship in each of them, and is a constitutional guaranty independent of any power of Congress to pass laws to execute or regulate it. The prior section just considered is based upon inter- state compact, with a power in Congress to pass laws to aid in giving it effect; but this is stripped of all power, Federal or State, to impair the right given thereby. A brief analy- sis of the clause will now be attempted. In Corfield v. Coryellº Justice Washington gives an expo- sition of this clause, which has been adopted as sound in a number of cases to be referred to, and especially in the Slaughter-House Cases, supra. He says the privileges and immunities of citizens may be comprehended under the fol- lowing general heads: “Protection by the government; the Walker, 134 id. 607; Texas Pacific 1 Gaines v. Relf, 12 How, 472; Ry. Co. v. Southern Pacific Ry. Co., White v. Burnley, 20 id. 235. 137 id. 48; Carpenter v. Strange, * Const. U. S., Art. IV, Sec. 2. 141 id. 87; Laing v. Rigney, 160 id. 34 Wash. C. C. 371. 531. 628 CONSTITUTIONAL LAW. [$ 307. enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain hap- piness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for the purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an ex- emption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental.” “According to the express words and clear meaning of the clause, no privileges are secured by it but those which pertain to citizenship.” “These are civil rights, not political franchises. Hence, voting, holding office, serving on juries, and the like, are political, not civil, privileges.” A corporation of one State is not a citizen of another within the meaning of this clause. A State may deny to the corporation the privileges accorded to a like corporation of its own.” No lawyer admitted to practice in one State has the right under this clause to practice in every other. That is not a privilege of citizenship, but belongs to the in- ternal polity of a State.” Louisiana gave certain rights of property by virtue of marriage to its own resident citizens. This did not entitle the citizen of Mississippi to the same privileges.” A State may give exclusive privileges to its people to take 1 Conner v. Elliott, 18 How. 591; 4 Ward v. Maryland, 12 Wall, 418; Blake et al. v. McClung et al., 172 Chemung Canal Bank v. Lowery, TJ. S. 239. 93 U. S. 72; Hooper v. California, * Slaughter-House Cases, 16 Wall, 155 U. S. 648. 36. 5 Conner v. Elliott, 18 EIow. 594, 3 Paul v. Virginia, 8 Wall, 165, § 308.] LEGISLATIVE DEPARTMENT. 629 fish in its own waters, and exclude citizens of other States. Its fisheries are its own property; it may give them to its own children and exclude others.' We have seen that taxa- tion of a citizen of another State at a higher rate than its Own citizen is a violation of this clause.” § 308. Two other clauses in this connection may be con- sidered. It is well known as a principle of international law that extradition for crime is dependent on contractual obligation. It is not de jure, but contractual, or a matter of comity. This was more distinctly so a century ago than now, and was more so then than now as to the extradition of persons held to service or labor, their extradition being merely a matter of comity. In the fourth Article of Confederation the extradition of criminals was provided for, and the provision of the present Constitution is in almost the same terms; but no provision for the extradition of slaves was incorporated in the Articles of Confederation. The language of the provision was as fol- lows: “If any person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from Justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.” “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” We may note that the person to be surrendered must be charged in the demandant State with treason, felony or other crime, and must flee from justice and be found in another State. In such case the interstate compact declares he shall, 1 McCrady v. Virginia, 94 U. S. 2 Ward v. Maryland, 12 Wall. 418; 391; Manchester v. Massachusetts, Guy v. Baltimore, 100 U. S. 434. 139 id, 241. 3 Const. U. S., Art. IV, sec. 2 clause 3. 630 CONSTITUTIONA L LAW. [$ 308. on the demand of the executive of the demandant State, be delivered up by the asylum State to be removed to the de- mandant State, having jurisdiction of the crime. In the case of Kentucky v. Dennison, the Governor of Ohio refused to surrender a fugitive from Kentucky who was charged in Kentucky with kidnaping a slave. The point was made by the Governor of Ohio that that was not a crime according to the law of Ohio. The same point was made by Governor Seward in 1841, and the extradition of the kid- naper of a slave was distinctly denied. The Supreme Court in the Kentucky and Ohio case held it to be a case over which the court had no jurisdiction, and with which Congress had nothing to do. It depended upon interstate faith, and the claim of Kentucky was dismissed by that court, as the claim of Virginia had been denied by Governor Seward.” The act of 1793 was held to be only declaratory, and that the United States had no power to compel the extradition. Congress has passed a later law on the subject.” It has been held that the charge against the accused must be in such judicial form as would justify an arrest were it committed in the demand- ant State.” When the demand is made in due form, it is the duty of the executive of the asylum State to surrender the accused, and he has no moral right to refuse.” If he does refuse, the Federal courts have no power to compel obedience." The person surrendered should be held privileged from prosecu- tion on any new charge, until he has had opportunity to re- turn to the State which has surrendered him. It was so decided in Commonwealth v. Hawes," with which United States v. Rauscher” is in accord. But the Supreme Court, in Las- celles v. Georgia,” held that the accused was entitled to no 124 How, 66. 4 People v. Brady, 56 N. Y. 182; *See also Holmes v. Jennison, 14 Kingsbury's Case, 106 Mass, 223. Pet. 540; Taylor v. Taintor, 16 Wall. 5 Kentucky v. Dennison, Supra. 366; Ex parte Reggel, 114 U. S. 642; 6 Taylor v. Taintor, 16 Wall, 366. Roberts v. Reilley, 116 id. 80, 713 Bush, 697. 8R. S. U. S., §§ 5278–79, 8 119 U. S. 407. 9 148 U. S. 537. § 309.] LEGISLATIVE DEPARTMENT, 631 such exemption; that the terms of the Constitution did not confine the jurisdiction of the demandant State over the fugi- tive to trial for the specific crime for which he was surren- dered. But if the asylum State has an unsatisfied demand upon the fugitive, it has a right to satisfy the demand of its own law before surrendering him." In the case of Pierce v. Fries,” Pierce, on a requisition of the Governor of Alabama, was arrested in Texas, and sought discharge upon the writ of habeas corpus, on the ground of the invalidity of the indictment under the laws of Alabama. The Supreme Court affirmed the decision of the court of Texas, that, the other prerequisites for extradition having been complied with, he should be extradited, leaving to the courts of Alabama to decide upon the sufficiency of the in- dictment. This not only conformed to the clause of the Constitution in reference to extradition, but gave full faith and credit to the action of the courts of Alabama according to the previous clause already considered. § 309. The next clause” concerns the surrender of fugitives held to service or labor in one State and escaping into an- other. This was inserted in the Constitution, no similar clause having been in the Articles of Confederation, as a part of that general compromise to which reference has been made ante, involving the commerce power and the ratio of representation in the two Houses, the slave trade, and the exemption of exports from taxation or duty. The terms de- scriptive of the character of the fugitives are broad enough to include the main class of fugitive slaves as well as per- Sons bound as apprentices, etc., under the laws of a State. It will be perceived that the extradition of fugitives from justice is on demand of the executive authority of the de- manding State. The claim for the surrender of the fugitive from service or labor is made by the party to whom it may be due. The clause does not state on whom the demand or claim shall be made. In this demand of executive upon ex- ecutive the Supreme Court has held, as we have seen, that 1 Taylor v. Taintor, 16 Wall, 366. * Art, IV, sec. 2, clause 2. 2 155 U. S. 311. 9 632 CONSTITUTIONAL LAW, [$ 309. the judicial power is not competent to coerce the asylum State to comply with the demand of the demandant State; but in the case of the fugitive from service it is a private claim of the owner for the delivery of his property, who is also a person who may assert his freedom in consequence of any law or regulation of the asylum State. It is obvious, therefore, that this claim and the resistance thereto would generate a suit of some kind before some judicial tribunal. This being so, and the case arising under the Constitution of the United States, would give to the judicial power of the United States jurisdiction of such case, to be regulated by necessary and proper laws to be passed by Congress for mak- ing the proceeding effectual. With this view of the Consti- tution, Congress in 1793 passed the fugitive slave law, which was in operation until it was superseded by the fugitive slave act of 1850. Both of these acts prescribed the judicial procedure for trying the title of the claimant to the fugitive in a United States forum. The validity of both of these acts was stoutly contested. That of 1793 was considered in the case of Prigg v. Pennsylvania.” The decision of the court was de- livered by Mr. Justice Story. The case was briefly this: Prigg, as the agent of a Maryland owner of a fugitive slave, caused the slave to be arrested, to be removed to the State of Maryland and delivered into the custody of her master. A special verdict found the facts. The court adjudged the accused guilty of the offense; he appealed to the Supreme Court of Pennsylvania, where the judgment was pro forma, affirmed. From this latter judgment writ of error was brought to the Supreme Court of the United States. The Supreme Court reversed the judgment as unconstitutional and void. Judge Story held that the Constitution wested in the United States government exclusive power to legislate concerning the extradition of fugitive slaves; that the owner of a fugitive slave was clothed with complete power in every State to seize and recapture him whenever he could do so. 1 Const. U. S., Art. III, sec. 2, and 216 Pet. 539. Art. I, sec. 8, clause 18. § 309.] LEGISLATIVE DEPARTMENT. 633 without a breach of the peace. The statute of Pennsylvania. of March, 1826, made it a crime to take or carry away any negro with the intent of selling or keeping him as a slave, and punished such act by fine and imprisonment. The decis- ion of the unconstitutionality of the Pennsylvania law was the question involved. The exclusiveness of the power in Con- gress in respect to the extradition of such fugitives was not involved, and therefore was dictum. Chief Justice Taney, . and Justices Thompson, Baldwin and Daniel, concurred with the opinion of Story on the unconstitutionality of the law under which conviction was had, but dissented from the opinion expressed that the power of the Federal government was exclusive. Justice McLean concurred with the judg- ment of the court, and agreed with Justice Story that the power was exclusive in the Federal government to act in respect to such cases; but held that there was a police power in the State to guard and protect its own jurisdiction and the peace of its citizens. The court was unanimous in de- claring the act of 1793 constitutional, and the act of Penn- sylvania punishing the claimant of the fugitive slave uncon- stitutional and void. In the case of Ableman v. Booth' the question arose thus: Booth was charged with aiding and abetting in Wisconsin the escape of a fugitive slave from the United States mar- shal who had him in custody under warrant issued by a dis- trict judge of the United States under the act of Congress of September, 1850. A collateral question was involved, which, upon the clause we are now considering, it is not necessary to advert to. The court decided that the fugitive slave law of 1850 was, in its provisions, fully authorized by the Constitution of the United States; that the conviction of Booth under one of its provisions for aiding the escape of a fugitive slave was legal and constitutional; and that the judgment of the Supreme Court of Wisconsin discharg- ing Booth from the imprisonment inflicted by the United States court was utterly void and should be reversed. The 121. How, 506, 634 CONSTITUTIONAL LAW. [$ 310. court was unanimous in its decision, including Justices Mc- Lean, Nelson, Grier and Clifford, who were citizens of North- ern States. " ..a - The conclusion, however, is not justified that all legisla- tion by the States in aid of the owner of a fugitive slave or punishing the obstruction of a right was unconstitutional. In Moore v. Illinois, Moore was indicted under the code of Illinois for harboring a negro slave and preventing the law- ful owner from retaking him, etc.; and the court, with one dissentient, affirmed the constitutionality of the Illinois law, and as dicta intimated that any legislation of the State to aid and assist the claimant would be valid. It may be added that it is probable from the language of Judge Story in Jºrigg v. Pennsylvania that the power of Congress to pass laws in aid of the extradition of fugitives from justice would be sustained upon like grounds as the laws of 1793 and 1850 were held to be constitutional in respect to fugitive slaves.” GUARANTEE OF REPUBLICAN FoRM OF GOVERNMENT. § 310. This is an important provision which carries into effect the purposes expressed in the original Articles of Con- federation, and the objects mentioned in the preamble to the Constitution in these words: “To insure domestic tranquill- ity, provide for the common defense, . . . and secure the blessings of liberty to ourselves and our posterity.” The language of the present clause is as follows: “The United States shall guarantee to every State in this Union a repub- lican form of government, and shall protect each of them against invasion; and On application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence.” The first provision is the guarantee of a republican form of government by the United States to each State. Every- where in the Federalist, and notably in the twenty-first, quot- ing from Montesquieu, as well as in the forty-third, number, 1 14 How, 13. 3 Const. U. S., Art. IV, sec. 4, 216 Pet. 620. § 310.] IEGISLATIVE DEPARTMENT. 635 the idea is prominently enforced that a union of States, in which the form of government of each is dissimilar from that of each of the others, resulting in a union of dissimilar democ- racies, would be in its very nature so uncongenial as to pre- sent no hope of permanency or harmony in its relations. The whole structure of the Federal system is based on the idea of the popular form of government of each of the members of the Union. The popular suffrage, which is the constituency of the House of Representatives, is derived from it as the con- stituency of its own legislature. It is very natural then for Mr. Madison to say: “In a confederacy founded on repub- lican principles, and composed of republican members, the superintending government ought clearly to possess author- ity to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the polit- ical institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.” He thus argues that the Union is a compact between dis- tinct republics, and that the basis of that Union is the iden- tity of type of each of these republics, and a guarantee assured that this type shall be permanent. And he adds: “Governments of dissimilar principles and forms have been found less adapted to a Federal coalition of any sort than those of a kindred nature.” And Montesquieu says:” “A confederacy is not agreeable to the nature of petty mon- archies. . . . The spirit of monarchy is war and enlarge- ment of dominion; the spirit of republics is peace and mod- eration. These two kinds of government cannot naturally consist in a confederated republic.” " This idea was originally proposed in Randolph's plan.” At last Mr. Wilson suggested the form that a “republican form of government shall be guaranteed to each State.”" At one time there was a suggestion that each State should have a re- 1 Federalist, No. XLIII. *Madison Papers, 734,844,861,913. * Spirit of Laws, Book 9, chs, 1, 2, 5 Id, 1141. 3 Id. 636 CONSTITUTIONAL LAW. [$ 310. } publican Constitution. The form adopted was the guarantee of a republican form of government. This left great variety in the Constitution as to suffrage and the like to be protected under a republican form of government. Thus many States had very restricted suffrage, as the freehold suffrage in Vir- ginia. Some of them had universal suffrage. All the slave States excluded slaves from suffrage, and most of them free negroes. Other States, having no slaves, admitted what was substantially universal suffrage. Still the form was popular; though substantially there was great variety. Mr. Madison discusses this clause with condensed force in the Federalist," as follows: “It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments without the con- currence of the States themselves. These questions admit of ready answers. If the interposition of the general govern- ment should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers. To the second question it may be answered, that if the gen- eral government should interpose by virtue of this constitu- tional authority, it will be of course bound to pursue the authority. But the authority extends no farther than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guar- antied. As long, therefore, as the existing republican forms are continued by the States, they are guarantied by the Federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the Federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions; a restriction Which, it is presumed, will hardly be considered as a griev- ance.” 1 No. XLIII. § 311.] LEGISLATIVE DEPARTMENT, 637 § 311. We start with the assumption, then, that all the forms of government then obtaining in the several States of the Union were republican. The above citation from Mr. Madison shows this. But the fact is patent. Would the States have adopted a Constitution which invited a dis- turbance of their forms of government upon the instant that the Constitution went into effect? The existence of slavery, where one-third or one-half of the population were slaves, was not inconsistent with a republican form of government. Men might say it was inconsistent with the substantial idea of a republic, but still by the internal polity of each State it was republican in form, only those being excluded from the suffrage whom the State deemed unworthy. Nor is a very restricted suffrage inconsistent with a republican form of government. Every form of suffrage involves the idea that only those are excluded who are unfit for it, and a re- publican form of government does not require the admission of unfit persons to suffrage, in order to its being republican. Hence slaves without votes were admitted as a basis of rep- resentation, three-fifths being counted, and this by the Con- stitution of the United States. That Constitution which recognized all this in the State Constitutions could not deem the status of slavery and the disfranchisement of slaves in- consistent with a republican form of government. The clause reads: “The United States shall guarantee.” What authority then must be the guarantor? By article I, section 8, clause 18, Congress has power “to make all laws which shall be necessary and proper for carrying into execu- tion the foregoing powers, and all other powers wested by this Constitution in the government of the United States,” etc. The law, therefore, necessary and proper to guarantee a re- publican form of government must be passed by Congress to carry into execution this duty reposed in the United States. The words “to guarantee to every State in this Union a repub- lican form of government,” obviously discriminate the State as a Body-politic from its government, whose form must be re- publican. A delicate question here arises. If Congress must 638 CONSTITUTIONAL LAW. [$ 311. guarantee, must it not determine when the occasion arises for its exercise? The word “guarantee” does not mean to form, to establish, to create; it means to warrant, to secure, to protect the State, that is, the Body-politic, in its right to have a republican form of government. It defends the peo- ple against the interference of any foreign power, or of any intestine conspiracy against its right as a Body-politic to establish for itself republican forms of government. To allow the guarantor to take the initiative, and, under the pretext of its duty as guarantor, to impose a form of govern- ment upon the people of a State, would make this clause, intended for protection, an excuse for destructive invasion. No occasion for the exercise of this important yet danger- ous power has ever arisen, except as the result of civil war. It was assumed as a postulate in Tea as v. White' that this guaranty clause, by the act of secession of the State of Texas, was not applicable, as that State had lost its government and could not be recognized by the court as capable of instituting a suit in the name of the State. It was necessary that the government and the people of the State should be restored to peaceful relations to the United States under the Consti- tution before such a suit could be prosecuted. The author- ity to provide for the restoration of the State government was derived from this guarantee clause in the Constitution. When slavery was abolished the new freedmen became part of the people, and it was the State thus constituted which was now entitled to the benefit of the constitutional guar- antee. Congress had the choice of means for re-establishing a republican form of government, but these means must be sanctioned by the Constitution. In accord with this reasoning the reconstruction acts were passed, by which it was declared that no legal State govern- ments existed in the seceded States; and that in order to preserve peace and good order in the States until legal State governments republican in form could be established, they were to be divided into military districts, each of which 17 Wall, 700. § 311.] LEGISLATIVE DEPARTMENT. 639 was assigned to an officer of the army, with a military force to enable him to perform his duties and enforce authority. The officer was authorized to protect persons in their rights, to punish criminals, either through the local civil tribunals or through military commissions which the act authorized. These acts provided that when the people of any of these States had framed a Constitution in conformity with that of the United States, and framed it in a way specified by the statute, and when the State had adopted a certain arti- cle of amendment to the Constitution, which article was to become a part of the Constitution, then the State should be admitted to representation in Congress. The court in that case did not pass upon the constitutionality of any provision of the reconstruction laws. The case was decided with three judges dissenting; nor have these laws ever been sanctioned by judicial decision. It is therefore pertinent to observe in re- spect to them, that they overthrew existing republican forms of government in every State of the Confederacy, and that government in Virginia which Congress and the President had recognized in the act dividing the State of Virginia which had resulted in the admission of West Virginia to the Union; and the government of Virginia thus recognized was put in possession of power at the city of Richmond after the war as the lawful government of Virginia. The reconstruction laws overthrew that government which Congress itself had set up, and substituted a military government with the judicial power subject to its control. Military commissions were inaugurated for the trial of citizens in other States,' and conventions were called under regulations prescribed for suffrage by Congress, and new Constitutions were adopted and new forms of government established. It is hardly a question that these laws, which overthrew the form of gov- ernment established by the State, and refused to restore it as the legitimate form of government, and set up a military despotism in its place, were not a guarantee of a republican form of government to the States, but guaranteed the over- 1 McCardle's Case, 6 Wall. 318, and 7 id. 506, 640 CONSTITUTIONAL LAW. [$$ 312, 313. throw of all republican forms of government and the adop- tion of a Constitution against the will of its people and under the dictation of military power. § 312. The next clause reads, “The United States . . shall protect each of them against invasion.” This is a carry- ing out of the offensive and defensive alliance between the States, and requires the United States, through the action of Congress and by force of their armies and navy, to pro- tect each State against invasion. This is the common de- fense. It makes it improper for the United States, by treaty or otherwise, without the consent of the State, to cede any part of its domain; for how can it be protected when the invasion or permanent possession of any part of the State is permitted by the guarantor? § 313. The clause then provides' that the United States, on application of the legislature or of the executive (when the legislature cannot be convened), shall protect each of them against domestic violence. In the case of domestic violence, it is obvious that the United States cannot interfere unless called upon to do so by the legislature, or by the State ex- ecutive when the legislature cannot be convened. The United States, then, are not to determine what is domestic violence calling for their protection, but that is to be determined by the legislature or executive of the State. It is interesting to note the observations of Mr. Madison on this point. He says:” “At first view, it might seem not to square with the republican theory to suppose either that a majority have not the right or that a minority will have the force to sub- vert a government; and, consequently, that the Federal in- terposition can never be required but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations for the purpose of violence be formed as well by a majority of a State, especially a small State, as by a majority of a county or a district of the same State; and if the authority of the State ought in the latter case to 1 Const. U. S., Art, IV, sec. 4, 2 Federalist, No. XLIII. § 313.] T.EGISLATIVE DEPARTMENT, 641 protect the local magistracy, ought not the Federal author- ity in the former to support the State authority? . . . Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side against a superior number so situated as to be less capable of a prompt and collected exertion of its strength 2 . . . May it not happen, in fine, that the minority of citizens may become a majority of persons by the accession of alien residents, of a casual concourse of ad- venturers, or of those whom the Constitution of the State has not admitted to the rights of suffrage 2 I take no no- tice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men, but who, in the tempestu- ous scenes of civil violence, may emerge into the human character and give a superiority of strength to any party with which they may associate themselves.” These views show that the United States are bound, on the application of the legislature or executive of a State, to aid in suppressing an insurrection in a State, even though it may have a majority, including alien residents not suffra- gans, on the side of the opposition to the government. The United States cannot join with the parties to domestic vio- lence, because they are in the majority, to overthrow the government which is guaranteed as a republican govern- ment, and to be protected against domestic violence. This would make the United States a factor in domestic quarrels, and not a protector of the government against those who are too strong to be overborne by it. Where there are rival governments and the demand is made by either or both, it has been decided in the case of Luther v. Borden, followed 17 HOW, 42, 41 642 CONSTITUTIONAL LAW. [Š 314, 315. in Texas v. White, that when the application is made the President may have the authority to decide which is the legitimate government. This latter part of this clause was insisted on by the Southern States, because assuring them of the protection of the United States governmentin case of servile insurrection.” ExPRESS LIMITATIONS ON FEDERAL Power. § 314. In the form in which power was delegated to the Congress in the Constitution, there was an implied limita- tion upon the powers in the fact that all were delegated; and that all not delegated, or prohibited to the States, were reserved to the States respectively, or to the people. But the framers of the Constitution were not content with this. They were wise enough to foresee that power, when left in any degree to implication, would seek to increase itself by inference so as to endanger public liberty. They proposed, therefore, upon certain essential matters, to provide against this stretch of power through implication, by forbidding the exercise of certain dangerous powers in express terms. A number of these are to be found in arti- cle I, section 9; and others were afterwards added in the first ten amendments to the Constitution. There had been a great popular demand for a bill of rights, and after the Constitution was submitted to the judgment of the people of the several States, the cry of patriots throughout the Union was, that a radical defect in the system was in the absence of a declaration of rights, which should be beyond the reach of Federal power. How far this demand was met in the original Constitution we will now proceed to consider. § 315. The first clause of the ninth section we need con- sider no further, as we have already fully considered it under the power as to commerce. 17 Wall. 700. See also Appendix 32. See also Attorney-General Cush- to Tucker’s Blackstone, 367. ing's Opinion, March 3, 1857, in * 1 Tucker's Blackstone, Appen, Yazoo City (postoffice) case. 367; Rawle on the Constitution, ch. g § 316.] LEGISLATIVE DEPARTMENT. 643 The second clause is in these words: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it.” Let us analyze this clause. There is no other mention of the writ of habeas corpus in the Consti- tution. The underlying principle of this writ, which sub- jected all arrest or seizure of the person of a free man to judicial arbitrament, was found in the thirty-ninth chapter of Magna Carta; but that which we refer to ordinarily as the Habeas Corpus Act was the 31st of Charles II., chap- ter 2. The principles of this great act of Charles II. were brought to America by the several colonies, and acts of habeas corpus based upon that primeval act, which was itself but a re-enactment of acts more ancient than it, were passed by the several States, for giving to every person imprisoned by whatever authority the right to have the legality of his arrest and imprisonment passed upon by judicial authority. When, therefore, the Constitution declares in this clause that “the privilege of the writ of habeas corpus shall not,” etc., it necessarily speaks of the writ of habeas corpus which obtained in each of the States comprising the Union. It is natural, therefore, as has been settled by decisions, that the writ of habeas corpus cannot under this clause be suspended. The privilege may be; the writ never.” The form of the clause is a negation of the power to suspend except under certain circumstances, which are mentioned; which is a negative pregnant with affirmation that power to suspend it is only given when those circumstances arise. § 316. What Federal authority can suspend this privilege? The answer is distinct: No power but Congress can suspend it; the President cannot. 1st. England, from which we obtain Magna Carta, Habeas Corpus, and the fundamental principles of our bill of rights, has settled this question there. In the thirty-ninth chapter of Magna Carta, it is declared that no free man shall be ar- 1 Stubbs' Select Charters, Appen, 2 Ex parte McCardle, 7 Wall, 506. 517. 644 CONSTITUTIONAL LAW. [$ 316. rested or lose his life or liberty, except by the law of the land or the judgment of his peers. His liberty is protected by law, and cannot be stricken down by royal power. There- fore this principle of English liberty, the law which estab- lished habeas corpus and protected liber homo from any depri- vation of liberty, could not be repealed by any other than the power which enacted it; nor could the king repeal tem- porarily, by suspension, the law enacted by Parliament. This pivotal principle in the English Constitution was the turning point of the English revolution of 1688–89. And the trial of the seven bishops and the verdict in that case was the vindication by the English people of the irrepealability of an English law by the suspending power of an English king. The last of the Stuarts lost the throne by insisting on his power to dispense with a law of the kingdom. In England, therefore, since the revolution of 1688, the king has not sought to exercise the power of dispensing with habeas cor- pus. If he could, English liberty would be dead, because subject to suspension at the will of an English king. 2d. The history of the debates in the convention leads to the same conclusion. In Pinckney’s plan, the privilege of the writ was not to be suspended except in cases of rebel- lion or invasion." Subsequently Mr. Pinckney proposed a clause “that it shall not be suspended by the Legislature, ex- cept,” etc.” Rutledge and Wilson thought suspension should never be allowed. But by a vote of seven to three the clause was adopted in substantially its present form. It was never referred to as subject to suspension except by Congress. 3d. The power of suspension was in the legislative article, and between two clauses, and in a section which related ex- clusively to legislative power. So, noscitur a socłłs, was the power to suspend a legislative act of the States only in the legislature. * 4th. The power to suspend the privilege of a writ must be in one of the departments. It cannot be that the judiciary 1 Madison Papers, 741. 2Id. 1265. § 317.] LEGISLATIVE DEPARTMENT 645 could suspend a writ grantable by a court ea debito justică to a citizen; nor was there any mention in the enumerated powers of the President. Suspension in fact was to repeal pro tempore. How could the President repeal permanently or for a time a law of Congress? A fortiori, how repeal a right imbedded in the foundation law of the State, and recognized as a constitutional right in this very clause ? 5th. In the convention it was distinctly proposed that the President should have the power to suspend a law for a cer- tain term. Ten States vote no without an affirmative vote. The only time that the authority to suspend the privilege of the writ of habeas corpus is mentioned is in connection with Congress, and with none other. Furthermore, as the power is not given to the President in express terms, it would have to be implied as necessary and proper to carry out Presidential powers. But these means which are necessary and proper for this purpose are vested in Congress itself, as we have seen, by the words “to make all laws which shall be necessary and proper for car- rying into execution, etc., powers wested by this Constitution in any department or officer thereof.” § 317. Again, Congress has sole power to declare war and to provide for the suppression of rebellion. The President has neither. This clause prohibits the suspension of the writ, unless when in case of rebellion or invasion the public safety may require it. As Congress is charged with the public Safety in cases of rebellion and invasion, it would seem to follow that Congress may have the power to suspend the writ of habeas corpus when its exercise would endanger the public safety. Congress alone can determine when the war shall begin, and therefore when the occasion has arisen for its suspension. If the President has power to declare war, as seemed to be held in the Prize Cases,” and to continue it indefinitely, as was decided by the Supreme Court in refer- ence to the end of the Civil War by the Presidential procla- 1 Const. U. S., Art. I, Sec. 8, clause 18. 22 Black, 635. 646 CONSTITUTIONAL LAW. [$ 317. mation, then the power of the President to suspend the privilege of the writ of habeas corpus would be dependent on his own authority to declare and perpetuate a rebellion at his own pleasure. In this view, how can it be supposed that the framers of the Constitution intended to give this extraordinary authority to destroy human liberty to the President, during a period of war which can never cease by a treaty of peace, except with the consent of the President; or of a civil war, which the courts have decided continues until its cessation is declared by the Presidential proclama- tion ? 6th. Judge Story," speaking of who shall decide whether the exigency has arisen for a suspension, uses this language: “It would seem, as the power was given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether such exigency has arisen must exclusively belong to that body.” Judge Tucker” says: “In England the benefit of this important writ can only be suspended by authority of the Parliament. . . . In the United States it can be suspended only by the authority of Congress.” Mr. Hamilton” refers to this clause as being equivalent to an important article in a bill of rights to se- cure liberty. How feeble would have been his citation of this, if those who demanded a bill of rights had been able to charge that the privilege of the writ of habeas corpus was suspensible by the one-man power. The truth is, it may be safely said that no respectable lawyer before the Civil War, may more, no lawyer, had ever asserted that the privilege of the writ could be suspended by any power except Congress. Mr. Blackstone * says: “But the happiness of our Constitu- tion is, that it is not left to the executive power to deter- mine when the danger of the State is so great as to render this measure expedient; for it is the Parliament only or leg- islative power that, whenever it seems proper, can authorize 1 Story on the Constitution, 1342. 3 Federalist, NO. LXXXIV. *1 Tucker's Blackstone, Appen, 4 Stephen's Blackstone, 151. 292. § 318.] LEGISLATIVE DEPARTMENT. 647 the Crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons, without any reason for so doing.” t Besides the American authorities already cited, Chief Jus- tice Marshall, in delivering the opinion of the Supreme Court in the case of Ee parte Bollman, prefaces what will be quoted by stating that, in the great judiciary act of 1789, Congress secured the liberty of the man by authorizing the issue of this great writ by all the courts, and then adds: “If at any time the public safety should require the suspension of the powers wested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.” § 318. It is thus seen that, at the time of the adoption of the Constitution, no power in Great Britain could suspend the writ of habeas corpus except Parliament. Parliament may suspend the privilege of the writ, or rather authorize the Crown to suspend it, in order that in case of public dan- ger a suspected person may be arrested without the giving of reasons for the arrest or detention. To give to the Crown the power to suspend in order to arrest would be to unite the legislative power with the executive, which, under the maxim of Montesquieu, would be unbridled tyranny. During Jefferson’s administration he recommended to Con- gress the suspension of the writ of habeas corpus during the Burr conspiracy. Congress refused to do so, and the Presi- dent never assumed the power or pretended to claim it. It is obvious if the President can create the status of civil War, as was decided in the Prize Cases,” and when this status of war is brought about the President can close it by proclamation, as was decided in a case already cited, then it follows that the President would have power to create the status of war, in order to declare that the public safety required the suspen- sion of habeas corpus, and to suspend it by executive act until 1 4 Cr. 101. 22 Black, 635. V 648 CONSTITUTIONAL LAW. [$318. he should declare the war at an end. Contrasting this assump- tion of power for the executive with the power of the Crown in Great Britain, it may well have been said that on such a construction the Constitution would have conferred upon the President “more regal and absolute power over the liberty of the citizen than the people of England have thought it safe to entrust to the Crown; a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.” In Eº parte John Merryman, the question arose in 1861 of where the power resides to suspend the privilege of habeas corpus. On the 26th of May, 1861, before Congress had met after the outbreak of the Civil War, the President had assumed the power as an executive prerogative to declare that civil war existed, and on the basis of that declaration assumed in May, 1861, not only to suspend the writ of habeas corpus, but to confer that authority upon the military com- mander in the district of Maryland. Merryman was im- prisoned in Fort McHenry in the State of Maryland, and filed a petition for habeas corpus before Chief Justice Taney to be released from an arrest made on the 20th day of May, and detention by General Cadwalader of his person without warrant from any judicial officer, but upon the general charge of treasonable acts against the government. The Chief Jus- tice issued the writ of habeas corpus, directing General Cad- walader to appear and produce the body of John Merryman, and to certify and make known the day and cause of the capture and detention of the said John Merryman, and to submit to and receive whatsoever the said Chief Justice should determine upon concerning him in this behalf, according to law, and to have then and there the said writ. General Cadwalader made a return declaring that he was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety, and declined to produce the prisoner. Thereupon the Chief Jus- 1Taney's C. C. Rep. 246–65. § 318.] LEGISLATIVE DEPARTMENT. 649 tice issued an attachment against General Cadwalader for contempt, and delivered the same to the marshal. The marshal made return that he was unable to serve the attach- ment upon General Cadwalader by reason of military force. The Chief Justice, in an impressive opinion, decided that the civil process had been subordinated to military power by the action of General Cadwalader under the assumed Orders of the President. He decided that the assumed power of the President was contrary to the Constitution of the United States; that the suspension of the writ of habeas corpus was a legislative power; that the President, under his duty to take care that the laws be faithfully executed, was bound to uphold and aid the judicial power, and not to oppose and defy it; and, referring to the nature of the Brit- ish Constitution on this question, and the opinion of Chief Justice Marshall in Ee parte Bollman, and to Judge Story’s Commentaries, he closes his opinion in this language: “In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the offi- cer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall therefore order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfillment of his con- stitutional obligation to “take care that the laws be faith- fully executed,’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.” } The President never acted in the matter so as to release Merryman; and the suspension of the privilege of the writ of habeas corpus by military force was allowed to have effect at the will of the executive against the judicial mandate of 650 CONSTITUTIONAL LAW. [$ 319. the venerable Chief Justice of the United States. Thus the only proceeding in our annals up to that time which could be regarded as a precedent for the use of the executive power to suspend this great privilege was in the exertion of the mili- tary power of the President to enforce the authority of the military over the civil jurisdiction of the courts; and so the only judicial precedent is the emphatic decision in this case that the only power that could suspend this privilege is in Congress, and not in the President. The tenor of the opin- ion of the court in Milligan’s Case' sustains the principles of the decision of the Chief Justice in Merryman’s Case. § 319. Another case well calculated to shock the public sen- timent of the country in respect to the danger of the military power has occurred. In violation of the fifth amendment to the Constitution, to be hereafter referred to, Mrs. Surratt, a woman, not a soldier in the army of the United States or subject to militia duty, was arrested and tried by a court- martial for the deplorable assassination of President Lincoln, which tribunal, by the fifth amendment, had no jurisdiction in such cases. She was condemned to death. She sued out a petition for the writ of habeas corpus to bring under the ju- risdiction of the civil courts in the capital of the country the power of the court-martial to condemn her to death. The writ was issued by Mr. Justice Wiley, one of the judges of the District of Columbia. With the precedent of General Cadwalader's defiance of the order of Chief Justice Taney before them, the military disobeyed the order of Mr. Jus- tice Wiley, and this woman, in the shadow of the capitol, under a jurisdiction utterly unconstitutional, and by a mil- itary power in defiance of the jurisdiction of the civil courts, was hung. It will be perceived, therefore, that the suspen- sion of the writ of habeas corpus screened the unconstitu- tional jurisdiction of the court-martial from the scrutiny of the civil courts, and under cover of this the military power was left without restraint to work the death of its victim in defiance of the Constitution of the country. This con- 1 4 Wall. 2. § 319.] JLEGISLATIVE DEPARTMENT, 651 struction, therefore, is not only fatal to the liberty but to the life of the citizen, and puts his liberty and life in the hand of the executive. Several years after hostilities ceased, the trial of McCardle by military power under the provisions of the Reconstruction Acts was attempted to be averted by invoking the benefit of the writ of habeas corpus. We have seen how it was at- tempted to remedy the denial of that writ in obedience to those acts by an appeal to the Supreme Court of the United States, and how the Supreme Court was divested of its ju- risdiction upon appeal to grant to McCardle the benefit of its great power to rescue him from the prospect of mili- tary trial by the law repealing the clause of the previous act granting it the power to consider the case upon appeal. The history of these unhappy precedents is given only to exhibit the dreadful evils of a departure under any exigency from the sacred provisions of the Constitution of the country, and to note them, we hope, as the only cases in all Our future as in all our past history which will endanger the life and liberty of the citizen so fully protected by the noble provis- ions of the Constitution of the United States. The States are not forbidden to suspend the writ of habeas corpus by any provision of the Constitution of the United States, and the power of the States to do so is not restricted by the conditions upon its exercise by the Federal power which occur in this clause." The true view of this important restriction upon Federal power is that the framers of the Constitution felt that occa- sions might arise of public danger in time of war or civil commotion when the arrest of a person might be proper, though there might be no sufficient proof to establish a trea- sonable purpose before a civil court. It was obviously a power by arrest and detention to prevent the evil results which would flow from leaving the accused to carry out his designs unrestrained, and to hold him in order to the safety of the country. It was never intended that this detention 1 Luther v. Borden, 7 How. 42. 652 CONSTITUTIONAL LAW. [$ 320. should be followed, under cover of the suspension of the privilege of the writ of habeas corpus, by prosecution, con- viction and punishment, and in the deprivation of his liberty or life. Prevention, not punishment, was the object of this clause. The case cited was an abuse of the suspension of the privilege of the writ of habeas corpus by the violation of the fifth amendment of the Constitution in the unconstitu- tional trial, conviction and punishment of the offender. PROHIBITION AGAINST BILLs of ATTAINDER. § 320. “No bill of attainder or ea post facto law shall be passed.”" The same restriction was imposed upon the States.” We may consider this subject in its application to Con- gress and to the States. Bills of attainder were not within the judicial power of Parliament. The judicial procedure was by impeachment by the House of Commons and trial by the House of Lords. A bill of attainder was the legisla- tive act of Parliament.” These acts of Parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose, are, to all intents and purposes, new laws made pro re nata, and by no means in execution of such as are already in being." These acts charged persons named in the bill with criminal misconduct, convicted them, and adjudged the penalty of death with forfeiture of property. They were passed to reach cases where the evidence of guilt was not sufficient for judicial conviction, and sometimes for obnoxious conduct not made criminal by existing law, and therefore making criminal by after-law what was not crim- inal when done. The accused was generally denied a hear- ing. It was the union of legislative and judicial power in the same hands, which, under Montesquieu's maxim, was the “essence of tyranny.” The legislature made a deed not crim- *Const U. S., Art. I, sec. 9, clause 3. note; May's Practice of Parliament, *Id, Art, I, sec. 10, clause 1. 484. 84 Stephen's Blackstone, 386, and 44 Stephen's Blackstone, 379, § 320.] LEGISLATIVE DEPARTMENT. 653 inal at the time done a mortal offense, and sat in judgment upon the accused to carry out by judicial forms what had been enacted by the so-called judges. Besides these bills of attainder there were bills of pains and penalties, which only differed from the former in that the penalty was less than death. During the Revolutionary period such bills were passed in some of the colonies, one case of which came before the Supreme Court, the case of Cooper v. Telfair." That case grew out of a bill of pains and penalties. In New York bills of attainder were passed con- fiscating the property of offenders, and condemning them to death without hearing and without the form of trial.” But these acts of the State were passed before the Constitution went into effect. In the convention of 1787 the clause as to bills of attainder was passed mem. con. As to the clause relat- ing to ea post facto laws, passed by a vote of seven to three, many members thought that it was unnecessary to insert such a provision, Mr. Ellsworth holding that ea post facto laws were void of themselves.” The tyrannical character of a bill of attainder has been exposed by a number of writers.” In Fletcher v. Peck” the Supreme Court said: “A bill of attainder may affect the life of the individual or may con- fiscate his property, or both.” In this clause the power of the legislature over the lives and fortunes of individuals is expressly restricted. This definition includes the technical bill of attainder, as well as the bill of mere pains and penal- ties, and was so interpreted by Justice Story, ubi supra. The question has been very fully considered in two cases, Ee parte Garland" and Cummings v. Missouri." In Eo parte Garland the court defined a bill of attainder as “a legislative act which inflicts punishment without ju- 1 4 Dall, 14. - Constitution, ch. 10; Woodson’s 2Cooley's Constitutional Law,284, Law Lectures, 621–24. 285. 56 Cr. 138. 3 Madison Papers, 1399–1401. 64 Wall. 277. 4 Story's Commentaries, 1888, cit- 74 Wall, 326; Hawkes v. New ing Dr. Paley; 1 Tucker's Black- York, 170 U. S. 189. stone, Appen, 292; Rawle on the 654. CONSTITUTIONAL LAW. [$ 320. dicial trial; ” and held in that case that a bill of pains and penalties was within the prohibition of bills of attainder. Gar- land's case was shortly this: Garland was admitted as an at- torney before thé Supreme Court in 1860 and duly qualified. He took part in the rebellion. In 1865 he was granted a full pardon upon the strength of an oath which he took and sub- scribed. He produced his pardon before the court and asked permission to practice. Congress in January, 1865, passed an act that no person should be permitted to practice, or be permitted to appear and be heard, at the bar of the Supreme Court or any other court of the United States, unless he should have first taken and subscribed an oath known as the iron-clad oath, by which he should swear that he had given no aid, etc., to the rebellion. His application was argued by counsel. The court decided that to exclude him from the practice of law in the Federal courts or from any other avocation of life for past conduct was punishment; that the act of Congress of 1865 was a bill of pains and penal- ties, and as such was forbidden by this clause in respect of bills of attainder, and that the pardon of the President reached the punishment as well as the offense of treason. If granted before conviction, it prevented any penalty at- taching consequent on conviction; if granted after convic- tion, it removed that penalty. The court admitted him to practice. In Cummings v. Missouri the provision of the Constitu- tion of Missouri requiring preachers and teachers, in order to continue in their professions of preaching and teaching, to take an oath equivalent to the iron-clad Oath before men- tioned, was brought in question. The court held that this clause of the Constitution of the State presumed the guilt of the man and adjudged the deprivation of his right to teach and preach, unless the presumption was removed by the ex- purgatory oath. They assumed the guilt, and adjudged the punishment conditionally. This amounted to condemnation and punishment nisi. This was equivalent to an ea post facto law in inflicting a penalty which did not attach to the al- § 320.] LEGISLATIVE DEPARTMENT, 655 leged offense at the time committed, and changed the evi- dence upon which conviction could have been had, by first assuming the guilt and condemning for it, unless the accused established his innocence by an expurgatory oath. The opin- ions in these two cases are learned and full, and rest upon the definition of an ea post facto law as made by Chief Jus- tice Marshall in Fletcher v. Peck, supra. He says an ea post facto law is one “which renders an act punishable in a man- ner in which it was not punishable when it was committed.” So in Fletcher v. Peck, the Chief Justice held that the State of Georgia could not take an estate from Fletcher derived from the State itself for any alleged criminal action on the part of its legislature, any more than it could have taken the estate from him through the form of an ea post facto law or bill of attainder for any offense of his own. The State of West Virginia passed an act in September, 1863, providing that where a judgment was rendered against a non-resident in an action in which an attachment issued without personal service or other process in the suit and without his appearance, such defendant had a right, upon returning to the State, to have the proceeding reheard and make a defense. In the case of Pierce v. Carskadon a judg- ment was entered against Pierce under an attachment in December, 1864. He appeared within a year and asked leave to file his petition for a rehearing in the case. It was refused, because it did not conform to the law passed in 1865 requiring it to be accompanied with an oath similar to the iron-clad oath already referred to. The court of appeals of West Virginia affirmed the decision of the lower court. Pierce appealed to the Supreme Court of the United States, because the act of February, 1865, requiring such oath as a condition of the exercise of a civil right was an ea post facto law. The Supreme Court reversed the decision upon the authority of Ee parte Garland and Cummings v. Missouri, supra. This clause in reference to bills of attainder and ea, post facto laws is in accord with all the fundamental prin- 116 Wall, 234, 656 CONSTITUTIONAL LAW. [$ 321. ciples of Magna Carta which have been imbedded in the Constitution of the United States by these clauses of prohi- bition upon Federal as well as upon State power. § 321. An ea post facto law (out of or by after-made law) requires a little more considération. It is a retrospective law, but not so in application to civil matters, but as to crimes and criminal matters. Mr. Justice Johnson, in Sat- terlee v. Matthewson,' held that the term “ea post facto’’ should be applied to past transactions of a civil as well as of a criminal nature. But these views did not prevail. The addition to the words “bill of attainder, ea post facto law'” of the words “ or law impairing the obligation of con- tracts **would seem to show that ea post facto laws, which would clearly embrace a law impairing the obligation of con- tracts, may have referred to criminal and not civil matters. A very satisfactory piece of evidence on this point is found in the proceedings of the convention. Mr. King moved a prohibition on the States to interfere in private contracts. Mr. Madison suggested that that was covered by the prohi- bition as to ea post facto laws.” The next day Mr. Dickerson mentioned the fact that Blackstone said the terms ea post facto related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for that purpose was requisite.” The clause in reference to the obligation of contracts was introduced by the Committee of Style, which interpreted the words ea post facto as applying only to crim- inal matters. This was judicially passed upon in the case of Calder v. Bull,” and the full extent of its meaning was ex- plained by the court. A law was held to be ea post facto: 1st. When the act previously committed, and then inno- cent, was by after law made a crime. 2d. When the after-made law increased the grade of crim- inality of a previously committed crime, as from misdemeanor to felony. 12 Pet. 380. 4 Id. 1450. 2 Const. U. S., Art, I, Sec. 10. 53 Dall, 386, * Madison Papers, 1443–44, * § 321.] LEGISLATIVE DEPARTMENT, 657 3d. When the after-made law increased the punishment for a previous offense. 4th. When the after-made law changed the rules of evi- dence, making less or different testimony necessary to con- Vict, or changed essentially, and not formally merely, the modes of trial. In the case of Kring v. Missouri, a plea of guilty of mur- der in the second degree, on appeal was reversed and set aside. Kring was subsequently convicted of murder in the first degree. By the law in force when the homicide was committed, a conviction of murder in the second degree was an acquittal of the charge of murder in the first degree. But after the offense, and before the plea of guilty was entered, the law was changed, so that if a judgment on that plea was lawfully set aside, it would not be held an acquittal of the higher crime. It was held that in this case the new law was ea post facto and there could not be a new trial for murder in the first degree. Mr. Justice Miller, in deliver- ing the opinion of the court, gave a history of the clause which is interesting and instructive. A majority of the court held, citing United States v. Hall,” that any law passed after an offense committed, which, “in relation to that of- fense or its consequences, alters the situation of a party to his disadvantage,” is an ea post facto law; and, in the lan- guage of Denio, J., in Hartung v. The People,” “no one can be convicted and punished in this country unless according to the law prescribing the punishment by the sovereign au- thority at the time the offense was committed.” In Hopt v. Utah," under a law existing at the time of the commission of the Offense, persons convicted of felony, unless pardoned or judgment reversed, were not competent wit- nesses. By a law passed after the date of the alleged of- fense such persons were made competent witnesses, and it was held that statutes temporarily enlarging the class of persons so made competent to testify are not ea post facto, 1 107 U. S. 221. 322 N. Y. 95. 22 Wash. C. C. Rep. 366. 4110 U. S. 574, 42 658 CONSTITUTIONAL LAW. [$ 321. for they do not alter the degree or lessen the amount or measure of proof necessary to conviction when the crime was committed. . This decision was unanimous. But quare: Is a law making baron and femme competent witnesses against each other after crime ea post facto? The case just cited might seem to hold the affirmative; but in that case the disability removed affected only the personal cred- ibility. The relations of baron and femme, so confiden- tial in the status existing at date of crime, ought not to be allowed to be betrayed by after-law on attempted evidence of facts not admissible at the date of the offense. In the case of Murphy v. Ramsay' it was held that the deprivation of a bigamist's right to vote under an act passed in 1882 was not an ea post facto law. It defines the qualifi- cations for exercising political functions, and does not punish for the offense of bigamy; nor is the divesting of a civil right an ea post facto law, for that applies only to criminal matters; nor does it forbid a State to divest rights unless it impairs the obligation of a contract.” The Constitution of West Virginia in 1872 declared that the property of a citizen of the State should not be sold under process issued upon judgment heretofore rendered because of any act done in the prosecution of the war of the rebellion by either of the parties thereto. It was held that when this applied to a judgment founded upon a tort committed as an act of public war, it was not the impairment of the obliga- tion of a contract, because based on tort; and that a bill in equity to set aside such judgment was due process of law, and was in no wise in conflict with the Constitution of the United States.” In Medley’s Case" a State statute, passed after the commis- sion of a murder which adds to the punishment of death, the punishment when the crime was committed, the further pun- 1 114 U. S. 15. 4134 U. S. 160; Houston & Texas 3 Watson v. Mercer, 8 Pet. 88. Central Ry. Co. v. Texas, 170 id. 8 Freeland v. Williams, 131 U. S. 243, 405. § 322.] LEGISLATIVE DEPARTMENT, 659 ishment of solitary confinement until the execution, was as to such convict an ea post facto law, and a sentence inflicting both punishments was void. And so in a case where the statute conferred upon the warden the power to fix the day of execution and compelled him to withhold the knowledge of it from the offender, when neither of these provisions was part of the law of the State when the offense was committed. In this case the doctrine stated in Kring’s Case, supra, was af- firmed. If, however, the after-law requires the execution to be before sunrise on the day fixed, and within the jailor other inclosure higher than the gallows, thus excluding the view of people outside, and limiting the number who may witness the execution, these are regulations not affecting the rights of the convict, and are not ea post facto; and are to be distin- guished from Medley's Case. § 322. The next provision runs, “No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.”’’ This re- fers to the previous clause.” This subject has been suffi- ciently discussed under the head of the tax clause,” and in the cases there referred to," and also in very recent cases.” This clause is the negation of any other mode of levy of direct taxes, except in the manner affirmatively established in a previous clause.” “No tax or duty shall be laid on articles exported from any State.”" The history of this provision and its im- portance as a part of the great compromise made in the convention between the navigation and commercial States and the cotton States has been fully given, and need not be repeated here except by this reference. The clause for- 1 Art. I, sec. 9, clause 4. 5 Pollock v. Farmers’ Loan & * Art. I, sec. 2, clause 3. Trust Co., 157 U. S. 429. Same case 3 Art, I, Sec. 8, clause 1. reheard, 158 U. S. 601. 4 Hylton v. United States, 3 Dall. °Const. U. S., Art. I, sec. 2, clause 3. 171; License Tax Cases, 5 Wall. 462; "Id, Art. I, Sec. 9, clause 5. Springer v. United States, 102 U.S. 586. 660 CONSTITUTIONAL LAW. [$ 323. bids the laying of a duty or tax on articles exported. This applies as far as the word “duty” is concerned to the article as a subject of export when it puts on the char- acter of an export; but lest there might be an evasion of the substantial purpose of the clause by laying a burden upon the article before it assumed the character of an ex- port, the word “tax” was obviously added; and the phrase “on articles exported ” was substituted for the simple word “exports,” elsewhere used. The whole clause then means that the taxing and duty power of the government should not be laid as a burden on the products of any of the States, which were to be exported. Hence the discussion which arose in the cases previously cited as to the stamp required by law to be placed, as a means of identification, on tobacco which was intended to be exported, in order to prevent its being sold in the domestic market, evading exportation. The question might be raised whether the prohibition ap- plies to articles exported from one State to another, but this has been settled in the negative. It applies to exportation only from any State to a foreign country." Some cases hold a different view, but there is strong reason for believing that it was never intended that articles exported from a State to another should be subject to tax or duty by the State or by Congress. § 323. “No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.” The latter part of this clause explains the mode in which pref- erence might be given by a regulation of commerce or rev- enue to the ports of one State over those of another. Pref- erence between the ports of the same State in this respect was not forbidden; but the commercial and revenue power 1 Cooley v. Wardens of the Port of 117 id. 504; Woodruff v. Parham, Bhiladelphia, 12 How. 299; Almy v. 8 Wall. 123. California, 24 id. 169; Pace v. Bur- *Const. U.S., Art, I, Sec. 9, clause 6. geSS, 92 U. S. 372; Turpin v. Burgess, § 324.] LEGISLATIVE DEPARTMENT, 661 of the Federal government without this prohibition might be used to the great advantage of some States and to the great disadvantage of others." In State of Pennsylvania v. Wheeling and Belmont Bridge Co.,” it would seem from the language of Justice Nelson that this prohibition upon the otherwise exclusive power of Con- gress to establish ports of entry and clearance throughout the Union was restricted so as to require Congress to allow the vessel bound to the port of a State to enter at that port and deliver its cargo, and not to be required to go to a pre- ferred port in another State. But Congress may make pref- erence between the ports of the same State, and requiring a vessel going to a particular point, for instance, to enter or clear and pay duties at that port preferably to any other port of the State. § 324. “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” This is an important provision, inasmuch as, in connection with the tax-laying power already discussed, it puts under the law-making power—that is, Congress—the power to lay and collect taxes; that is, the power of gathering in the funds necessary for governmental purposes, and gives also to Congress the power to appropriate it; and that between the collection and the appropriation, the money shall be in what was denominated the treasury, from which it can- not be withdrawn by any but by the law-making author- ity. In the early period of English history the assessment of taxes in the shires was adjusted between the quasi-judi- cial officers of the exchequer and the shire authorities; and the collection of the taxes was very largely under the power of the Crown, although the original idea was that revenue was a grant by the people to the Crown and not an exaction by the Crown from the people. At a later day Parliament insisted that the revenue collected should be under the control of Parliamentary officials, and not of offi- 1 Packet Co. v. Catlettsburg, 105 218 HOW, 429. U. S. 559. *Const. U.S., Art, I, sec. 9, clause 7. 662 constitutional LAW, [$ 324. cers of the Crown, and that they should be held subject to Parliamentary appropriation. The contention between the Crown and Parliament is described by Dr. Stubbs, out of which emerged the practice that taxes should be assessed and collected and held by officers of Parliament, whose ac- counts of expenditures should be audited under the Super- vision of Parliament, thus keeping the revenue from the possession or control of the Crown, except when it had been appropriated by acts of Parliament.” . At an early period the levy of customs duties was claimed as part of the royal prerogative over commerce; but that was never conceded, and ever since the House of Stuart was expelled from the throne of England it has been abandoned; and the royal prerogative over trade includes no power to lay duties upon exports, the exercise of which is held to be exclu- sively under the control of Parliament.” It is clear that the claim by Parliament of the right to collect revenue and grant it to the Crown is wholly inconsistent with any power in the Crown or its officials to do so free from the supreme control of Parliament. If the King collected and held the revenue under his authority, the Parliamentary power to grant sub- sidies and appropriate money to the Crown would be a sham. Hence all the machinery, not only for levying but for col- lecting and keeping the public revenue, is under the supreme control of Parliament. The freedom of grant would be transformed into the enforced exactions of the King if the revenue were; through the machinery of collecting and keep- ing, directly or indirectly under the royal power, and the device of appropriations for the army for one year only, would cease to be any check upon the prerogative. It is the independent holding of the revenues within Parliament- ary hands that effects the divorce of the purse from the * Stubbs' Constitutional History 177; 2 Stephen's Commentaries, of England, 594 et seq. 548, 549. *Id. 598, note 5; Stubbs' Select 8 Hallam's Constitutional His- Charters, 352, 361, 364, 366; Green's tory, 183–85, History of the English People, 175– $ 324.] LEGISLATIVE DEPARTMENT. 663 Crown, and which makes prerogative impotent in its assaults upon liberty. This clause of our Constitution is the embodi- ment of these principles of English liberty into the funda- mental law of the land. While, therefore, the President appoints all the officers of the government, their functions, powers, duties and responsibilities are prescribed by law, and make them independent of the authority of the President. In the first Congress the State Department was established by law, July 27, 1789, and its Secretary was to perform such duties as should be entrusted to him by the President of the Dnited States. This was because the President has con- fided to him, by the second article of the Constitution, the conduct of foreign affairs. The Secretary of State was sub- ordinate to the constitutional power of the President. The War Department was established in 1789, and its Sec- retary was to perform the duties entrusted to him by the President of the United States, as to the land and naval forces, because they belonged to the Executive Department; the President by the Constitution being commander-in-chief of the army and navy of the United States. But in the or- ganization of the Treasury Department we find a remarkable change. The Secretary of the Treasury was to be deemed the head of his department. His duty was to superintend the collection of the revenues, to grant warrants for money from the treasury if appropriated by law, etc. The office of Treasurer was created by the same act, the duties being to receive and keep the money of the United States, and to disburse the same upon warrants drawn by the Secretary, countersigned by the Comptroller, and recorded by the Register of the Treasury, and not otherwise. It is striking evidence of the motives of Congress in this peculiar legisla- tion that the report of the Secretary of the Treasury is made to Congress and not to the President, while the reports of the heads of other departments are all made to the Presi- dent. The officers of the revenue cutters provided for the collection of customs were deemed officers of customs and not of the navy, as had been suggested by Mr. Secretary 2 664. CONSTITUTIONAL LAW. [$325. Hamilton. Had they been officers of the navy they would have been under the control of the President; as Officers of customs they are under control of the Secretary of the Treas- ury. This legislation under these constitutional provisions shows that the doors to and from the treasury are under legislative control, and the key is in the hands of Congress. The obstructions to drawing money from the treasury, except through sworn officers, without whose concurrent action the custodian of money in the treasury can never permit it to pass from him, make the appropriation by a law of Con- gress to be the only pass-key to the vaults of the treasury, as the Constitution intended; and all legislation which Con- gress is authorized to pass as necessary and proper to carry this important provision into execution must be directed to the point of fencing the contents of the treasury beyond the reach of any other power than the Congress of the United States. The last provision of this clause was fully commented on in the convention: that the people by public reports from time to time should be made aware of the collections of money as well as of its disbursement. § 325. The last clause of the ninth section reads as fol- lows: “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, ac- cept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State.” The first provision as to title of nobility is correlative with the last words of the following section declaring that no State shall grant any title of nobility; and both of these may be taken in connection with the clause” already consid- ered requiring the guarantee to every State of a republican form of government. This perfect equality of all of the cit- izens of the country with no fixed customs or rank of nobility admitted among them, and none capable of being created by the Federal or State authorities, is the exclusion from both branches of our Federal system of the possibility of mon- 1Const, U.S., Art. I, sec. 9, clause 8. * Art. IV, sec. 4. § 325.] I.EGISLATIVE DEPARTMENT. 665 archy or aristocracy in the form of government, and the guarantee of republican forms of government to every State in the Union as well as to the government of the Union of the States. The latter part of this clause was intended to exclude everything like foreign influence in the form of ex- press bribery or of gifts, which, though more insidious, are not less hurtful, in respect to any one holding an office of profit of trust under them, that is, the United States. What persons hold offices of profit or trust under the United States has been already considered somewhat when it was found that senators and representatives are not officers of the United States, but delegates and representatives of the sev- eral States. But the President, Vice-President and other officers, such as judges, public ministers, the heads of depart- ments, and all subordinate officers, are persons holding offices of profit and trust under the United States. However in- delicate, therefore, it may be for members of either House of Congress to accept presents from any foreign State, they are not prohibited from doing so by this clause of the Con- stitution. This ninth section of the first article is the prohibition or limitation on the previously delegated powers of Congress, or upon any possible implication of power from the preced- ing grants of power; but they were not considered enough to meet the loud demand for something more definite in the shape of a bill or declaration of rights. Accordingly Con- gress, at its first session in March, 1789, passed resolutions proposing amendments to the Constitution, twelve in num- ber, with this preamble: “The conventions of a number of the States having, at the time of their adopting the Consti- tution, expressed a desire, in order to prevent misconstruc- tion or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best in- sure the beneficent ends of its institution.” As a matter of historic record it is therefore true that these proposed amendments were intended to prevent misconstruction or 666 CONSTITUTIONAL LAW. [$325. abuse of its powers by the declaratory and restrictive clauses. The first two articles proposed were never ratified. As limitations upon the powers of the Federal government, it is proper now to consider these amendments, after having considered the original limitations and restrictions imposed in the Constitution itself. That these ten amendments are to be regarded as limitations on the powers of the Federal government, and not upon the powers of the States, has been well settled by a large list of judicial decisions." 1 Barron v. Mayor and City of Paltimore, 7 Pet. 243; Permoli v. First Municipality of New Orleans, 3 How. 589; Fox v. Ohio, 5 id. 410; Withers v. Buckley, 20 id. 84; Twitchell v. Commonwealth, 7 Wall. 321; Anarchist Cases, 123 TJ. S. 131; Bradley v. United States, 98 id. 105; Presser v. Illinois, 116 id. 259; Boyd v. United States, id. 616; Eilenbecker v. District Court, of Plymouth Co., 184 id. 31. CELAE’TER XI. FIRST TEN AMENDMENTS. THE FIRST AMENDMENT. $ 326. The first of the ten amendments is in these words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridg- ing the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the gov- ernment for a redress of grievances.” The first branch of this article is in respect to religion. Several of the States, and notably Virginia, had in their acts of ratification denied the power of the United States under the original Constitution to prohibit, abridge, restrain or modify the liberty of conscience and of the press, and enjoined the same views in a proposed bill of rights. These various propositions from the States resulted in this and the other amendments proposed in the First Congress. The language used is very comprehensive, not only forbidding a law to establish a religion, but any law respecting the estab- lishment of a religion. This may be considered in connection with article VI, clause 3, of the original Constitution, forbid- ding the requirement of any religious test as a qualification for public office. Noris the amendment to be regarded as the concession of a power in Congress as to the matters forbid- den in this clause, which conceded power is to be restricted only by the terms of this clause. The ratification of Vir- ginia just referred to excludes this view, and similar lan- guage in other ratifications confirms it, and the preamble to the Congressional proposal of these amendments is also con- clusive. These were not limitations upon powers granted by the original Constitution, but were inserted, as the Con- 668 CONSTITUTIONAL LAW, [$ 326. gressional preamble expressed it, “in order to prevent mis- construction or abuse of its powers.” In 1887 the Mormon act which disestablished the Mormon Church was passed, and its constitutionality was fully sustained in the case of The Mormon Church v. United States." Congress had no right to establish the Mormon Church under this amendment, nor could a territorial legislature, deriving all its powers from Congress, do that which Congress could not do. This was the ground taken in Congress. In the original bill it had been proposed to carry on the Mormon Church by the ap- pointment of thirteen persons by the President and Senate to co-operate with the church authorities in its management. This would have been a law respecting the establishment of a religion and a direct union of Church and State. The only alternative was the disestablishment of the church and put- ting it, as to the free exercise of its religious views, upon the same footing as all other religious societies. All laws giv- ing special privileges to the Mormon Church were repealed by Congress.” What is an abridgment of religious freedom has been a question of recent adjudication. Mr. Jefferson, following the bill of rights of Virginia of June 12, 1776, drawn by George Mason, drew the Act for Religious Freedom adopted Decem- ber 16, 1785.” Its preamble states with nervous energy, fervid eloquence and logical precision the basis of all religious lib- erty. In that preamble he says: “That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty. . . . It is time enough for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order.” - The civil power may not pass the boundary line which 1 136 U. S. 1. 3 Code of Virginia, ch. 63. 2 Reports H. of R. Nos. 2568, 2735, 1st Sess, 49th Cong. § 326.] JFIRST TEN AMENDMENTS, 669 divides it from the realm of conscience, but conscience must not break over the same boundary to invade the realm of civil power. As long as religion is a matter of the conscience the civil power must not invade it; but when religious con- Science violates the rights of others and disturbs social peace and Order it must be restrained within its own domain, and excluded from the civil realm which it may not control. Accordingly the act of Congress of 1882, which punished Mormons for bigamy, was held constitutional because not abridging religious freedom." And this view is vindicable without reference to the fact that it is a mooted question among them whether their creed enjoins polygamy or only permits it. The next clause forbids the abridgment of the freedom of speech or of the press. By the act of July 14, 1798, Congress passed the celebrated Sedition law, by which inter alia it pun- ished with fine and imprisonment as a public crime the writ- ing, printing, uttering or publishing any scandalous and mali- cious writing against the government of the United States, or either House of Congress or the President, so as to bring them into contempt and disrepute, etc. This produced with its twin measure, the Alien law, such excitement in the country as re- sulted in the overthrow of the administration of John Adams and the election of Mr. Jefferson. They were the cause of the celebrated resolutions of Virginia and Kentucky in 1798, and of their celebrated windication in Madison’s report of January, 1800. In the discussion of the Sedition law, to which reference may be made,” Mr. Madison maintained its unconstitutionality upon the ground of its being an abridg- ment of the freedom of speech and of the press. There were some prosecutions under these laws, and their constitutionality was maintained by some judges, but they were never before the Supreme Court for adjudication. The 1 Reynolds v. United States, 98 *Story's Commentaries on the U. S. 145; Cannon v. United States, Constitution, secs. 1891–92, and 116 id. 55; Murphy v. Ramsay, 114 notes. id, 15. 670 CONSTITUTIONAL LAW. [$326. law of libel, as far as it affects private responsibility to the injured party, was for the States to fix and regulate. Clearly this was outside of the powers of Congress. To abridge the right of the citizen to discuss orally or in writing, and by pub- lication, the public acts of the government and its officers, and the attempt to screen themselves from censure by such a law as the Sedition law, would seem to be too clearly within the prohibition of this clause of the Constitution to need further comment. If that law be constitutional, to what can this amendment, as to the freedom of speech and of the press, look for protection against the powers of Congress? On the law of libel in England, Hallam has a comprehensive state- ment to which reference may be made." By section 3894 of the Revised Statutes of the United States, a penalty was inflicted upon any person who shall knowingly deposit in the mail any letter or circular concerning lotteries, etc. The case of Ee parte Jackson brought up for adjudication the question whether this was not an abridgment of the liberty of the press.” The Supreme Court held that Congress could determine what it would carry in the mails and what it would exclude therefrom; that in this case, as in case of obscene literature, which was prohibited access to the mails, it would not furnish the vehicles for carrying such liter- ature. In a subsequent case, In re Rapier,” this decision was af. firmed, but the court held that the right to transport such ex- cluded matter in any other way would not be forbidden by this law. The case rests simply upon the proprietary right of Congress in the mails. It may be well objected that this inter- pretation of the Constitution is not consistent with its pur- pose. If the postal power and duty be conferred as an essential facility for the transmission of written and printed intelli- gence; if without postal facilities the press of the country, as the medium of information, political and otherwise, be di- 1 Hallam's Constitutional History 3143 U. S. 110. In accord: Hor- of England, ch. 15. ner v. United States, 143 U. S. 207. 296 U. S. 727. § 327.] FIRST TEN AMENDMENTS, 671 verted from the mails, and if Congress refrains from the use of this postal power and duty so as to interfere with the publica- tion of newspapers and other printed matter, is it not an abridgment of the freedom of the press, by refraining from the exercise of power, and the non-performance of public duty, just as great as if it absolutely prohibited the trans- mission? The author, therefore, would consider this ques- tion disconnected with an immoral or criminal use of the mails an open question for reconsideration by the court. The last clause, in reference to the right of the people peace- ably to assemble and to petition the government, etc., has not been the subject of adjudication. This does not prevent interference with the riotous assemblages of the people; where there is no riotous conduct the government cannot interfere. * The right of petition for the redress of grievances is se- cured. There is no provision for action on the part of the person to whom the petition is addressed. It gives no assur- ance that the prayer of the petition shall be granted, or what consideration shall be given it. It simply protects the peti- tioners in their right to get up the petition, circulate it for signatures, and have it presented." As to all of this article it will be observed that in terms it is only a limitation on Congressional power. SECOND AMENDMENT. § 327. The second amendment reads thus: “A well regu- lated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This prohibition indicates that the security of liberty against the tyrannical tendency of government is only to be found in the right of the people to keep and bear arms in resisting the wrongs of government.” The case of Presser 1 Bradley v. Heath, 12 Pick. 163; Vandezie v. McGregor, 12 Wend. Fairman v. Ives, 5 B. & Ald. 642; 145; State v. Burnham, 9 N. H. 34. 2 Federalist, NOS, XXVIII, XLVI. 672 CONSTITUTIONAL LATW. [šš 328, 329. v. Illinois' arose out of an act passed by the State of Illi- nois prohibiting all bodies of men other than the regularly organized volunteer militia of the State from associating and drilling as such. The Supreme Court held that it did not conflict with this amendment, because the amendment is only a limitation of power on Congress, not on the States. THIRD AMENDMENT. § 328. “No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” This prohibition finds its original in the Petition of Right Of 1628.” FourTH AMENDMENT. § 329. The fourth amendment is as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon prob- able cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” w The origin of this amendment may doubtless be found in events that occurred in England about the year 1763. A practice had grown up in the office of the secretaries of the cabinet ever since the Restoration of issuing general war- rants, arresting, without naming any persons in particular, printers, publishers and authors of obscene and seditious libels as were particularly specified in the warrant. These practices continued until 1763. They were brought up for adjudication before the King's Bench in Money v. Zeach,” and were adjudged illegal and void for uncertainty. It was held that a warrant must be issued by a magistrate upon the oath of an accuser, stating the name, time, place and nature of the offense with reasonable certainty.” In Boyd v. United 1 116 U. S. 252. 33 Burr. 1742. *Stubbs' Select Charters, 515–17. 4 Ex parte Burford, 3 Cr. 447; 9 $ 330.] JFIRST TEN AMENDIMENTS. 673 States' a suit was brought for a penalty under the Customs acts. The law provided that the prisoner must produce the in- voice in court for the inspection of the government attorney or else be taken to confess the offense. This was held a viola- tion of this amendment. It is equivalent to compulsory pro- duction of papers, and it violates a subsequent amendment in compelling the accused to produce evidence against himself. This case was relied on in the case of Spies v. United States,” the Anarchist case, where in a State court the papers of the accused had been seized without warrant, contrary to this amendment. The court decided that this amendment did not apply to such a case, but limited only the powers of Con- gress and not of the States. FIFTH AMENDMENT. § 330. The fifth amendment is in these words: “No per- son shall be held to answer for a capital, or otherwise in- famous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” The first clause of this amendment involves the solution of an important question. The offenses to which the provision refers are in two classes: first, capital; second, otherwise in- famous crimes. The first needs no exposition; the second requires the interpretation of what is meant by “infamous crimes.” The word “otherwise ’’ shows that a capital crime is infamous; but what is an infamous crime other than a capital crime 2 State Trials, 817, Algernon Syd- 1 116 U. S. 616. ney's Case; Entic v. Carrington, 2 * 123 U. S. 131. Wilson, 275. 43 674 CONSTITUTIONAL LAW. [$ 330. Two late cases have involved the decision of this question. They decided that any offense was infamous for which the penalty was death or imprisonment in the penitentiary with or without hard labor. The place makes the infamy.” It was not decided, but it is a grave question, whether im- prisonment in a jail with or without hard labor as the pen- alty for the offense would not be infamous. Could Congress. by merely changing the place with an equal deprivation of liberty make an imprisonment in jail less infamous than im- prisonment in the penitentiary. As to this, ideo quare. Story intimates that these words mean all offenses above the grade of misdemeanor. The provision against “twice in jeopardy” is a great privilege secured by the common law.” The next question is as to the indictment or presentment of a grand jury. This excludes the prosecution of such of. fenses by information or otherwise than by presentment and indictment of a grand jury. In Bain’s Case” the grand jury found an indictment for an infamous offense. A demurrer to the indictment was submitted on a formal matter; where- upon the indictment was amended by the court. The trial proceeded and the accused was convicted and sentenced. He obtained a writ of habeas corpus from the Supreme Court, which held that the indictment on which he was tried was not the indictment found by the grand jury, hence the con- viction was void and the prisoner was discharged. Again, the exception to this stringent provision is found in “cases arising in the land or naval forces.” Construing this clause with the clause “to make rules for the govern- ment and regulation of the land and naval forces,” “it is ob- vious that it was intended to leave the trial of those who were in the army or navy to be tried for any such infamous offense according to the rules and regulations of war provided by Congress. The further exception is in cases arising in the 1 Ex parte Wilson, 114 U. S. 417; 3121 U.S. 1; Thompson v. United Mackin v. United States, 117 id. 348. States, 155 id. 271. *4 Blackstone's Commentaries, * Const. U. S., Art, I, Sec. 8, clause 375; Hawk. P. C., Book 2, ch. 35. 14. § 331.] FIRST TEN AMENDIMENTS. 675 militia when in actual service. Comparing this with the clause “for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions,” and with the clause making the President commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States, it is evident that those who are in the militia when in actual service of the United States are tri- able by the rules and regulations of war, and are not within the operation of this amendment. In a late case the question was raised whether the words “in time of war or public danger” should be applied to the words “cases arising in the land or naval forces,” or should be confined in their application to the words “or in the militia when in actual service.” It was decided by the cir- cuit court of the United States for Virginia against this ob- jection of one in the army or navy to trial otherwise than by presentment and indictment of a grand jury, except “in time of war or public danger.” The Supreme Court, upon appeal, decided that those words in time of “war or public danger” applied only to the militia, who could only be called into the actual service of the United States to repel invasions and suppress insurrections, or to enforce the law, and did not apply to, and were disconnected from, the words “cases arising in the land and naval forces.” § 331. Again, “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” These terms were those used in the common law, and in- clude cases that involve liberty, which, indeed, is a part of life, and when taken away is, pro tanto, a deprivation of life, and prevents the government from subjecting the ac- cused to a second trial after the previous conviction or acquittal. The power thus forbidden is one of unmitigated evil. If the government might try and try again to convict, the ultimate conviction of the accused would be assured. This does not mean to forbid a second trial where the first *Id, Art, I, Sec. 8, clause 16, 2Johnson v. Sayre, 158 U. S. 109. 676 CONSTITUTIONAL LAW. [$ 331. has resulted in a failure of the jury to agree, nor in the case of a faulty indictment, because in neither case is the accused in jeopardy." In Bain’s Case, supra, the accused was tried again because he had not been in jeopardy—that is, tried in the only way in which he could be tried; that is, by a regular indictment.” - Again, “Nor shall be compelled in any criminal case to be a witness against himself.” In Boyd v. United States” we have referred to the requirement that a defendant should produce his books, or in the alternative be adjudged to con- fess his crime, and to the fact that this requirement was held to be repugnant to this clause of the Constitution. This case also decided that the requirement was an offense against the fourth amendment. A very stringent decision was ren- dered in the case of Counselman v. Hitchcock,” under the Interstate Commerce Law. An officer of a railroad was compelled to answer a question in respect to the business of his road which he claimed tended to criminate himself. It was argued that there was no criminal case pending, and that therefore the clause did not apply. The court, upon an elaborate review of a number of cases, decided that he was not compelled to give testimony which might lead to a criminal prosecution of himself or to any procedure in which he would be endangered. Congress thereupon passed the act of February, 1893, which authorized the exemption of the party called from prosecution in respect to the subject- matter of his testimony. A very late case involving this question has been decided.” Again, “Nor be deprived of life, liberty or property with- out due process of law.” This prohibition upon the Federal power has been followed by the fourteenth amendment, which prohibits a State from depriving any person of life, liberty or property without due process of law, and comment |United States v. Perez, 9 Wheat. 3 116 U. S. 616, 579. 4 142 U. S. 547. *Simmons v. United States, 142 5 Brown v. Walker, 161 U. S. U. S. 148. See also Craemer v. Wash- 591. ington State, 168 id. 124. § 332.] IſIRST TEN AMENDMENTS, 677 upon this part of this amendment will be deferred until we reach the fourteenth amendment. § 332. Again, “Nor shall private property be taken for public use without just compensation.” This is part of the eminent domain of every government. It is the sovereign power of the Body-politic to subject to public use property rights of private members of the Body-politic upon just com- pensation. It is in effect the same power which calls a man to give his life or limb or liberty in defense of his country. If his life may be subjected why not his property 2 This clause refers only to property rights, and limits this sover- eign power by two important phrases. It must be taken for public use, and even for this only on just compensation. It includes every right in property of which a citizen may be deprived. A leading case is Eaton v. Railroad Co." In that case it was shown that a hill which protected A’s land from being flooded by a river intervened. The hill did not belong to A. The railroad company cut through the hill for its road, and through the aperture the flood came upon A's land. Held, that it took away his property rights and he must be compensated.” A taking which occupies the land of A without taking the fee, or by occupation or condemna- tion of a part of A's land will injure the residue, would prob- ably be held to be a taking under this clause.” Land taken for One use cannot by a trick be devoted to another use which supersedes the former, without compen- sation.” And where an easement is taken in land, and sub- sequently the public takes the fee, the owner must have added compensation." In all these cases the judicial proceeding of 1 57 N. H. 504, 2 Accord: Wynehamer v. The Peo- ple, 13 N. Y. 378, 433; Thompson v. Androscoggin River Imp. Co., 54 N. H. 645; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 320. 3 Tuckahoe Canal Co. v. Tuckahoe & James River R. R. Co., 11 Leigh, 42; Newman v. M. E. R. Co., 118 N. Y. 618; Wilson v. Railroad Co., 59 Ill. 273; Shipley v. B. & O. R. R. Co., 34 Md. 336, cited in 1 Beach on Public Corporations, $ 686. * Matter of City of Buffalo, 68 N. Y. 167. 5 Pierce v. Drew, 136 Mass. 78; Julia Building Ass’n v. Bell Tele- phone Co., 88 Mo. 258, 678 CONSTITUTIONAL LAW. [$ 333. condemnation is required, and notice of the proceeding to the owner is essential." Compensation need not be paid be- fore condemnation, in case of a State, or perhaps in case of a municipality; but as to private parties, railroad corpora- tions, etc., it is different. In the latter case the payment must precede or be contemporaneous with the taking. These questions are very elaborately discussed, and the cases upon them, in Dillon on Municipal Corporations,” and by Beach on Public Corporations.” The Federal government, under this clause, which recog- nizes and limits its eminent domain for all purposes related to the necessary and proper execution of its powers in re- spect to the use, holding and title to the property of the citi- Zen, may take what is necessary and proper for the execution of its powers, but can take only for public use and upon just compensation; and while Congress takes the initiative in this matter, and decides primarily whether it is a public use, it is subject to judicial decision as to whether it is a public use, and in respect to what is just compensation upon a full hearing, to which the owner shall be a party. THE SIXTH AMENDMENT. § 333. The sixth article of amendment is in these words: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his de- fense.” It is appropriate to consider this article in connec- tion with an article in the original Constitution,” which reads * Huling v. Kaw Valley Ry. & 3 Vol. I, § 686. Imp. Co., 130 U. S. 559. 4 Const. U. S., Art. III, sec. 2, 2$991–993. Clause 3. § 333.] FIRST TEN AMENDMENTS. 679 thus: “The trial of all crimes, except in cases of impeach- ment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have di- rected.” The fifth amendment, as has been seen, was directed to the mode in which the party shall be accused, and the way in which the grand jury makes the accusation. This sixth article, and the one considered with it, provide as to the trial of the party under the accusation and the conduct of the criminal prosecution. 1st. There is secured the right to a speedy and public trial. Speedy refers to the necessity of preventing along imprison- ment of an accused party before trial, but does not define the mode in which this speedy trial may be secured. In some of the States, e.g., Virginia, if a party's trial is de- ferred at the instance of the Commonwealth for longer than three terms of the court, he will be discharged. The trial must not only be speedy but it must be public. This is to bring the power of public opinion to bear against despotic procedure for the conviction of the accused, and to insure a trial where all his rights will be conserved. Again: By whom shall the trial be had 2 By an impar- tial jury. Jury trial has been declared to be the palladium of English liberty; and it is the great security of Ameri- can liberty. This is subject to the exception provided in the fifth amendment as to cases arising in the army, navy or militia. In all other cases jury trial is secured to the accused. 2d. It must be an impartial jury of the State where the crime was committed. This is by the terms of the article in the original Constitution; but the sixth amendment is more particular. It must not only be a jury of the State, but of the district wherein the crime shall have been committed, which district shall not be a district provided by a law sub- sequent to the offense, but a district which shall have been previously ascertained by law. This is intended to prevent 9 680 CONSTITUTIONAL LAW. [$ 333. the choice of a jury from a district provided by ea post facto legislation, and which might thus do great injustice to the accused. Further, upon such trial he must be informed of the nature and cause of the accusation. If the crime is not committed in any State, as felony on the high seas or piracy, then Congress has power, before the offense is committed, to determine the place at which the trial of such criminal shall be held." Upon his trial he must be confronted with the witnesses against him. The Supreme Court decided in Mat- toa, v. United States” that this clause was not violated by the use upon the second trial for the offense of the copy of the testimony of a dead witness given upon the first trial when the witness was confronted with the accused. To use it upon the second trial was held to give to the accused the full ben- efit of this provision. Three judges dissented. 3d. The accused shall have compulsory process for ob- taining witnesses in his favor. This was to correct a great grievance at the common law, which forbade the accused to exculpate himself by the testimony of any witnesses. The House of Commons soon after the accession of the House of Stuart to the throne had a bill passed which affirmed the right to have process for witnesses for as well as against the accused; and in the seventh of William III. and in the reign of Queen Anne the rule was extended to all cases of treason and felony.” The last clause of this amendment removes another evil practice of the common law which denied the prisoner the assistance of counsel. This denial was based upon the idea that the judge should be counsel for the prisoner—an idea which in practice was a cruel mockery.” 1 Id., Art. III, sec. 2, clause 3. 4 Story on the Constitution, Sec. 2 156 U. S. 237. 1787; Blackstone's Commentaries, 34 Blackstone's Commentaries, 355, 356; 1 Tucker's Blackstone, 359,360; 2 Hale's Pleas of the Crown, Appen., 305; Rawle on the Consti- 283; 1 Tucker's Blackstone, Appen, tution, supra. See Anderson's Case, 304,305; Rawle on the Constitution, 172 U. S. —, not yet reported. 129, 130; Story on the Constitution, 1785–86, § 333.] FIRST TEN AMENDMENTS, 681 It must be confessed that these provisions are rather dec- larations of rights than well-established securities of liberty. They require to be supplemented by legislative provisions, and by the enlightened administration of justice by an in- dependent judiciary, or sustained by a sound and liberty- loving public sentiment of the people of the country. Mil- ligan’s Case' was one in which these fifth and sixth amend- ments were set at naught by the legislature and the President, and in which the right of the accused to an accusation by a grand jury and to a trial by an impartial jury of the State and district was upheld by a bare majority of the Supreme Court of the United States. Mrs. Surratt was unconstitutionally tried by a court-mar- tial against the imperative requirement of these two amend- ments and hung in sight of the capitol upon a judgment of a court-martial and in defiance of her petition for a habeas corpus which the military power resisted. Cases under this sixth amendment are referred to in the note.” In Twitchell v. Commonwealth,” the Supreme Court de- cided that these two amendments had no application to the States, but only to the Federal government. In Miller v. United States “it was held that the confiscation acts were not in conflict with the fifth and sixth amendments. The case of United States v. Cruikshank" discusses the provision as to being informed of the nature and cause of the accusa- tion. In the case of Callan v. Wilson" the provision that the trial of all crimes should be by jury was held to mean not only felonies, but misdemeanors involving the deprivation of liberty, and that these provisions are in force in the Dis- trict of Columbia. 1 4 Wall. 2. pervisors of Albany, 121 id. 540; 2 Twitchell v. Commonwealth, 7 Allis v. United States, 155 id, 117, Wall, 321; Miller v. United States, 37 Wall. 321. 11 id. 268; United States v. Cruik- 411 Wall. 268. shank, 92 U. S. 542; Stanley v. Su- 692 U. S. 542, 6 127 U. S. 540, 682 CONSTITUTIONAL LAW. [$ 334. In the case of Mattoa, v. United States, supra, the court held that all these provisions of the amendments are to be interpreted in the light of the law as it existed at the time it was adopted, and as securing to every individual such rights as he possessed previously as a British subject, and as his ancestors had inherited from the days of Magna Carta. The case of In re Ross' was a singular decision—that an American citizen in a foreign land may be tried by a con- sular court situated in the foreign country, established under an act of Congress, and that such citizen may be condemned to death by such court without accusation by indictment of a grand jury, or trial by an impartial jury of the country. The doctrine held by the court was that the Constitution had no operation outside of the United States. It would seem to follow logically that Congress, which derives all of its powers through the Constitution, could not pass a law which would have any operation outside of the United States any more than the Constitution does, and therefore that such law providing for the trial, if a violation of the Constitution, is null and Void. The author may therefore suggest the Query as to the soundness of this decision. THE SEVENTH AMENDMENT. § 334. The seventh amendment is in these words: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re- examined in any court of the United States, than according to the rules of the common law.” In the original Constitution (art. III, sec. 2, clause 2) it is provided: “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” It appears from the Federalist” that great clamor was 1140 U. S. 456. 2 NO. LXXXI. § 334.] FIRST TEN A MENDIMENTS. 683 made against this provision, lest the appellate power of the Supreme Court would set aside the decision on a ques- tion of fact by a jury; and in the same book," the appre- hension, which was strongly expressed by the opponents of the Constitution, that there was no security in that instru- ment for the trial by jury of civil cases, though there was as to criminal cases, was met by a very able discussion of the objection. We have seen that these objections to the orig- inal Constitution were the Occasion of the first ten amend- ments. It will be seen how this seventh amendment meets this objection which had been made to the original Consti- tution as to jury trial in civil cases. The clause in reference to the Supreme Court had recognized cases in law and equity as within the judicial power. This obviously referred to the distinctive jurisdiction of the common-law courts and the equity courts existing in England, and which all the thirteen States had adopted as a part of their own system. As the equity system did not recognize jury trial as a part of its machinery, the revision on appeal by the Supreme Court as to law and fact was really the exercise by the ap- pellate jurisdiction, in respect to equity causes, of the power of granting new trials and the like in causes at common law. But this seventh amendment put an end to all criticism upon this point. It provides that in suits at common law (obvi- ously excluding suits in equity), where the value in contro- versy shall exceed $20, excluding cases below that sum, which might be tried by a civil magistrate, the right of trial by jury shall be preserved. This met the objection that civil juries were not secured as a part of the judicial system of the TJnited States. The amendment goes further, and provides that no fact tried by a jury shall be otherwise re-examined in any court of the United States, supreme or inferior, except according to the rules of the common law; that is, that a ver- dict may be set aside and a new trial granted, and the prac- tice of the common-law courts as existing prior to the Consti- 1 No. LXXXIII. 684. CONSTITUTIONAL LAW. [$ 334. tution should not be set aside by this amendment. This amendment, therefore, clearly allows trials in equity causes without jury, and suits at common law with jury, re-exam- inable according to the rules of the common law, but not otherwise. t * The foregoing question arose in the Supreme Court in the case of Elmore v. Grymes," where a peremptory nonsuit against the will of the plaintiff had been ordered in a circuit court. The appellate court reversed the judgment, holding that the plaintiff had a right to have his case submitted to the jury. In Parsons v. Bedford” the same doctrine was applied to a judgment in the Louisiana district court, which was rendered according to a civil-law proceeding, and held to be within the meaning of the terms of this amendment “suits at common law,” and it was held that the Supreme Court could not re- examine the facts if tried by a jury in the Louisiana district court by the civil-law proceeding. In Castle v. Bullard” these cases were approved; and so in McElrath v. United States “it was held that a suit against the government could be tried in the court of claims with- out the intervention of a jury. Such suits are not suits at common law within the meaning of the amendment. In Baylis v. Insurance Co." it was held that without a waiver of right of trial by jury a court cannot substitute itself for a jury, pass upon the effect of the evidence and render judgment thereon. This would violate the seventh amendment, which the court has always “guarded with jeal- ousy.”" The decision of the court in the above case was distin- guished from that of ſtandall v. B. dº O. R. R. Co., in which the court said if the court had directed a verdict for the defendant on the ground that the evidence with all the in- 11 Pet. 469. Accord: D’Wolf v. 4 102 U. S. 426. Rabaud, Id. 476. 5 113 U. S. 316. 23 Pet, 433. 6 Randall v. B. & O. R. R. Co., 109 323 How, 172. |U. S. 478, s 334.] FIRST TEN AMENDMENTS, 685 ferences that the jury could justifiably draw from it was insufficient to support a verdict for the plaintiff, so that such a verdict if returned must be set aside, it would have followed a practice sanctioned by repeated decisions of the court. That would have allowed trial by jury, subject Only to be re-examined according to the rules of common law. The question of how far this amendment will allow a judge to express an opinion on the facts to the jury, or direct a ver- dict according to his opinion, has already been considered by the Supreme Court in several cases, the last of which was the case of Allis v. United States," in which the court held that the judge may express his opinion as to the weight of the evidence, and may recall the jury after deliberation for a time to ascertain their difficulties, and to make proper efforts to assist them in their conclusions. That was a crim- inal case. The same doctrine was strongly asserted in Sºm- anons v. United States,” where the court (citing Vicksburg, etc. JR. R. Co. v. Putnam,” United States v. Railroad Co.," and Jovejoy v. United States") says: “It is so well settled, by a long series of decisions of this court, that the judge pre- siding at a trial, civil or criminal, in any court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opin- ion upon the questions of fact which he submits to their de- termination,” etc. In Sparf and Hansen v. United States" it was held that in the courts of the United States the jury in criminal cases are bound to receive the law from the court, and apply it as given by the court, subject to the condition that by a gen- eral verdict the court may determine both law and fact upon the issue submitted to them; and while the court may in- struct as to the legal presumptions from a given state of 1155 U. S. 123. 4123 U. S. 113. 2142 U. S. 155. 5 128 U. S. 171. 3 118 U. S. 546. 6156 U. S. 57. 686 CONSTITUTIONAL LAW. [$ 335. | facts, it must not by peremptory instructions require the jury to find the accused guilty of any offense. In Allison v. United States' the court charged the jury as to the weight to be attributed to the evidence of the accused in his own behalf, and the decision was reversed because of it, citing Hicks v. United States.” It may be open to serious ques- tion whether the latitude allowed to the court in some of the above cases in instructing the jury on the weight of evidence actually given will not lead to great injustice, such as was rectified in the case last cited, but which may be be- yond rectification in some cases, and thus the right of trial by jury be destroyed under the strong and dominating in- structions of the court. THE EIGHTH AMENDMENT. § 335. The next amendment is in these words: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” t This amendment was derived from the Bill of Rights of 1689, which reads, “Excessive bail ought not to be required, or excessive fines imposed, nor cruel and unusual punishments inflicted.” The explanation of the provision as to excess- ive bail is found in a previous clause of the Bill of Rights. The purpose of this is obvious. If bail disproportioned to the means of the accused be required, it will result that he will be imprisoned for lack of means, while another's ability to furnish it may avail to release such other person. The rich may go free, the poor must be imprisoned. So on judg- ment of fine and imprisonment until the fine is paid, the lack of means of the convict to pay the fine might result in his imprisonment, when the man of wealth would avoid imprisonment by the payment of a fine. This, therefore, ap- plies not only to the legislative but to the judicial depart- 1160 U. S. 203. 3 Stubbs' Select Charters, Appen, 2150 U. S. 442. | 525. § 336.] FIRST TEN AMENDMENTS, 687 ment. The discretion of neither should be so used as to demand excessive bail or to inflict excessive fines. In Per- wear v. Commonwealth' this amendment was held to apply only to the Federal government. The question has come up to the Supreme Court from State courts in reference to electrocution, as to whether it was not cruel and unusual punishment. The court again decided that this and the kindred amendments were limitations upon Federal power, and not upon State power.” THE NINTH AMENDMENT. § 336. The ninth amendment is in these words: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It has been already observed that one of the most serious objections urged against the original Constitution was that it did not contain a bill of rights. Mr. Hamilton, in the Pederalist,” argued with great force that a bill of rights in the Federal Constitution was really out of place, because this Constitution was one to create a government with limited and enumerated powers; that a bill of rights was proper in respect of a government which had unlimited power over the rights of the people under its control; but why should there be a bill of rights in a Constitution where the power was so limited by enumeration as that the power of the government could not touch such rights? He says: “But a minute detail of particular rights is certainly far less ap- plicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to one which has the regulation of every species of personal and private concerns.” He further urged that these were dangerous as well as unnecessary. “They 1 5 Wall. 475. 8 No. LXXXIV. 2 In re Wood, 140 U. S. 278; Mc- Elvaine v. Brush, 142 id. 155. 688 CONSTITUTIONAL LAW. [$ 336. would contain various exceptions to powers not granted; and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for in- stance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restric- tions may be imposed. I will not contend that such a pro- vision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations con- cerning it was intended to be vested in the national govern- ment.” There were, as we have seen, certain limitations upon the powers of the Federal government in respect to ea post facto laws and bills of attainder, to which we have referred al- ready. The inhibition of these certainly furnished an argu- ment that these powers might be implied for Congress had they not been inhibited. In order to exclude any such in- ference this amendment was adopted, and, in the language of Judge Cooley,” “However unfounded such a fear might be, there could be no harm in affirming by this amendment the principle that constitutions are not made to create rights in the people, but in recognition of, and in order to preserve them, and that if any are specially enumerated and specially guarded, it is only because they are peculiarly important or peculiarly exposed to invasion.” This amendment, therefore, was meant to exclude the in- ference that the Federal government could touch any of the great fundamental rights of the people, because there was no special inhibition of power to the Federal government to 1 Cooley's Constitutional Law (2d ed.), 84. $ 337.] FIRST TEN AMENDIMENTS. 689 invade them. The fact that some are guarded against the power of the government is therefore not to be the basis of an argument that others not so guarded may be invaded by its power. The maxim Fºpressio univs ea clusio est alterius, therefore, does not apply to the rights of the people in refer- ence to the powers of the government of the United States. The language of Judge Story in accordance with these views may be quoted. He says:" “This clause was manifestly in- troduced to prevent any perverse oringenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its nat- ural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights.” THE TENTH AMENDMENT. § 337. The amendment is in these words: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States re- spectively, or to the people.” So much has been said as to this clause that but little need be said now. In the Articles of Confederation it was de- clared that each State retained its sovereignty, freedom and independence and every power, jurisdiction and right which was not by this confederation expressly delegated to the United States in Congress assembled. It is said that in Con- gress, when this amendment was proposed, the insertion of the word “expressly” before the word “delegated ” was proposed as an amendment, and so in the Virginia conven- * Story on the Constitution, Sec. er's Blackstone, Appen, 307, 308, 1905. 309. 2 Federalist, No. LXXXIV; Tuck- 44 690 CONSTITUTIONAL LA W. [$ 337. tion. But the argument that it is impossible to confine a government to the exercise of express powers, and that there must be powers necessarily implied, was sufficient to reject the amendment. And, as we have seen, the adjudications of the courts have uniformly followed this strong language of Judge Story in Fairfaa, v. Hunter,” “The government, them, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.” See also Gibbons v. Ogden,” McCul- loch v. Maryland,” and cases cited ante. These decisions justify this analysis of this important amendment: First. The Federal government has no powers but those delegated by the Constitution. It has no inherent powers, but only those derived from the Constitution as expressly delegated or granted by necessary implication. Second. Those not so delegated, unless prohibited to the States, are reserved to the States respectively, or to the people. Reservation of powers is the basis of the title of the States or of the people of the States to political powers under the Constitution. They are not secured to the States or to the people by virtue of the Constitution: they are inherent in the people of the States, and unless delegated to the United States, or by their constitutional act prohibited to them- selves, they remain with the States respectively and the people. The word “reserved ” in the Constitution is syn- onymous with the word “retained” in the Confederation. This amendment, therefore, differentiates the powers of the United States and the powers of the States. The former are derived by the United States through delegation from the States. The latter, the reserved powers, remain in and are retained by the States, because not delegated or pro- hibited. The words “to the States respectively or to the people” 11 Wheat, 326. 84 Wheat, 416, 29 Wheat, 1. § 337.] FIRST TEN AMENDMENTS, 691. require a word of explanation. At the time of the adoption of the Constitution in 1789 the States were bound by the Articles of Confederation. The several Constitutions had by express grant of the people of the States as separate Bodies- politic vested in the State governments a number of powers, while others not granted to the Congress of the Confederation, or granted to the State governments, were retained by each State. By the Constitution of the United States a number of the powers, e.g., regulation of commerce, laying of duties, im- posts, etc., which were under their several Constitutions wested in the State governments, were taken from the State govern- ments and delegated to the United States by the Constitution of 1789. The States intended that all the powers wested by their several Constitutions in the State government should be retained and exercised by that government, except such as by the Constitution wested exclusively in the United States or by contractual agreement were prohibited to the States. The consequence is that it is not only natural, but necessary, that this amendment should declare that the pow- ers not delegated to the United States, and not prohibited to the States, should still remain with the several State gov- ernments or with the sovereign people of each State. But, e converso, they divested the State governments of the pow- ers given them by the respective State Constitutions, in so far as by the Constitution of 1789 those powers were exclu- sively delegated to the United States. Cases containing these views might be cited without number." In the case of United States v. Cruikshank,” Chief Justice Waite uses this emphatic language: “The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people.” This closes the review of the delegated powers of Con- 1 Collector v. Day, 11 Wall, 113; 292 U. S. 551. TJnited States v. Cruikshank, 92 U. S. 549, 692 CONSTITUTIONAL LAW. [$ 337. gress, and the express limitations upon those powers in the original Constitution and in the first ten amendments, all of which, by a series of decisions already cited, apply exclu- sively to the Federal government, and in no case to the gov- ernment of the States." 1 Barron v. Baltimore, 7 Pet. 244; 7 id. 321; The Justices v. Murray, 9 Smith v. Maryland, 18 How. 71; id. 274; Edwards v. Elliott, 21 id. Purwear v. Commonwealth, 5 Wall. 532; Walker v. Sauvinet, 92 U.S. 90. 475; Twitchell v. Commonwealth, CEIAPTER XII. THE EXECUTIVE DEPARTMENT, § 338. In the orderly arrangement of the Constitution We have already seen that the first article applies to the Leg- islative Department, and the powers delegated to it by the Constitution. This second article applies to the Executive Department, and the powers delegated to the President as the officer in whom the executive power shall be vested. The first article is prefaced with the language, “All legisla- tive powers herein granted shall be vested in a Congress of the United States.” The second article is prefaced by the declaration, “The executive power shall be vested in a President of the United States of America.” We will now take up this article, clause by clause, and attempt to expound its meaning. We have already referred to the general purpose of the convention to conform the organism of the Federal government to the familiar canon of Baron Montesquieu, requiring the complete separation of the three departments as an essential security to the liber- ties of the people. It has also been seen that in the fram- ing of the portions of the Constitution relating to the Legis- lative Department, it was intended to grant to the Congress of the United States legislative powers alone. It will now be seen on the threshold of the article in respect to the Executive Department that “the executive power shall be Wested in a President of the United States of America.” Whatever might be considered the powers thereafter granted to the President in any other Constitution or system of government, or however the powers granted in the first article to Congress, or in the third article to the Judicial Department, might be considered under any other system of government than our own, it is obvious that the Con- 694 CONSTITUTIONAL LAW. [$ 338. stitution intended to vest in the President of the United States the executive power, and none other; and that the powers enumerated in the second article are to be regarded as in the "minds of the framers of the Constitution as execu- tive powers, and all others enumerated in the other articles as not executive powers. It has been said that the power to declare war is an executive power, because it is vested in the King of England, who is the executive of that kingdom; but it is certainly not true under the Constitution of the United States that the power to declare war is an executive power, and it is certainly true that it is only a legislative power. This first sentence, therefore, in this article is the key to the whole article. Again, we think it is clear that the incidental powers which may be necessary and proper to carry into effect the powers vested in the Executive Department by the Constitu- tion are legislative powers, and not executive, because the seventeenth clause of the eighth section of the first article gives to Congress the power—the legislative power—to sup- ply the means necessary and proper for carrying into execu- tion the powers vested in the Executive Department. It would seem indeed that while the express powers wested in the Presi- dent are not in any degree within the control of the legisla- tive power, yet where an executive power needs co-efficient means for carrying it into execution, those means are not executive powers at all, but are to be supplied by the legis- lative powers of Congress. It is provided in section 1, clause 1, of article II, that the President shall hold his office during a term of four years. The office of President is, therefore, a constitutional office. He is by the Constitution an officer of the United States as well as the President. In this respect the President and Vice-President differ from senators and representatives in Congress. The latter, as we have seen, are not officers of the United States at all; they are senators and representatives of the respective States. The two officers mentioned hold their offices during a term of four years. This does not mean that § 889. EXECUTIVE DEPARTMENT: 695 they shall hold the office or exercise its duties for a period of four years, but the term of office shall be four years; and, therefore, General Washington entered upon the duties and the execution of his office on the 30th of April, 1789; but his second term of office began on the 4th of March, 1793, and not on the 30th of April, 1793. § 339. The manner of electing the President and Vice- President is thus prescribed." As we have seen, the Presi- dent is to be elected primarily by electors. He is not elected by a direct vote of the suffragans of the States. He is elected by the votes of electors, who may be chosen or appointed by the suffragans of the States or otherwise. Let us see how this is provided for. The electors are to vote for the President, but who are to appoint the electors? “Each State shall appoint.” The power of appointment is in the individual State. If it is asked what is the meaning of the word “State,” the question is easily answered. It means the State—the Body-politic, as distinct from the government and the departments thereof, because these words are fol- lowed by this clause, “in such manner as the legislature thereof.” (that is, the legislature of the State) “may di- rect.” The legislative organization is the instrument through which the State as a Body-politic acts in the appointment of electors. Shall appoint whom? “A number of electors.” How many ? “Equal to the whole number of senators and rep- resentatives to which the State may be entitled in the Con- gress.” A State thus appoints electors equal to the number of Senators and representatives that the same State is en- titled to in Congress. This sentence makes the States the source, as we have seen, of all legislative and all executive power in the government of the United States. Let it be noted that the basic principle of compromise of the related powers of the States as co-efficient Bodies-politic and as Bodies-politic according to their numbers, which settled the constitution of the Senate and the House of Representatives 1 Art. II, Sec. 1, clause 2. 2 696 CONSTITUTIONAL LAW. [$ 340. as branches of the Congress, by giving equality of repre- sentation to the States in the Senate and representation ac- cording to numerical strength in the House, was carried out in the constitution of the Executive Department by combin- ing in one the dual elements of statehood represented in the two.Houses, and making each State potential in the election of the executive by combining its powers as an independent State, and its powers according to numbers. y The clause proceeds, “But no senator or representative, or person holding an office of trust or profit under the United States shall be appointed an elector.”" This clause is suggestive of what is just above stated, that neither a sen- ator nor representative is a person holding an office of trust or profit under the United States; such hold under the State represented by them, not under the United States. This ex- cludes all members of Congress from having anything to do with the election of President. It makes the President entirely independent of Congress and of its members, and divorces these from any part in the election of the executive. It also excludes all persons in the pay of or in subordination to the United States government from taking part in the election, which is intended to be free from all such influences, and to be controlled only by the free voice of electors ap- pointed by the States in the manner prescribed. - § 340. What is the significance of “in such manner as the legislature thereof may direct?” If the legislature chooses, may it not direct the appointment to be made by popular vote, or by the legislature, or by one branch of the legislature, or by the Governor P Is there any restriction upon the State or its legislature as to the manner in which the State shall appoint these electors? It would seem not. Until the year 1860, the legislature of South Carólina di- rected the election of its electors by the legislature itself; and it is further to be noted that the manner of appointment so directed is nowhere to be altered or established by any other instrumentality, as was provided in the case of the 1 Federalist, No. LXVIII, § 341.] EXECUTIVE DEPARTMENT. 697 time, place and manner of holding elections for senators and representatives." A State may therefore appoint electors or refuse to appoint, and in any manner that it may direct by its legislature, nor is there power which can control or nullify its action. § 341. In a former part of this work the nature of the executive functions and of the organization of the Executive Department has been discussed in connection with the con- sideration of the subject of government. It will therefore not be necessary to say anything upon that subject here. It is only necessary to say that the Executive Department was established without any advisory council or other limita- tion upon the power of the President; but it is obvious that the vesting of the executive functions in one man with- out limitation upon his personal will, determined in secret, Without debate or public discussion, and with no appeal, was a perilous investiture of power, which naturally made the framers of the Constitution careful about the limitations upon it. The debates in the Constitutional Convention have been reported by Mr. Madison, and may be referred to as instructive upon the purposes of the framers of the Consti- tution.” Whether the executive should be singular or plural was first debated. The argument in favor of its unity was that it secured energy and responsibility; energy by reason of singleness of determination, and responsibility of the one, which would be divided if the executive be plural. The plan of a single executive was adopted by a vote of seven States to three.” The question arose whether there should be a coun- cil attached to the Executive Department. It was argued that even the royal executive of Great Britain had a cab- inet to advise him. Mr. Randolph, in his eighth resolution, had proposed that the executive and a convenient number of the national judiciary should compose a council of revision.* 1 Art. I, sec. 4, clause 1. 3 Id. 783. *Madison Papers, 762. 4 Id, 733. 698 CONSTITUTIONAL LAW. [$ 341. The use of the judiciary for any such purpose was strongly reprobated by Messrs. Gerry and King, largely on the ground that the judiciary, by reason of their judicial functions, could set aside laws because at variance with the Constitution, and should not therefore take part in their original enactment. This proposition was therefore postponed, by a vote of six States to four," to take up a proposition giving the veto power to the executive. The mode of the election of the executive was the subject upon which the convention seemed to have been very much at Sea. Wilson, of Pennsylvania, suggested an election by the people at large. Sherman was for appointment by the legislature.” Randolph's seventh resolution provided for an election by the National Legislature. The term of the office was fixed by a vote of five States to four, and one divided, at seven years.” The term of seven years was adopted with a view to ineligibility thereafter, as against a term of three years with re-eligibility. Wilson then proposed that the ex- ecutive be elected by the qualified voters, who should elect the executive by ballot. This was rejected by a vote of two States to eight, and the election by the National Legislature for a term of seven years was agreed to by a vote of eight States to two. It was then agreed to make the executive ineligible after seven years by a vote of seven States to two, One State divided. The question of the power of the executive negative then came up. Ten States voted against the absolute negative, and against the suspending negative ten States. The exec- utive negative qualified by the power of each branch of the legislature to overrule it passed sub silentio.” Mr. Hamilton thought the British model of the executive the best; that the executive, if elected for life, would be elected by the peo- ple, and this would therefore be consistent with republican principles." The Committee of Detail, to whom the various 1 Id. 783–84, 4 Id. 770. 2 Id, 766. 5 Id. 790. 3 Id, 767. r 6 Id. 911. § 341.] JEXECUTIVE DEPARTMENT. 699 propositions were referred, reported in favor of a single ex- ecutive to be elected by the legislature for a term of seven years, but to be ineligible to re-election, and of conferring on the executive a qualified veto, subject to be overruled by two-thirds of both Houses." The committee adopted the sin- gle executive mem. con.” The proposition to elect by joint bal- lot instead of by the ballot of each House passed by a vote of seven States to four. A motion to amend by electing by the people instead of by the legislature was defeated by a vote of two States to nine.” At this late period of the conven- . tion, August 24, Gouverneur Morris strongly opposed the elec- tion of the executive by the legislature. So strong were his views against this mode of election that a proposition that the President should be chosen by electors to be selected by the people of the several States failed by a divided vote.” But the seed had been sown and bore fruit in the report of the Committee of Eleven on the 4th day of September, in which it was provided that in case of failure to elect by the elect- ors, the Senate, from the five highest on the list, was to choose the President by ballot.” In the discussion of this question great opposition to the eventual election of the President by the Senate was manifested. Mr. Williamson suggested that the eventual choice should be made by the legislature, Voting by States, and not per capita. Sherman suggested and moved that the House of Representatives should have the eventual selection, and not the Senate. This proposition, backed by Mason, was adopted by a vote of ten States to one." This history of the struggles in the Con- stitutional Convention over the selection and term of the executive is interesting as showing how, in the face of great divergence of opinion, the clause was finally adopted. During the debates strong opposition was manifested to any monarchical taint in the Organization of the Executive 3Department. The term finally adopted of four years, with 1 Id, 1223–36. 4 Id, 1420–21. 2 Id. 1417. 5 Id. 1486. 3 Id, 1417–19. 6 Id. 1510–12. '700 CONSTITUTIONAL LAW. [$ 342. re-eligibility, was a substitute for the longer term of seven years with ineligibility. The executive unity which secured energy tending toward autocracy was balanced in the minds of the members of the convention against the short term for the executive and his personal responsibility, which could not be evaded. But great distrust was manifested at cloth- ing the executive with large and dangerous powers; and it will be seen in the examination of future clauses relating to this subject that the powers of the executive are well defined as to extent, and limited in a large degree by their depend- ing upon the co-efficient authority of the legislature for their efficacy. § 342. The electors appointed in each State in the manner prescribed by its legislature are to sit in their respective States, and not to meet in one body with electors from other States. This select body in each State (separate and apart from all other like bodies) is intended to voice the independent will of each State.” In the lack of quick communication between the different States in the Union, this plan offered a strong hope of independent action by the several States. It is ob- vious that in our day this expectation would be disappointed by the easy communication between the States, and this dis- appointment has been increased by the party conventions of the different organizations, whose choice of party candi- dates, dictated to the electoral college, defeats the whole plan as contemplated by the Constitution. Of this, more will be said hereafter. The clause proceeds to declare that the meeting of electors in each State (which may be aptly called a college of elect- ors) shall “vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with them- selves. And they shall make a list of all the persons voted for, and of the number of votes for each.” This clearly im- plies that an elector shall vote for any two persons he shall choose, independent of the choice of other electors. It was 1 Art. II, Sec. 1, clause 3. 2 Federalist, No. LXVIII. § 342.] FXECUTIVE DEPARTMENT. 701 contemplated that by this security of personal independence &nter se, even in each college, a free vote would be obtained from each elector for the man he deemed best fitted for the JPresidency. But suppose the elector voted for two inhabitants of the same State with himself. It would seem the vote would be void, under this clause of the original Constitution, for either might be President. But that result would, perhaps, not now obtain under the twelfth amendment, for the vote is to be for one as President and the other as Vice-President. But the point is in doubt. The clause proceeds: “which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the Presi- dent of the Senate.” This transmission of the certified ac- tion of the college to the President of the Senate, at the seat of government, is important if not essential. The modus operandi, under the original clause of the Con- stitution up to this point, has been changed by the twelfth amendment, which was adopted in 1802. That amendment provides: “The Electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the per- son voted for as President, and in distinct ballots the person voted for as Vice-President; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.” The historic cause for this change was the dangerous con- dition of things resulting from the election in 1800. Thomas Jefferson and Aaron Burr were voted for by the same polit- ical party and had equal votes. Neither, under the then Constitution, being designated as President or Vice-Presi- dent, the original Constitution declared that when two per- sons had an equal vote, and each had a majority over all 702 CONSTITUTIONAL LAW. [$ 343. others, the House of Representatives should choose one of them for President. º In this case the House of Representatives could not elect either Jefferson or Burr. For a long time it was felt that there would be a failure to elect, and thus an interregnum, occur which might destroy the Union. After some weeks, however, Mr. Jefferson was elected and Burr became Vice- President. The thoughtful statesmen of that period, in view of the danger in the future from a like contingency, determined to propose the twelfth amendment, which was adopted. As al- ready quoted, each college of electors was to meet and vote for one person as President and another person as Vice-Pres- ident. In this explanation we must consider the clause in the original Constitution: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.” This clause is thus precisely copied in the twelfth amend- ment already referred to, and in our later history became a clause of grave and momentous consequence. § 343. In the Presidential election of 1876 Mr. Hayes and Mr. Tilden were the candidates for the Presidency. Con- tests arose in several States between the Hayes and Tilden electors, and the question was critical as to which set in each of them was entitled to be counted. The Senate was com- posed of a large majority of members favorable to Mr. Hayes, the House of Representatives of those favorable to Mr. Tilden. There were rival sets of certificates from several of the col- leges. They were transmitted to the President of the Senate, who was favorable to Mr. Hayes. The Constitution directed, as above indicated, that “the President of the Senate shall, in the presence of the Senate and House of Representatives, Open all the certificates, and the votes shall then be counted.” The question arose, what was the function of opening the certificates in the presence of the House of Representatives, and who shall then count the votes ? On the one part it was contended that the President of the Senate was to open the § 343.] EXECUTIVE DEPARTMENT. 703 certificates and count the votes and thus decide the contest. On the other hand, it was insisted with conclusive force that the presence of the two Houses made them controlling supervisors of the acts of the President of the Senate, which was simply ministerial, and that the counting of the votes was to be the act, not of the President of the Senate, but to be the concurrent act of the two Houses, as guardians of the count and as deciders of the result. This view was not only the clear meaning of the wording of the clause, but gained conclusive confirmation from the historic action of the two Houses, upon which the twelfth amendment had placed its sanction by the adoption of the precise words of the original article, which had been three times acted upon by the two Houses in accordance with this view. In none of the previous cases in 1793, 1797 or 1800 had the President of the Senate exercised any but the ministerial function of open- ing the certificates and laying them before the two Houses. Each House had appointed its one teller (or counter) to count the votes for it, and the result thus ascertained was reported by the tellers concurrently to the President of the Senate, who simply announced the result to the two Houses which had thus been obtained by and through their respective tellers. These precedents were regarded as interpretations of the constitutional language in the original Constitution; and as that language was precisely re-adopted in the twelfth amend- ment, the precedents were held to be an authentic construc- tion of the language used in the original, and by the Constitu- tion-makers (the States) in ratifying the amendment. It is perhaps as well to add that the crucial question was this: The two Houses were intended to count the vote and decide upon the count; but when they differ, who shall um- pire the difference and decide the count? In this case in 1876, the two Houses would, it was anticipated, widely differ in their conclusions. To meet this imminent difficulty, Con- gress passed “The Electoral Commission Bill,” under which the disputed certificates were considered and decided upon by the Electoral Commission, subject to be set aside by the ’704 CONSTITUTIONAL LAW. [$ 344. concurrent vote of the two Houses. Such a concurrent vote was never obtained in any case, so that the decisions of the tribunal upon the disputed certificates were always unre- versed. The result was that all of the disputes were decided by a vote of eight to seven in favor of Hayes and he was declared elected. The constitutionality of the act thus passed by Congress was doubted by many able men, but it settled without con- vulsion, though not without strong dissent from its conclu- sions, a controversy which threatened the peace of the coun- try and the integrity of the Union. A later act of Congress has been passed by which such contests may be decided without the intervention of any other tribunals than the con- current act of the two Houses. One constitutional question may be deemed settled by the act creating the Electoral Commission and the late act just referred to, and that is that the claim of power asserted for the President of the Senate, to which reference has already been made, is with- out any foundation, and that the authority to count and to decide upon the count is vested by the Constitution in the two Houses of Congress." § 344. What number of electoral votes is requisite to the election of a President 2 Under the original Constitution we have seen that no person was designated as President or Vice-President. Two persons are voted for, and “the person having the greatest number of votes shall be the President, if such number be a majority of the whole number of elect- ors appointed.” The Constitution did not intend that any one should be President who could not command a majority 1 The writer refers the reader on this historic subject to the debates in both Houses of Congress in the session of 1876–77; the report of the proceedings of the Electoral Com- mission, Congressional Record of the 44th Congress, Second Session, volume 5, pt. 4; the speech of Sen- ator Conkling on the Electoral Com- mission Bill, and to the speech of the author on January 23, 1877, in the House of Representatives, in which will be found a full collation of the precedents, etc., connected with this question, and also the act of Congress. See also House Misc. Docs., No. 13, 2d Sess, 44th Cong., on counting the electoral votes, § 344.] EXECUTIVE DEPARTMENT. 705 of all of the electors appointed, because if a plurality of votes, merely, would make a President, this might be but a small proportion of the whole vote. If two have a major- ity of all, and have equal votes, the House of Representa- tives must choose between them, as was done in 1800, when Mr. Jefferson was elected. And now the clause goes on: “and if no person have a majority, then from the five high- est on the list the said House shall in like manner choose the President.” How shall the House of Representatives elect? The clause provides for this: “But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall con- sist of a member or members from two-thirds of the States, and a majority of all of the States shall be necessary to a choice.” In the contingency of non-election of the Presi- dent by the colleges, this election by the House of Repre- sentatives has several peculiarities. (a) States shall vote, the representation from each State having one and only One vote. (b) A quorum to elect must have two-thirds of the States represented by one or more members. (6) Of this quorum a majority of all the States is needful for a choice. In reference to the Vice-President this provision is made: “In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.” It will be seen by this that the Vice-President may be elected when he has the next highest vote to him who is chosen President, although they may not be a majority of all of the electors appointed. This provis- ion caused John Adams to be elected the first Vice-President by a minority of electoral votes. It will be further seen that where there are two who have the next highest vote, but equal votes, then the Senate shall choose the Vice-Presi- dent from them by ballot. 45 706 CONSTITUTIONAL LAW. [$ 344. The twelfth amendment of the Constitution changed in many respects the provisions already referred to in the orig- inal Constitution. After providing, as already stated, for a separate vote by the electors for President and Vice-Presi- dent, and for transmitting and opening these certificates of these votes, and then counting the votes, and that the per- son having a majority of all of the electors appointed shall be President, the amendment further provides: “and if no person have such majority, then from the persons having the highest numbers, not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” And then follows the same provision as in the original: “But, in choos- ing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice.” An important provision fol- lows to meet the contingency which had been threatened in the election of 1800, when the House of Representatives failed to choose a President. It is in these words: “And if the House of Representatives shall not choose a President, when- ever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.” A change is then made in the election of a Vice-President, among those voted for, to fill that office, when the votes are equal or when no one candidate has a majority of the whole number of electors appointed. The provision is as follows: “The person having the greatest number of votes as Vice-Presi- dent shall be the Vice-President, if such number be a ma- jority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the Whole number of senators, and a majority of the whole num- § 344.] . EXECUTIVE DEPARTMENT. 707 ber shall be necessary to a choice.” This provision prevents any man from being Vice-President by the vote of the elect- oral colleges unless he has a majority of all of the electoral vote. Some remarks may be added on this extraordinary method of election: First. The primary plan for election is by the electors of the several States, appointed as each by its legislature may prescribe, each State having an electoral force determined on the basis of its co-equality as to state- hood and the numbers of its population. Second. A major- ity of electoral votes, not a plurality, is required to elect; this prevents a minority President as far as the colleges are concerned. Third. If the colleges cannot make this major- ity, then from the three highest candidates (in the original Constitution it was five) the House of Representatives must choose the President by the representation of each State casting one vote only for the State, and a majority of all of the States may elect the President regardless of their re- spective numbers. Such a President is chosen by a majority of States, which may contain a decided minority of numbers. Pourth. If the colleges choose no Vice-President, then from the two highest candidates the Senate must choose a Vice- President, who must be the choice of the majority of the body, i.e., of the senators of co-equal States, but this majority of States in the Senate may contain a decided minority of members. The last clause of the twelfth amendment makes eligibility to the offices of President and Vice-President pre- cisely the same. It is obvious from this review of the clause that the Con- stitution contemplated the selection of a person for the IPresidency who should combine a majority of all the elec- toral representatives of the States meeting, deliberating and choosing, by their separate, distinct and independent action. The value of the selection was expected to be assured by this independence of State action, and this was supposed to be the better assured by a later clause which provides that the date of voting by the electors was to be the same though both acted separately. This secured more distinctly the 708 CONSTITUTIONAL LAW, [$ 344. action of both colleges from any possible influence from any and all others. The change which circumstances have wrought in a cen- tury is certainly very marked. In effect the two or more great parties of the country, in general convention, decide upon the personality of the President and Vice-President, and the electoral colleges chosen as the representatives of these parties register the choice of the extra-constitutional conventions of these political parties. These conventions are composed of representatives in number corresponding to the numbers in the electoral college; but while analogous to the constitutional plan, in this it reversed all likeness by the union of all the representatives of the State in one body, and by counting Territories as well as States in the repre- sentation in the convention. Besides this, members of Con- gress and office-holders fill these conventions when no one of them could be constitutionally an elector. No wonder the choice now falls so often upon some unheard-of man, and does not always come to one of our most illustrious citizens, the cynosure of all eyes in every section of the Union. No wonder that one may be selected whose merits are only known to party managers. l When weread the words of Hamilton' and study the events of this later era, we cannot esteem him a prophet, and yet can see his prophecy of the radical change of the constitutional method of election by the extra-constitutional methods of the political parties of the Union. He says: “This process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an emi- ment degree endowed with the requisite qualifications. Tal- ents for low intrigue and little arts of popularity may alone suffice to elevate a man to the first honors of a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable portion of it as would be neces- 1 Federalist, No. LXVIII. § 345.] EXECUTIVE DEPARTMENT. 709 sary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and Virtue.” § 345. It is very obvious that the practical operation of this scheme of election of the President is directly opposed to what was contemplated by the framers of the Constitu- tion. Mr. Bryce has well said:” “In every American elec- tion there are two acts of choice, two periods of contest. The first is the selection of the candidate from within the party by the party; the other is the struggle between the parties for the place.” This remark applies to all grades of political offices in the country. The Constitution designed that a body of select men should choose a person that they esteemed fit for the Presidency. But a party convention of representatives from every State and Territory has done that for them, and public opinion com- pels them to obey its nomination. The electors were in- tended to nominate. In practice they merely confirm the nomination of an ultra-constitutional body, composed of material different from the electoral college of the Consti- tution. Second, the Constitution intended that not only the personal but the political principles of the President should be determined by the separate and independent judg- ment of the State college of electors, and the convention voted down a proposal that they should hold a general meet- ing and a union of the electors from all of the States. The ultra-constitutional method in practice with the par- ties subordinates the separate colleges to the dictation of the party conventions, not only as to the personnel, but the po- litical principles of the candidates. Third, it has come to pass that this ultra-constitutional body is made up of sen- ators and representatives, of Office-holders and office-seekers, whose great object is party success, from which they hope 1 American Commonwealth, vol. 2, p. 142. 710 CONSTITUTIONAL LAW, [$ 345. to realize the rewards in honors, emoluments and the spoils of victory which are foreshadowed by platforms providing for the collection and disbursement of enormous revenues. Fourth, this desideratum is only to be realized by dictat- ing the unified sentimerit of the party convention, in pref- erence to their distinct duties, not only to the colleges of electors, but to all the senators and representatives of the States; thus centralizing the action of the government of the Union through the body which specially relates to the Pres- idential office, and subordinates all State and district action to its dominating influence. Fifth, the solidity of the vote in the large States in these party conventions, and through the electoral college in the election of President, is giving to the large States a potential influence in deciding the canvass and election of the President, which is unjust to the smaller States, enhancing the pretensions of public men in the large States, makes such men in the Small States practically in- eligible, and threatens to place a dominating force in the hands of a few large States who may by combination, dan- gerous to the Union and fatal to the liberties of the people, put the government in the hands of an oligarchy instead of the whole people of the country. If the present system is to be retained, it ought, at least, to be so amended as to di- vide the power of the large States, by making districts for the Presidential electors. This will break up the solidity of power of the large States; give representation to the minority in each, now easily captured for the election of One who can command a bare majority in a million of votes; will make money less potential, and the temptation to use it less strong; and will decentralize power by multi- plying the nuclei of public opinion throughout the whole Country. t These suggestions of dangers and their causes, and of changes which may avoid them, are made without expand- ing them into full exposition, but in the hope of availing Something to check evil tendencies and to secure the desired Objects of the Constitution. §§ 348-348] Executive DEPARTMENT 711 § 346. We proceed to the next clause, which leaves to Congress to determine the time of choosing electors, which is to be done as the legislature of a State may prescribe; and the day for the electors to give their votes, which day must be the same throughout the United States. This seems to allow Congress to fix a different time in the States for choosing electors, though the day they vote must be the same. The practice is to make both the same throughout the United States. It has become universal to appoint elect- ors by the vote of the suffragans in the States, which amounts now to nearly fifteen millions. § 347. The next clause relates to eligibility to the office of President (the same rules applying to the Vice-President, as we have seen). He must either be a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution. This latter clause was intended to make eligible one who, though not a native, was a citizen , at the date of the Constitution, if he had been fourteen years a resident of the United States. It made Hamilton eligible but not Gallatin. Thirty-five years of age is requisite to eligibility. § 348. The disability of the President, and what is to be done in case of it, is next considered. (a) The twelfth amendment provides when a President is not elected, in case the duty of election devolves on the House of Repre- sentatives, then the Vice-President shall act as President, as in the case of the death or the constitutional disability of the President. It is probable that in such case the Vice- President would take the office of President, as the Vice- President does in the other cases referred to, and not merely act as President. (b) The President may be removed from office on impeachment." In case of such removal the office devolves upon the Vice-President; that is, he becomes Pres- ident, and does not merely act as President. (6) In case of the death of the President, the Vice-President takes the 1 Const. U. S., Art, I, Sec. 3, clause 7. 712 CONSTITUTIONAL LAW. [$ 348. office. It has never been discussed how and to whom the President shall resign. Perhaps, as the Houses of Con- gress confirm his title, they should receive notice of his resignation, and a record be made of it in the State De- partment, where the President deposits the acts of Con- gress approved by him. Congress has declared it shall be in writing, subscribed and deposited in the State Depart- ment. In case of “inability to discharge the powers and duties of the said office,” the Vice-President shall take it. In case of “inability to discharge the powers and duties of the said office,” as well as in case of removal, death and resignation of the President, the office devolves upon the Vice-President. This suggests several curious inquiries, as to what is such ina- bility, and how is it to be ascertained. And if such disability be removed, will the office be restored to the President 2 No answer is furnished by the express words of the Constitution. A subsequent clause provides for the inability of both Presi- dent and Vice-President, by authorizing Congress to provide by law to declare what officer shall act as President, and that such officer shall act “until the disability be removed, or a President shall be elected.” In this clause the word “disability” is substituted for the word “inability,” because the removal of the President by death or resignation cannot be a disability capable of being removed. Hence the word “disability” must have been used as synonymous with “in- ability.” It is probable that the power to remove for inability by impeachment may furnish a method for deciding whether “disability” exists. Can any other mode be conceived. But for insanity as an inability, for example, this method would be clearly proper. Would judgment in such case be for per- manent removal, if the insanity ceased ? How would its ces- sation be determined P It is obvious, unless some such judicial procedure be proper, there is no way in which the President can be eiected and *Acts Cong, March 1, 1892, ch, 11. § 348.] EXECUTIVE DEPARTMENT. 713 the Vice-President succeed him. One resort still remains to be considered. The co-efficient clause" authorizes Congress “to make all laws necessary and proper for carrying into execution . . . all other powers wested by this Consti- tution in any officer” of the United States. Congress can therefore by law provide for the mode in which, in case of inability of the President, the Vice-President shall succeed to the office as President. The “inability” might be adjudicated by a court of the United States as a case arising under the Constitution, and in such manner the President might be removed and the Vice-President succeed to the office. The latter part of this clause provides against “the removal, death, resignation or inability, both of the President and Vice-President,” etc., by providing for a law by Congress declaring what officer shall act as President or Vice-President, who shall so act until the disability be removed, or a President shall be elected. Con- gress in 1792” provided that the President pro tem. of the Sem- ate should act as President, and if there were none, then the Speaker of the House of Representatives should act as Presi- dent. By a late law this has been changed, and it would seem on good reason. Neither the President pro tem. Of the Sen- ate nor the Speaker of the House of Representatives is an offi- cer of the United States. We have already seen that neither a senator nor representative in Congress is such officer.” The law of Congress could not deprive a State of either. While either acted as President, could the State elect another? If not, it would be deprived by law of its representation. A late law of Congress provides for the Secretaries in cer- tain order to act as President in such case. The Office of President does not devolve on such officer as it does on the Vice-President, but virtute officii the Secretary “acts as Pres- ident.” The office is vacant, but its functions are performed by the officer designated by law. If such Secretary ceases to be such, he can no longer act as President. His holding !Const. U. S., Art. I, Sec. 8, 2 Ch. 8. clause 17. 3 Ante, $199. 714. CONSTITUTIONAL LAW. [$$ 349, 350. his office as Secretary is his title to act as President. The Constitution says that he is to so act until the disabil- ity be removed. How is it to be ascertained that the dis- ability is removed ? If it be removed, the Constitution contemplates the President's return to office. His tempo- rary inability suspended his right to exercise his office; his restoration to ability revests his title to hold and exercise it. The language is, “until the disability be removed, or a President shall be elected.” This alternative suggests that if the disability be temporary, the disabled President must be restored; if the disability be permanent, a President must be elected to fill out the term of office. All these contin- gencies are provided for in the power of Congress granted by the co-efficient clause above referred to. Congress has not fully exercised this important power, but may do so by a law to carry these clauses into effect. g § 349. The compensation of the President is provided for in the next clause. He “shall at stated times receive for his services a compensation.” . This is very precise. Congress must by law appropriate it, not as a gift, but as compensa- tion for services rendered. Further, this compensation shall not be increased or diminished during the period for which he shall have been elected. Not increased, lest Congress may thus seek to influence the President, or lest he may secure it as a personal favor for official actions; nor diminished, that Congress may not thus constrain the Executive by menaces. Nor shall the President, within the period for which he is elected, “receive any other emolument from the United States or any of them.” This precludes all extraneous money influence upon the official action of the President but his regular compensation, fixed before his term begins, and un- changeable during his term." § 350. The oath the President must take before entering upon the execution of his office is prescribed in the last clause of this section. In article VI, section 3, the oath prescribed 1 Federalist, No. LXXIII. § 351.] FXECUTIVE DEPARTMENT. 715 for other officers requires them “to support this Consti- tution.” The oath of the President is very specific and com- prehensive: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect and de- fend the Constitution of the United States.” This is a very emphatic obligation on the President by positive and nega- tive action to keep the Constitution, in all of its integrity, secure from his own violation, and against that of all others in so far as his power can do so; to preserve from his own acts; to protect from outside influence, and to defend against all invasion. - Having thus considered the mode of election of President and Vice-President, one question remains. The term of office was made four years, with an intimation that re-eligibility should attach to these offices. It was clearly so intended; and the absence of limitations makes re-eligibility the fixed principle of the Constitution. And though the first Presi- dent declined a third term, and the practice has conformed to his action so as almost to have become a settled principle in the public mind, there is nothing in the Constitution nor in the debates of the convention, nor in the Federalist, to make an election of a man to more than two terms inad- missible on constitutional grounds. Mr. Hamilton, in an able paper,' has stated the reasons for re-eligibility with great force, to which the reader is referred. POWERS AND DUTIES OF THE PRESIDENT. § 351. It has been already said, in accordance with the maxim of Baron Montesquieu, that the powers and duties of the President are executive, as contradistinguished from those which are legislative and judicial. This principle is well defined by the words of the first clause of this article: “The executive power shall be vested in a President of the United States of America.” The qualified effect of this, 1 Federalist, No. LXXII. 716 CONSTITUTIONAL LAW. [$351. arising from the veto power, must, however, be noted. Let us consider these powers and duties in their order. i Article II, section 2, clause 1, is as follows: “The Presi- dent shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.” This clause must be read with the clauses in the compre- hensive section as to the powers of Congress." Congress declares war—that is a legislative power; though the Crown declares war in England, yet the power is in its legislature, and not in its executive. Such declaration changes the relations of nations to each other; puts the individuals of each into quasi-hostile relations; forbids commerce, and in- terferes with the life, liberty and property of the people; dis- pels peace and enacts war. The Constitution gave to the legislative department the sole power to do this tremendous thing, and did not entrust it to the “one-man power” of the President. It discriminated between the law which called forth a new status for the people in their international rela- tions and the conduct of the war. Congress might legislate war, but it is incapable of executing. The executive, with unified will powers, though alone, can well direct the move- ments of armies and navies. The Crown in England is general- àssimo. But, as in England, the raising of armies and navies and the money for their support and maintenance are in the hands of the Congress. We have, in considering the English Constitution, pointed out the value of this power secured to the Congress. The commander-in-chief is subordinate to Congress in all respects, and he cannot use his military power to the injury of the country, except with the concurrence and consent of Congress. Besides, he is made commander- in-chief of the militia when called into actual service. How are they to be called into actual service? By the fifteenth clause of the eighth section of article I, Congress has power “to provide for calling forth the militia to execute the laws 1 Const, U. S., Art. I, Sec. 8. § 351.] EXECUTIVE DEPARTMENT, 717 of the Union, suppress insurrections, and repel invasions.” This is a provision under which the call may be made. The act of Congress of 1795 and other acts define the cases in which the call may be made by the President. As soon as called, under the act of Congress, the President commands and di- rects the militia. The implication of authority to regulate and govern the army and navy which might here result from the President being commander-in-chief is negatived by the ex- press power given to Congress “to make rules for the gov- ernment and regulation of the land and naval forces.” The execution of these rules is for the President, but the rules have the legislative character. The use of the army and navy and of the militia when called for the purposes named above by acts of Congress devolves upon the President in the cases specifically desig- nated in them. It is for Congress to prescribe the purpose of the call for the militia; and while the power of the Presi- dent to take care that the laws be faithfully executed might seem to give the President power to do so by the use of the army and navy, it may be doubted whether it does not require the exercise by Congress of the all-embracing co- efficient power to pass a law as necessary and proper to carry into execution the executive power, to take care that the laws are faithfully executed, by the use of the army and navy. During the war of 1812 it was doubted whether the Presi- dent could delegate the command of the militia to another officer.” But President Washington gave the command of the militia to Governor Lee in 1794, to put down the Penn- sylvania insurrection. The President may not, without au- thority of law, create a new military office and fill it in order to give the command of the militia to such officer.” 1 Art. I, sec. 8, clause 14, 3 Marshall’s Life of Washington, 28 Mass. 548,- a letter from the ch, 8; Rawle on the Constitution, Governor of Massachusetts to the ch. 20. Justices of the Supreme Judicial Court, and the answer thereto. 718 CONSTITUTIONAL LAW. [š 352. In the conduct of troops and command of naval vessels the President has exclusive discretion; but Congress may use the money power, as Parliament uses it in Great Britain, to control the conduct of war in a manner it condemns. But all the operations of war in an enemy's country, by levy of contributions and the like, would seem to revert to the President by virtue of his power as commander-in-chief. To illustrate, suppose war has been declared. The status of war is thus constituted. How can it be stopped when once begun? The President and Senate can make a treaty of peace, but must war continue until the President and Sen- ate agree to the terms of peace? Is there no end to the war except at the will of the President and Senate? No. authority can be cited on the question, but the writer thinks a repeal of a law requiring war would be effectual to bring about the status of peace in place of war. Besides this di- rect method, Congress, by the denial of supplies, as Parlia- ment in England may do, would bring the war easily to an end, though the President might desire to continue it. As commander-in-chief he must personally approve or disap- prove of the judgment of courts-martial under the articles of war which require the proceedings to be submitted to him." § 352. “He may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices,” etc. This is, as Mr. Hamilton says,” “mere redundancy, as it would have been inferred necessary without being expressed.” It indicates clearly, however, that while the Constitution made the executive a unit, and excluded all idea of an ad- visory council, it still contemplated that the executive func- tion should be divided between the executive departments with a principal officer at the head of each, who should 1 United States v. Page, 137 U. S. 2Federalist, No. LXXIV. 673, distinguished from Runkle v. United States, 122 id. 543. § 352.] IEXECUTIVE DEPARTMENT. 719 be subordinate to the President in all things concerning his duties; and this is clearly inferable from the language used. “He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of im- peachment.” Under this clause the President may suspend, commute or abrogate penalties. He may commute the death penalty to imprisonment for life, which the convict may ac- cept, and the latter cannot then claim that the pardon is abso- lute and the condition Void.” The language is, “to grant pardons,” which includes conditional as well as absolute par- dons. The term is analogous to that recognized in the English law, and the Supreme Court has agreed that in the use of those terms our Constitution must be construed to have re- ferred to that law. But the convict must accept the com- mutation. If he does not, the President could not inflict, without judgment of the court, the substituted penalty. His acceptance, therefore, is necessary to the operation of the commuted penalty.” The President may grant a pardon before criminal procedure is instituted, and it will operate as well as if granted after a conviction.* The amnesty proclamations of the Presidents since the war embraced large numbers of persons against whom there were no criminal prosecutions instituted, and these amnesty proclamations have been construed as pardons granted be- fore and without trial or conviction. When granted before, it prevents all penalties and disabilities from attaching to the offender and restores him to all of his civil rights. If granted after conviction, it removes all of these penalties and disabilities and restores him to his civil rights. Pardon releases all penalties, including fines and confiscations,” and this applies to property confiscated under judicial proceed- 1 Art. II, sec. 2, clause 1. Accord, Cummings v. Missouri, id. 2 Ex parte Wells, 18 How. 307. 277. 3 United States v. Wilson, 7 Pet. 8 Osborn v. United States, 91 U.S. 162. 474. 4 Ex parte Garland, 4 Wall, 326. 720 CONSTITUTIONAL LAW. [$ 353. ings; and if the money has not been distributed, all will be restored to the Offender, upon pardon, unless by judicial process the title has been vested in another person." Pardon wipes out guilt and all of its consequences as if it had never been. In the eye of the law the offender is as innocent as if he had never committed the offense.” In United States v. AZečn,” disloyalty, which forbids the owner to claim captured property, is removed by pardon, and the owner is treated as if he had never been otherwise than loyal. The effect of par- don upon the offender's right to property, saving the rever- sion to his heirs at law, was fully considered in a number of cases besides the one last cited.* These cases have been before explained. In the leading case of United States v. A lein the Supreme Court decided another important ques- tion; namely, that it is not in the power of Congress to qualify the pardoning power of the President, either in re- spect to the cases in which it may be exercised, or in respect to its consequences. Thus, it is not competent for Congress to say that the effect of the pardon shall not be to restore. the property rights of the offender. Thus, rights are restored as the legal consequences of the exercise of the pardoning power by the executive, without any right to qualify the power on the part of the legislative department. § 353. “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”" The negative of this clause is in article I, clause 10, “No State shall enter into any treaty,” etc. The object of the Constitution, as it had been of the Arti- cles of Confederation, was to give to the general government of the States of the Union the regulation of their relations 1 Id. 293; Hart v. United States, 118 id, 2 Ex parte Garland, 4 Wall, 380. 62; Shields v. Schiff, 124 id. 351; Accord, United States v. Padford, 9 Railroad v. Bosworth, 133 id. 92; Wall. 542. Jenkins v. Collard, 145 id. 546; 313 Wall. 128. United States v. Dunnington, 146 4Wallach v. Van Riswick, 92 U.S. id. 338. 202; Avegno v. Schmidt, 113 id. 5 Art. III, Sec. 2, clause 2, § 353.] JEXECUTIVE DEPARTMENT. 721 with foreign nations. And these two clauses vesting the power of making treaties in the President and Senate, and denying the power to every State, give the exclusive power of mak- ing treaties to the President and Senate. It is a striking fact that the body which represents the co-equality of the States should be the advisory and consenting body to any treaty between the States and foreign nations. The President has no power, unless the treaty be made by and with the ad- vice and consent of the Senate. The nature of the treaty-making power it is now proper to consider. Mr. Hamilton, speaking of this power, says: “Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society, while the execution of the laws and the employ- ment of the common strength, either for this purpose or for the common defense, seem to comprise all of the functions of the executive magistrate. The power of making treaties is, plainly, neither the One nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obliga- tions of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive.”" The treaty-making power in England is vested in the Crown; but this does not show that it is in its true nature an executive function. A treaty may be defined to be a 46 l Federalist, No. LXXV. 722 CONSTITUTIONAL LAW. [$ 353. compact between nation and nation. The treaty, as a con- tract, is the neaus between the two distinct national wills, creating a pact between them. The subject-matter of the treaty and the objects of the contract may require legisla- tion to complete it and to carry into execution what, by treaty, is merely executory. A treaty may be designed to establish peace instead of war. It may relate to the regu- lation of commerce between the inhabitants of two nations, and as to this, by operating upon individual rights, may par- take largely of the legislative function. It may apply to ex- tradition of criminals, which, operating upon the liberty of the individual, is characteristic of legislative power. This object, as all these mentioned, must be the result not of the will of one nation alone, but of the concurrent will of two nations. The power to make the contract is given neither to the legislative nor to the executive department alone, but to a combination of the two, by entrusting it to the Presi- dent and the Senate. It will be seen that the President has power to make treaties, which seems to give to him the power of negotiation and formulation of the treaty, which shall have no force as such unless it is sanctioned by the advice and consent of the Senate. The word “advice,” used in the clause, indicates action by the Senate preliminary to making the treaty. The word “consent * indicates action by the Senate subsequent to the making of the treaty by the Presi- dent. It is therefore clear that the Senate may advise the IPresident before he has fully acted, or consent to his action after he has formulated the treaty. The proviso is very important. We have already referred to the fact that the equality of representation of the States in the Congress of the Confederation gave undue power to the small States as to any action which depended upon a majority of their votes. In the Articles of Confederation it is provided that Congress (which has the treaty-making power) should enter into no treaties unless nine States as- sented to the same — nine States out of the thirteen. Two- thirds of the States, therefore, were required to make the § 354.] JEXECUTIVE DEPARTMENT. 723 treaty binding. The same idea was in the minds of the mem- bers of the convention, when they required that two-thirds of the Senators should advise and consent to a treaty in order to its validity. But it does not require that two-thirds of all of the Senators should advise and consent to the treaty, but two-thirds of the senators present. - Why is this? Mr. Hamilton, in the Federalist, has given the reason for it in the following words: “If two-thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and dis- Order.” 1 § 354. A grave question has arisen whether the exclusive power of treaty-making, vested in the President and Sen- ate, is unlimited in its operation upon all the objects for which a treaty may provide. Can a treaty by compact with a foreign nation bind all of the departments of our own gov- ernment as to matters fully confided to them; can it sur- render or by agreement nullify the securities for personal liberty engrafted upon the Constitution itself; can it cede to a foreign power a State of the Union or any part of its territory without its consent; can it regulate commerce with foreign nations in spite of the power of Congress to regulate commerce with them; can it provide for the rates of duty to be imposed upon certain articles imported from foreign nations, or admit them free of duty, in the face of the power given to Congress to lay and collect taxes and duties; can a treaty appropriate money from the public treas- ury and withdraw it without the action of Congress; can a treaty dispose of any part of the territory of the United States, or any of their property, without the consent of Con- gress, which alone has power to dispose of and make rules and regulations concerning the territory and other property of the United States? These important questions have several 1 Federalist, No. LXXV. '724. CONSTITUTIONAL LATW. [$ 354. times arisen for discussion in our history, and upon them authoritative decisions have been made by other depart- ments of the government, which are based upon solid rea- son and sound principles of constitutional construction. It cannot be denied that very many of these questions must be answered in the negative, or the consequence would be that, under the treaty-making power, the President and Senate might absorb all the powers of the government. In favor of the extreme claim of power for the President and Senate, it has been urged that a contract between the United States and a foreign nation must be conclusive against all departments of the government, because it is a contract; but the answer to this contention is obvious and conclusive. It involves the petitio principº, by assuming that the con- tract is complete though it trenches upon the power of the other departments of the government, without their consent. And if it be further urged that foreign nations know no party in the contract on the part of the United States except the President and Senate, the answer is equally conclusive that if our Constitution requires the consent of the departments to a treaty of the nature referred to, the foreign nation is bound to take notice of that fact, and can- not claim a completed obligation, in the absence of the con- sent of the other departments. The maxim upon this subject is familiar: qui Gum al?o contrahºt vel est, vel debet esse, non ignarus condition's éjus. And if it be further urged that this is too refined a doctrine to regulate our delicate rela- tions with foreign powers, the answer is that the treaty- making power of the Crown of Great Britain, where it involves a concession of the clear and absolute power of Parliament, has never been recognized as valid by the Eng- lish government, and has never been enforced. The Queen may make a treaty to pay ten millions of dollars to the French government, but unless Parliament appropriates the money the treaty will be ineffectual. “It is from the funda- mental laws of each State that we must learn where resides 1 Wharton's International Law, 457; 1 Mahon's History of England, p. 20. § 354.] IXECUTIVE DEPARTMENT. '725 the authority that is capable of contracting with validity in the name of a State.”” A treaty, therefore, cannot take away essential liberties se- cured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution forbids them to do. We may suggest a further limitation: a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will. On these questions the true canon of construction, that the treaty-making power, in its seeming absoluteness and unconditional extent, is confronted with equally absolute and unconditioned authority vested in the judiciary. There- fore, neither must be construed as absolute and uncondi- tioned, but each must be construed and conditioned upon the equally clear power vested in the others. For example, Congress has power to lay and collect duties; the President and Senate have power to make and contract with a foreign nation in respect to such duties. Can any other construction be given to these two apparently contradictory powers than that the general power to make treaties must yield to the specific power of Congress to lay and collect all duties; and while the treaty may propose a contract as to duties on arti- cles coming from a foreign nation, such an executory con- tract cannot be valid and binding unless Congress, which has supreme authority to lay and collect duties, consents to it. If it is then asked, how are you to reconcile these two powers which appear to be antagonistic, the answer is clear. Congress has no capacity to negotiate a treaty with a for- eign power. The extent of its membership makes this im- practicable. The Constitution, therefore, left the House of Representatives out of all consideration in negotiating treaties. The executory contract between the United States and a foreign nation is therefore confided to the one man who can conduct the negotiations, and to a select body who can advise and consent to the treaty he has negotiated. But this executory contract must depend for its execution 1 Wattel, Blº, 2, sec. 154, 726 CONSTITUTIONAL LA W. [$ 354. upon the supreme power vested in Congress “to lay and collect duties.” It is therefore a contract not completed, but inchoate, and can only be completed and binding when Con- gress shall by legislation consent thereto, and lay duties in ac- cordance with the executory contract or treaty. The same rea- soning may apply to all of the great powers vested in Congress, such as to “borrow money, regulate commerce, coin money, raise armies and provide a navy, make laws as to natural- ization, bankruptcies, and exercise exclusive legislation” in the District of Columbia and Territories of the country. If these are sought by treaty to be regulated by the Presi- dent and Senate, it can only be done when the Congress wested with these great powers shall give its unconditional COnsent. • *-* * * * * ~ * * - Mr. Madison, in the reports of the convention which he has left to us, used an expression which is significant upon this point. He intimated that in making treaties eventual, that is, complete and final per se, the treaty-making power might be independent; but where they referred to matters that were incomplete without legislation, they would be in- complete until that consent was given." The absurdity of any other construction as to the power to lay taxes, duties and so on is very palpable. We have seen from the Constitution that all bills for raising revenue shall originate in the House of Representatives, to which the Senate may or may not assent, and the President may veto; but if the President and Senate have the power to regulate the system of taxation and revenue by treaty without the consent of Congress, then the House of Representatives, which by the terms of the Constitution is made the origi- nating body for such bills, without whose primal action the President and Senate can have no voice whatever in the mat- ter, is to be excluded from any consent to the terms of the treaty of the President and Senate, who, by the constitutional method, are not entitled to act at all until the House of Rep- resentatives has inaugurated a bill. ! 3 Madison Papers, 1415. § 855. EXECUTIVE DEPARTMENT, 727 The reason in the nature of our system which makes the conclusion absolute is that in the balance of power which was ordained by the convention, the House of Representa. tives was to originate all taxation upon the people. The peo. ple at large dreaded the placing of the tax power in the hands of a majority of the States without regard to their size, and insisted that the power should be in the hands of the States according to the numerical proportion of their population. To give the President, with the advice and consent of two-thirds of the senators present, the power to regulate taxation, is to reverse this scheme and destroy the equilibrium of the Constitution. For in 1790 two- thirds of the States containing 1,685,360 people could rat- ify a treaty against the other third of the States contain- ing a population of 2,166,419; that is to say, that a minority could tax at will the majority. By the census of 1880 two- thirds of the Senate, representing 19,755,532, could regulate taxation against the other third containing a population of 29,615,818; and by the late census of 1890 this disproportion would be greatly increased. It has been shown in previous parts of this work that the regulation of commerce by a majority vote of the two Houses, instead of requiring two-thirds, was the result of a concession made upon a compromise. But if this regulation of commerce can be made by two-thirds of the States in the Senate, then under the census of 1880 above shown, two- fifths of the population of the country could regulate com- merce against the other three-fifths, instead of the original purpose to require a vote of two-thirds to do so. § 355. These results demonstrate the fatal disturbance of the equilibrium of the Constitution which would arise from any such construction as would give the President and Sen- ate the right by treaty with a foreign power to regulate the internal concerns of the country. We have had several his- toric precedents on this subject, to which brief reference may be made. President Washington negotiated Jay's treaty in 1795, in which were general stipulations as to commerce and 728 CONSTITUTIONAL LAW. | [$ 355. duties upon British vessels, etc. It was insisted that this treaty was complete without any consent of the House of Represent- atives. The House of Representatives resolved by a vote of 63 to 36 that while the House did not claim any agency in making treaties, yet when a treaty stipulated for regulations upon any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stip- ulations, on a law or laws to be passed by Congress, and it was the constitutional right and duty of the House of Represent- atives in all such cases to deliberate on the expediency or inexpediency of carrying such a treaty into effect, and to determine and act thereon as in their judgment might be most conducive to the public good." When the treaty of Ghent was negotiated in 1815, contain- ing stipulations as to duties on articles imported from Great Britain, and as to commerce from that country, Mr. Madison transmitted the treaty and recommended to Congress legisla- tion such as the treaty required, and a bill was passed in con- formity therewith. The two Houses were in fierce contention upon the question we have been discussing. Calhoun of South Carolina, William Pinckney of Maryland, supported the views in favor of the treaty-making power, while Lowndes of South Carolina and Randolph of Virginia and others in- sisted that Congress must consent to it. In 1844 the question was again considered upon what was known as the Zollverein treaty, when the foreign affairs committee of the Senate, through Senator Rufus Choate, their chairman, maintained the principles we have stated above.” Without going fur- ther into this question we may refer to the various views of learned writers on this subject.” The courts in the cases cited, though holding the fact that a treaty as well as a law is held by the Constitution to be 1 1 U. S. Stat. at Large, 459. tist Union, 5 McLean, C. C. R. 344; * Senate Journal, 1st Sess, 28th Taylor v. Morton, 2 Curtis, C. C. R. Cong, Sess, 1843–44, p. 445. 454; Cherokee Tobacco, 11 Wall. °1 Kent's Com., p. 235; Story's 616; Head-Money Cases, 112 U. S. Com., Sec. 1502; Foster v. Neilson, 580. 3 Pet, 314; Turner v. American Bap- § 356.] ExECUTIVE DEPARTMENT, 729 the supreme law of the land, also hold that a subsequent law of Congress may supersede a prior treaty. That had been decided in The Cherokee Tobacco, supra, while there is an obiter dictum by the court that a treaty may supersede a prior act of Congress. Chief Justice Marshall seems, in Jºoster v. Weilson, supra, to accord with the remark of Mr. Madison, above referred to, as to the distinction between an eventual treaty and treaties requiring regulation. In the treaty with the Hawaiian government in 1876, the terms of the treaty required that it should be sanctioned by Congress, though it should go into effect as had like treaties which provided for a similar ratification. On this subject the writer refers to a report of the judiciary committee of the House of Representatives made in March, 1887." § 356. One other view may be presented. Treaty is inter- national compact. The root of the word (tractare) indicates negotiation between two or more. In itself treaty is a bar- gain, not law. “It has the force of law, but derives it from the obligations of good faith.” No power is given to the President and Senate to effectuate the terms of the treaty by legislation. On the other hand, power is given to Con- gress by law to carry into execution all the powers wested in other departments, of which the treaty-making power is one. Can the conclusion be reached that the law-making depart- ment must then concur in action with the treaty-making power to make the treaty effectual as law to the people, or to execute its terms by needful and proper laws, especially as to those matters which are peculiarly confided to Con- gress? Can an inference in favor of executive authority be admissible in the face of this expressed delegation of power to Congress to carry the treaty into execution; and can it be held that it is obligatory upon Congress to do all of this, not discretionary, and that Congress must register the will of the President and Senate without power to dissent 2 1 Report No. 4177, H. R. 49th Cong., ? Mr. Hamilton, The Federalist, 2d SeSS, No. LXXV. 730 CONSTITUTIONAL LAW. [$356. The precedents in our history are quite numerous, and some of them have been already mentioned. Attention may be called to cases where treaties have bargained for the acqui- sition of territory. We have already seen that Congress has power “to dispose of and make all needful rules and regula- tions respecting the territory and other property belonging to the United States.” But how is the United States to ac- quire such territory or property ? It may be by purchase or cession from a foreign power. The contractual measus between the United States and a foreign nation making cessions or selling territories can be established only by treaty. But when the grant is executed by the treaty, Congress will hold for the United States under the above grant of power, and if the grant be for a money consideration, Congress alone can appropriate the money. In all of the precedents where money was to be paid, Con- gress has passed a law to appropriate it, but as to the tran- situs of the title the precedents are peculiar and instructive. The treaty with France for the cession of Louisiana was concluded April 30, 1803, during the recess of Congress. Mr. Jefferson was then President; Congress met October 17, 1803. The Senate ratified the treaty negotiations of the previous April on the 20th of October; it was proclaimed by the President October 21. The President sent a special mes- Sage to Congress communicating the requisite papers for the purpose of the consideration of Congress in its legislative capacity and for the exercise of its functions which are within the power vested by the Constitution in Congress. “You will observe that some important conditions cannot be carried into execution but with the aid of the Legislature.” Congress on the 31st of October passed a law authorizing the President to take charge of the Territory of Louisiana, so acquired; thus, as the holder of territory belonging to the United States, giving its sanction to the acquisition of the territory by the treaty aforesaid." In the same way, when the treaty between 12 U. S. Stat. at Large. § 356.] EXECUTIVE DEPARTMENT. 731 the United States and Spain was made, by which Florida was acquired, Congress passed an act on March 3, 1819, au- thorizing the President to take possession of Florida accord- ing to the terms of the treaty." The celebrated Ashburton treaty for the settlement of the northeastern boundary be- tween Maine and the British possessions in 1842 established the boundary, by which part of the territory claimed by Maine passed to Great Britain, and part of the British terri- tory passed to Maine. In the fifth article of that treaty it was provided that the United States should secure the con- sent of Maine and of Massachusetts, the mother State of Maine, to the adjustment of the boundary, and would pay over to those States the sum of money agreed to be paid by Great Britain.” This shows that Secretary Webster recog- nized the incapacity of the United States to cede by treaty any part of the territory of a State without its consent, and that the treaty-making power was qualified by the consti- tutional duty of the United States “to protect each State against invasion.”.” So in the settlement of the boundary of Oregon by the treaty of 1846, and of the boundary between Mexico and the United States after the war by the treaty of Guadalupe-Hidalgo, Congress recognized and sanctioned the treaty by assuming possession and establishing governments over the territory acquired under that treaty. The acquisition of Alaska in 1867 brought up the question as to the appropriation of the money agreed to be paid for its purchase. Congress passed a bill making an appropria- tion of money to carry the treaty with Russia into effect. The House of Representatives, however, had taken a stronger position, and on the 14th of July, 1867, by a vote of 113 to 43, it asserted the necessity of the consent of Congress to the said treaty, before the same should have full force and effect. From this proposition the Senate dissented, and the difference of opinion between the two bodies resulted in the act simply appropriating the money to carry the treaty into effect. It 13 U. S. Stat. at Large, 523–24. * Const. U. S., Art. IV, sec. 4. 28 U. S. Stat, at Large, 554, 732 CONSTITUTIONAL LAW. [$ 357. must be conceded that the question, to some extent, is still a mooted one, but upon the precedents, and the authority of great names, the author submits that the conclusions here pre- sented are just and in accordance with the principles of the Constitution. Another form in which the question has been presented was as to the validity of the treaty which gave an alien subject of a foreign nation with whom the treaty was made the right to hold land in a State, contrary to the law of the State against such right. These questions have been decided by the Supreme Court in favor of the validity of such a provision. This is an extreme view of the treaty power. It could change the law of the State in respect to land tenure within its borders. Perhaps it may be vindicated upon the ground that the Constitution expressly recognized the validity of treaties which had been made, under the Articles of Con- federation, in which such a provision is inserted, e.g., in the treaty of 1778 with France; the recognition in the Constitu- tion itself of the binding authority of these treaties would therefore seem legitimately to recognize the validity of any treaty containing such provision made under the present Constitution." § 357. The next clause to be considered is in these words: “and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other pub- lic ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appoint- ments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law west the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” This great power, which gives the official patronage of the government primarily to the President as the nomina- tor, and in a large number of cases to him as the exclusive appointing power, was the subject of great debate during 1 Const. U. S., Art. XI, clauses 1,2; J.); Hauenstein v. Lynham, 100 U.S. Ware v. Hylton, 3 Dall. 199 (Chase, 483; Geofroy v. Riggs, 133 id. 258. § 357.] FXECUTIVE DEPARTMENT. '733 the convention, and has been at every period of the history of the government. The Senate is united with the President as the nominator in the appointment of ambassadors and all the superior officers of the government. The words, “whose appointments are not herein otherwise provided for,” indicate that there were in the minds of the framers of the Constitution some officers created by the Constitution who were not appointed by the President. When we look for such, we find that the Vice-President is one of them, and that the officers of the two Houses, who are to be chosen by them respectively, are the others. These of course are ex- cepted from the appointing power of the President and the Senate. Again, the President takes the initiative and nominates, but cannot appoint any of these superior officers but by and with the advice and consent of the Senate. And that ad- vice and consent, it will be noted, is not restricted, as in the treaty-making power, to two-thirds of the members present; but a majority of the Senate may advise and consent to the appointment. This clause makes two classes of officers: those appointed by and with the advice and consent of the Senate, and those who may be appointed under an act of Congress, the President alone, the courts of law or the heads of the departments. The first class included ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other offices which shall be established by law whose appointments are not otherwise provided for in the Constitution. The second class are those that are to be established by law, but on whom Congress imposes the char- acter of inferiority, and gives their appointment to the Presi- dent without the concurrence of the Senate. It would seem that the Constitution meant to leave to Con- gress the determination of what officers are to be regarded as inferior. Let us consider the first class. The President nom- inates; that is, selects, and in terms appoints, these officers, subject to the advice and consent of the Senate. The Sem- ate, quo ad these appointments, is a council advisory to the 734. CONSTITUTIONAL LA W. J. [$357. President. They advise and consent, but he appoints. In- cluded in this class are those named in the clause, and all others established by law of Congress and not defined as inferior officers, to whose appointment the consent of the Senate is not needed. A grave question was raised early in the history of the government, whether the officers in this first class could be removed, and by whom. Clearly the judges were not remov- able, because by a subsequent article it is provided, all judges. “shall hold their offices during good behavior.” Judges and all other officers, by a subsequent section, are removable from office on impeachment for a conviction of treason, brib- ery, or other high crimes and misdemeanors;” but can the Officers of this first class be removed otherwise than on im- peachment P Must malfeasance and misfeasance in office be perpetuated unless the officer can be removed by impeach- ment 2 This question, as above intimated, was discussed in the First Congress. In the Federalist (Nos. 76 and 77) this question was quite fully discussed, and the opinion was expressed that the power of removal of officers of this first class, except judges, was incident to the appointing power, and it was insisted that as the Officer was appointed by and with the advice and consent of the Senate, he could only be removed by the President upon like advice and consent. Mr. Madison and others insisted that the appointing power and the removing power were executive functions, and that the President, as the chief executive officer, would, but for the special provision of the Constitution, have had the appoint- ment as well as the removal of the officers of the govern- ment. But he argued that the power to appoint was really in the President, qualified by the necessity of the concurrent advice and consent of the Senate, and that as he was the ap- pointing power, subject only to this qualification, the power of removal was not subject to any such qualification, and that he, as the appointing power, could remove without require- ment of the concurrence and advice of the Senate. Accord- 1 Const. U. S., Art. III, sec. 1. *Id, Art. II, sec. 4, § 357.] EXECUTIVE DEPARTMENT. '735 ingly, in the bills which were passed by the First Congress for the creation of the heads of the executive departments, the power of the appointment of the various Secretaries of those departments was, by that act, accorded to the Presi- dent, by and with the advice and consent of the Senate, with these words added: “to be removable from office by the President of the United States.” It was moved to strike out these words, because it was contrary to the Constitution to give the President the power of removal when he ap- pointed the officer by and with the advice and consent of the Senate. The motion to strike out was defeated, and the House passed the bill with the power of removal in the President alone, by a vote of 34 to 20. It was passed in the Senate by the casting vote of the Vice-President, and the bill was approved by President Washington." That settled the question as to all offices in this first class, except the judges. The doctrine was vindicated upon the strong ground that malfeasance in office might occur during a recess of the Senate, and the prompt exercise of the power of removal was essentially necessary to the successful ad- ministration of the government; and that the President, who was charged by a later clause with the duty to take care that the laws be faithfully executed, would be impotent to do so, if he could permit an officer to remain in office when he was violating law, and perhaps embezzling the funds of the government. This construction of the Constitution has been recognized in a number of cases. The opinion of the Supreme Court in Ea, parte Hennen” sanctioned this construction and treated it as settled by the custom and usage of the govern- ment. Mr. Justice Story, in his Commentaries, has given his approval to it.” The settlement of the question in this way was not only based upon sound reason and authority, 1 Annals of Congress, 368–383; 1 Tucker's Blackstone, Appen., 341. Lloyd's Debates, 599. See also President Johnson's veto 2 13 Pet, 225. message of the bill “to regulate the 3 Story's Com., sec. 1537. See also tenure of certain civil offices,” 1 Kent's Com., ch, 14, pp. 289, 290; 1 March 2, 1867. '736 CONSTITUTIONAL LAW. [$ 357. but is not liable to the objection that it affects the equili- brium between the delegated powers in the government and the reserved powers in the States. It is simply a question of the distribution of the delegated powers among the various departments of the government, and settling it according to the best view of the true meaning of the Constitution. The case of Ełe parte Hennen, above referred to, arose under the second class of appointments, where a district court of the United States had appointed a clerk; the judge subsequently removed him without cause, and he sought to be reinstated by a mandamus from the Supreme Court; but the court held that the power to appoint involved the power to remove and reinstate. In the discussion of this question, however, the court went into a consideration of the other class of offices, and adverted in a section of its opinion to the mode in which it had been settled as above stated. In the later case of United States v. Perkins, the court seems to sanction this settled rule, but to this case reference will be made hereafter. A question has arisen, whether, under the terms of this clause referring to this first class, the President may ea mero motu appoint an ambassador or public minister or consul, when Congress has not created those offices. This is a question which cannot be regarded as settled. The power to appoint to an office is executive; the power to create the Office as the necessary and proper means for carry- ing into execution executive functions is a legislative power and clearly vested in Congress, in the co-efficient clause so often referred to.” It appears to have been done when the President nominated a minister for a mission not created by law, and the Senate undertook to inquire into the policy of establishing the mission and appointing the minister. It was decided by a small majority that the Senate had no such right; but the Senate has decided the other way on several occasions.” Mr. Berrien in 1826 argued against the exercise 1 116 U. S. 483. 35 Marshall’s Life of Washington, * Comst. U. S., Art. I, sec. 8, clause ch.5, p. 370; Story's Com, Sec. 1528, 17. note 1. § 358.] EXECUTIVE DEPARTMENT: . 737 of this power of the President. It is probable that President Washington and President Adams both appointed ministers and envoys to foreign nations without the establishment by law of any such mission, notably, President Adams in send- ing the three envoys to the French Republic. t § 358. It seems to be inconsistent with the distribution of power between the executive and legislative departments that the President should have the power to create these embas- sies and then to fill them. Why should the President be au- thorized to create the offices of the Supreme Court judges, and then to fill them, because of their being named immediately after in the same clause? The reason in favor of such a power in the President is very strong when applied to our relations to foreign governments, for the President might very often find it of importance to appoint some agent to go to a for- eign court during the vacation of Congress for the purpose of negotiating a treaty Or arranging some matter of conflict with that country. It appears that President Madison ap- pointed the three ministers who negotiated the treaty of Ghent in 1815 without authority of law and during the recess of Congress. This was called in question, but not condemned by Congress. A subsequent provision of the Constitution was that the President should commission all officers of the United States. In the great case of Marbury v. Madison the question was raised whether an appointment was com- plete before the delivery of the commission. In that case Marbury had been appointed by the President, with the con- sent of the Senate, a justice of the peace for five years. The commission was signed by the President and the seal of office attached. It lay in the office of the Secretary, but had not been delivered when a succeeding President took the office. Mr. Jefferson, the succeeding President, held that the appointment was not complete until the delivery of the commission, and refused to deliver it. The Supreme Court held that it was complete by the signature of the President and the attachment of the Seal to the commission, and delivery was not necessary to complete the appointment; 47 738 CONSTITUTIONAL LA W. [$ 358. but at the same time deciding that they had no right to issue a mandamus, and their judgment was of no avail. The court held the commission was not like a deed and the grant of the office requiring delivery, but that it was merely evidence of the appointment, which had been completed." In United States v. Perkins, supra, it was decided that the second class of officers, named inferior officers, the ap- pointment of which Congress may vest in the President, courts, or heads of departments, cannot be removed by the appointing power except under the limitations, restrictions and regulations which such laws of Congress may enact in respect to them. As to these offices, Congress gives the power to appoint and may regulate the tenure of the office and the responsibility of the officer. This distinguishes this class from the first class. Those in the first class, appointed by the President and the Senate, are removable by the Presi- dent, as we have seen, and Congress cannot take away from him the power of removal. It is a constitutional function vested in him as the executive of the government; but as to the second class of offices established by law, to which ap- pointments may be made as Congress shall regulate, Con- gress has the power to dissent from the removal, because it has the power to vest the appointment. In Mullam v. United States” it was held that although Congress had provided that the President may not remove an officer of the army or navy, except in pursuance of the sentence of a court-martial to that effect, yet that it did not take from the President the power, by and with the advice and consent of the Sen- ate, to supersede him by the appointment of another in his place. In 1822 Congress passed a law in reference to certain in- ferior officers, making their terms of service four years, but with a reservation of power of removal by the appointing power.” This was intended to give greater permanence to 11 Cr, 137. States, 103 id. 227; Keyes v. United 2140 U. S. 240; Blake v. United States, 109 id. 336. 33 U. S. Stat. at Large, 582. § 358.] FXECUTIVE DEPARTMENT, 739 the office, but to reserve to the appointing power the right to remove where the officer was inefficient. In the admin- istration of President Johnson, Congress passed an act called “The Tenure of Office Act.” It provided, substantially, that every civil officer, appointed by and with the advice and con- sent of the Senate, should hold such office until his successor should be appointed by the President, by and with the advice and consent of the Senate, and that the heads of departments should hold their offices during the term. of the President by whom they were appointed, and for one month there- after, subject to removal by and with the advice and con- sent of the Senate. This was intended to force upon the President, members of the cabinet, irremovable by him with- out the consent of the Senate, who were antagonistic to him in partisanship, and who made permanent the tenure of all other officers appointed by the President with the consent of the Senate, until the Senate should consent to their removal. This had the effect of reversing the con- struction of the Constitution to which reference has already been made, and to take away from the President the consti- tutional function of removal, even as to his own cabinet. The veto message of President Johnson, supra, was a very able exposure of the unconstitutionality of this law. It was passed over his veto by both Houses of Congress, and is still, to a certain extent, the law of the land. President Grant recommended the repeal of the law, and Congress did re- peal it in certain respects, leaving the provisions as cited still in force. General Grant, however recommended its total repeal. Those offices which Congress may make, to be filled by appointments from the President, the courts, or heads of departments, would seem to me to be such offices as belong peculiarly to the function of the President or of the court or of the head of a department. All such cases are by law made removable at pleasure by the appointing power, and the power to appoint by either of these could not by law of f 114 U. S. Stat, at Large, 430. *740 CONSTITUTIONAL LAW. [$ 359. Congress give to either the power to appoint the officers appertaining to either of the others." A few more points I may mention. Notice by the Secre- tary of the Navy to an assistant surgeon that he has passed his examination for promotion is equivalent to an appoint- ment by the head of a department.” One appointed by the assistant secretary, acting as head of the department, is in the second class.” But a commissioner of pensions is not the head of a department, and his appointment does not cre- ate an officer of the United States.* Removal of one officer is complete when a new appointment is made; the official responsibility of the one ceases and the responsibility of the other begins with the new appointment.” § 359. The next clause we shall consider is as follows: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next ses- sion.” This clause was adopted to prevent the inconven- iences of vacancies in the first class of offices, when the recess of the Senate would make it impossible to fill them. Offi- cial duties were thus secured without interruption, by allow- ing the executive the exclusive power of appointment; but these appointments were to be but temporary. An acci- dental vacancy was not to change the mode of permanent appointment, and as no limit could be conveniently fixed during the ensuing session of the Senate, the temporary ap- pointment was made to endure until the end of such session. During the session, however, the usual mode of appointment was practicable. The word “happen,” in the clause, used with respect to the vacancy, related to some casualty, such as death, resignation, and the like; hence it has been held, and with good reason, that if the Senate is in session when the office is created, and the office is not filled until a recess, 1 Ex parte Hennen, 13 Pet. 230. 4 United States v. Germaine, 99 2 United States v. Moore, 95 U. S. U. S. 508. 760. 5 United States v. Kirkpatrick, 9 3 United States v. Hartwell, 6 Wheat. 720, 733–35. Wall, 385. * Art, I, Sec. 3, clanse 3. § 359.] JEXECUTIVE DEPARTMENT. t 74.1 the President may not fill it, for no vacancy has happened, as it was never filled." But if the temporary appointment expires at the end of the session, without any permanent ap- pointment with the consent of the Senate, still it is held that the vacancy occurs in the succeeding recess, and this even though the President nominates during the session and the Senate objects, or when he fails to nominate; for as the temporary appointment continues until the end of the ses- sion, when by the terms of this clause it expires, then the vacancy occurs at the end of the session,--at the expiration of the temporary appointment, and the President may fill in the ensuing recess.” So a vacancy first occurring during the session of the Senate may be filled in the succeeding re- cess, for the vacancy happens in that recess, though it existed before the recess.” Sustaining the opinions of their predeces- sors are Mr. Wirt, Mr. Taney and Mr. Legare. A controversy arose in the year 1814 as to the appointment of the commis- sioners to negotiate the treaty of Ghent. President Madison appointed three commissioners during the recess, without any law authorizing it. The Senate raised the question that the office first existed during the recess, thus conceding the Presi- dent's power to make it; but novacancy in the office so created happened in the recess. The office was empty; there was a vacancy in it because it had never been filled; but a vacancy did not happen. The Senate, however, protesting, confirmed the nomination. It has been also held that if the office be created by Congress during the session, and the President fails to nominate, he cannot appoint during the recess. The office never having been filled, no vacancy could have oc- curred. If the President appoints with a commission in the recess, both appointment and commission expire at the end of the next session. If during the session he nominates the same person, and the Senate concurs and such person be 1 Story's Comm., sec. 1553. • , 8 Mr. Attorney-General Stans- 21 Opinions of Attorney-General, bury's Opinions, August 30, 1866, p. 631; 2 Id, 525; 3 Id. 678; 4. Id. 361, pp. 4–6. 523, *742 CONSTITUTIONAL LAW. [$ 359. commissioned, then the liability under the bond given by such person, upon his temporary appointment during the re- cess, ceases as soon as the Officer accepts the new appoint- ment made by the President and Senate." It must be confessed that the terms of the Constitution in reference to appointments have not been so clear and ex- plicit as to leave their interpretation free from difficulty, and the difficulty has not been removed by any adjudication of the courts, or by any authority arising from the concurrence of those departments of government whose powers are involved in the controversy. Mr. Justice Miller has animadverted upon the practice of the President on some occasions in appointing in a subsequent recess one whom he had appointed in a pre- vious one and whose nomination had been rejected at the intervening session of the Senate. The learned judge's crit- icism occurs in his lectures printed since his death, but in his criticism he does not deny the constitutional power of the President to fill the vacancy, but only its propriety.” Within recent years Congress has passed the Civil Service Law, which required, under rules to be prescribed by the exec- utive, certain candidates for second-class offices, above re- ferred to, to pass prescribed examinations as to fitness to fill the Office. This could not apply constitutionally to the first class, where the President nominates and appoints with the consent of the Senate, because to establish by law any precon- dition as to the selection of the officer by the President would have been a breach of power. It could only be applied, there- fore, as we have seen, to the second class; that is, to the in- ferior offices, as to which Congress could prescribe the mode of appointment and regulate and restrict the same at its pleas- ure. The policy of the Civil Service Law has been the subject of warm debates in Congress by public men and also in the public press. It has two prominent advantages if it shall be faithfully carried out: one is to limit the corruption result- ing from patronage; and the second the improvement in the *United States v. Kirkpatrick, 2 Miller on the Constitution of the 9 Wheat. 720. TJrmited States, Lecture III. § 360.] JEXECUTIVE DEPARTMENT. 743 public service. When it is considered that the offices to which it applies number hundreds of thousands, and that the faithful working of the system precludes the favoritism of the appointing power, which breeds corruption, and that the required examination of candidates makes fitness to fill the office rather than a reward for partisan service bestowed on One possibly wholly unfit for office the only requirement, it will be seen at once that however the law may be criticised for not being properly executed, the law itself, if fairly exe- cuted, is not open to censure, but should command the con- fidence and commendation of every lover of his country. It is needless, in such a work as this, to explain the details of this Civil Service Law, and what has been said relates simply to its constitutionality. § 360. “He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.” Under this power President Washington and President John Adams met the two Houses of Congress and gave them the information referred to in an oral speech. This was and is the practice in England by the Queen, and in answer to the speech of the President, as in England, the two Houses made reply by resolutions, or the like. This clause indicates that the President, from his position as the exec- utive head of the government, would, in the recess of Con- gress, be in a position to accurately get information as to the state of the Union which it would be desirable to be com- municated to the two Houses in order to their legislation. Mr. Jefferson, upon his accession to the Presidency, began the practice of sending written messages to Congress from time to time, and that practice has continued until this day. The wisdom and policy of prescribing this duty for the Presi- dent is so obvious that further comment is unnecessary. The clause proceeds: “He may, on extraordinary occa- sions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of ad- 1 Art, II, sec. 3. 744 CONSTITUTIONAL LAW. [$ 361. journment, he may adjourn them to such time as he shall think proper.” The convening of both Houses, under this power, has been frequently exercised, when the condition of the Union required legislation in the recess of Congress. The power to convene either of them, on extraordinary occa- sions, has reference to the necessity of the session of the Senate, which is associated with the President, as we have seen, in the treaty-making power and in the appointment of officers. Accordingly it has been the habit of every new President to convene the Senate to act upon nominations for the secretaries of the executive departments, who are to constitute the cabinet of the President, and of such other Officers as are to be appointed at the beginning of an admin- istration. The clause which relates to his power to ad- journ Congress in case of disagreement between the two Houses in respect to the time of adjournment has reference to the provisions in the first article of the Constitution, section 5, clause 4, which reads: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.” It is obvious from this that both Houses, during their session, are linked together in such manner that each must continue in session unless the other consents to adjournment. Wherever such a disagreement arises, it is adequate to adjourn them to such time as the President shall think proper, but this power cannot be exercised as long as both Houses desire to remain in session. The exigency for the exercise of the executive power only arises when One House desires to ad- journ and the other dissents, which disagreement may be settled by the decision of the President. We are not aware that any occasion for its exercise has ever arisen. § 361. “He shall receive ambassadors and other public ministers.” This clause is treated by the Federalist as involv- ing only the ceremonial power upon the reception of the pub- lic minister from a foreign power. This is one of the cases in which those sagacious writers did not realize the full § 361.] EXECUTIVE DEPARTMENT. '745 extent of the meaning of the Constitution. The power to do this is, under the Articles of Confederation, in Congress, and it has a deeper meaning and significance than the Fed- eralist attributed to it. When a foreign nation changes its government, it is well known that the new government generally sends to foreign countries representatives other than those who had been sent by the old. The presence of the representative of the old gov- ernment in Washington, recognized as the minister of the for- eign power, Would embarrass the government if the represent- ative of the new and contesting government of the foreign country appeared and presented his credentials. There must be ea necessitate some authority in our government to deter- mine between these contestants for the honor of represent- ing the foreign country. To whom should the power of deciding between them more properly be confided than to the officer who has power, by and with the advice and con- sent of the Senate, to negotiate and make treaties with for- eign powers. The reception, therefore, of one or the other of these contestants is, by the clause under consideration, confided to the President. Again, a revolution may occur in a foreign country, and a part may separate itself from the body of the nation, of its people, within territorial lines assumed by the revolu- tion. Such an insurgent power may establish a government and send its representative to the government of the United States, and the question may arise, shall that representative be received? For the reasons already adduced, it would seem that the power is properly vested in the President to determine whether the representative of the insurgent power shall be recognized. This is a delicate international ques- tion, and the premature recognition of the ambassador from the insurgent government may give cause for protest by the parent government, even to the point of War; for the recog- nition of the insurgent government gives moral, if not ma- terial, aid to the insurrection, which would be regarded by the parent government as contrary to the peaceful relations 746 CONSTITUTIONAL LAW, [$ 361. W existing between it and the United States. The question has never been definitely settled whether the President has the exclusive power of recognition in the case mentioned, or whether he has it in conjunction with the legislative department. In a number of cases in the Supreme Court the judiciary has decided that it can take no notice of the existence of any such new government until it has been duly recognized by the political department of the govern- ment. Chief Justice Marshall said in one case: “The course of the United States in reference to the revolted portion of the for- eign nation is regulated and directed by the legislative and executive departments of the government and not by the judicial department.” This language of the Chief Justice leaves it unsettled which of these departments is to decide, or whether both are to decide. The practice of the govern- ment in this respect has not been uniform. In some cases the recognition is attributed to the executive.” It is appar- ent, on slight consideration, that as the recognition may be an offense to the foreign parent government, such recogni- tion may bring on war. The war power, as we have seen, is in Congress. If the executive can put the United States in a position where war will undoubtedly result, the war power may practically be in the hands of the President through this power of receiving ambassadors. It would seem, then, to be the duty of the President, before recognizing the am- bassador or minister in such a case, to give information of the condition of things to the Congress, in order that there may be harmony in the action of the government on so im- portant a question. In reference to Texas, the Senate Com- mittee on Foreign Relations made a report June 18, 1836, through Mr. Clay,” in which the latter says: “The President 1 United States v. Palmer, 3Wheat. 226; United States v. Yorba, 1 Wall. 616. See also The Divina Pastora, 412; Prize Cases, 2 Black, 635. 4. Wheat. 52; Rose v. Hemley, 4 Cr. 3 Senate Doc. 406, 24th Cong., 441; Story’s Con., Sec. 1566. First Sess, *United States v. Pico, 23 How. § 361.] EXECUTIVE DEPARTMENT. 747 of the United States, by the Constitution, has charge of their foreign intercourse, and he should take the initiative in the recognition of the independence of any foreign power. If in any instance the President should be tardy, he may be quick- ened in the exercise of his power by the expression of the opinion or by other acts of either or both Houses of Con- gress.” Mr. Clay reported a resolution which passed Congress March 3, 1837, for the recognition of the independence of Texas, which resolution was signed by President Jackson, who said in his message December 21, 1836, “that it would be left to the decision of Congress;” and he then adds that “it will always be considered consistent with the spirit of the Constitution, and most safe, that it should be exercised, when probably leading to war, with a previous understanding with that body by whom war alone can be declared, and by whom all the provisions for sustaining its perils must be fur- nished.” President Taylor, in June, 1849, through Secretary Clayton, sent Mr. A. D. Mann as a special agent to investigate , the condition of the IIungarian insurrection. In his instruc- tions he intimated that, if the new government proved to be firm and stable, he would be gratified to receive a diplomatic agent from Hungary before the next meeting of Congress, and he entertained no doubt in such case the independence of Hungary would be speedily recognized by that enlight- ened body. In making Congress the arbiter in this case President Taylor followed the precedent of President Jack- son in the case of Texas. Even Dr. Wheaton, after review- ing these cases, closed with this remark: “The recognition by the United States, however, of the independence of Bel- gium, of the powers who threw off Napoleon's yoke, and of the South American States who have from time to time de- clared themselves independent of prior governments, has been primarily by the executive; and such also has been the case in respect to the recognition of the successive revolu- tionary governments of France.” Perhaps the best solution of the question is this: The power of recognition given to the executive in the clause we are 748 CONSTITUTIONAL LAW. [$362. considering is to be qualified by the possibility of war as the result of it, and so to avoid conflict between the two de- partments the President should avoid the exercise of his power of recognition, unless by communication with Con- gress he finds that that body is in unison with him, so as to furnish the means necessary to meet the issue of war, if it should result from recognition. § 362. “He shall take care that the laws be faithfully executed.” This executive duty extends to the carrying out of the laws of the United States to the extent of the several means placed in his hands." It has been decided in the leading case of Mississippi v. Johnson, that this ex- ecutive power cannot be the subject of injunction by the Supreme Court, and that his action for the faithful execution of the laws is in his discretion a judgment and beyond judi- ciary control.” The harmony of this clause with the appoint- ing power, as to all important executive officers, is very obvious, and taking the two together would clothe the Pres- ident with power to select the agents through whom the laws are to be executed, and to take care that they shall be faith- fully executed through those agents. This clause was re- garded by Mr. Madison as very important in establishing the power of removal by the President, even though he had been appointed by and with the advice and consent of the Senate. The last clause of this section is that the President “shall commission all officers of the United States.” The discussion of the distinction between the power to appoint and the power to commission, and that the appointment of the of. ficer is complete when the commission is signed, though it be not delivered, was full and exhaustive in Marbury v. JMadison.” Section 4 of this article provides that “the President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors.” 19 Opinions of Attorneys-General, 24 Wall, 498. 524. 81 Cr. 156. § 363.] JEXECUTIVE DEPARTMENT, 749 This clause should be considered with article I, Section 3, clauses 6 and 7. By these clauses, if the President should obstinately retain a faithless officer in the public service, such officer may be removed by this judgment of impeach- ment, and by such judgment may be disqualified to hold office, and therefore cannot be appointed thereto by the Presi- dent.' We have seen that senators and representatives are not civil officers within the meaning of this clause.” § 363. Before closing the comments upon the executive, a few miscellaneous points may be adverted to. Congress has the power to declare war; the President, who is com- mander-in-chief, executes it. During the Mexican war the President, as commander of the invading army in Mexico, took possession of certain portions of that territory, and set up temporary governments there, superseding the local Mexi- can authority. At the time his power to do so was seriously Questioned; but in the case of Cross v. Harrison,” in the Su- preme Court in 1853, the power of the President to do so is fully vindicated by the court. After the treaty of peace by which the territory was acquired, it devolved upon Congress to establish governments within that territory, which super- seded those established by the President, which were held Only to be valid during the military occupation. During President Grant's administration Congress passed resolutions congratulating the Argentine Republic and the Republic of Pretoria in South Africa, upon the success- ful establishment of their republican government. One of them directed the Secretary of State to acknowledge a dispatch of congratulation from the Argentine Republic, and the other to communicate to the Republic of Pretoria the high appreciation of Congress of the complimentary terms, etc. President Grant vetoed both of these resolutions on the ground that the President was the proper agent, under the Constitution, for intercourse with foreign nations, 1 Amte, $200 et seq. ist, No. 66; 4 Tucker's Blackstone, *Story's Con, sec. 789; Federal- Appen, 578. 816 How, 164, 750 CONSTITUTIONAL LAW. [$ 363. and held that it was unconstitutional for Congress to have any such communication with a foreign power. Congress did not attempt to pass the resolutions over the veto of the President." Reference has been made in what has already been said to the power of the President to create an office and then to appoint to it. It is very obvious, however, that the power to create offices belongs to Congress, from the language of the second clause of the second section of the second article of the Constitution, which speaks of offices which shall be es- tablished by law, and to which the President may appoint, With the advice and consent of the Senate. It is true that it authorizes the President “to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court,” etc. Whether, if there were no law establishing ambassadors, other public ministers and consuls, and judges of the Supreme Court, the President could appoint them, may admit of doubt. Certainly he could not appoint the judges of the Supreme Court until that court was organized under a law of Con- gress. That the President may employ agents of his own appointment to ascertain facts in reference to our foreign relations has had several precedents in our history; e.g., in the case of Mr. Mann, appointed by President Taylor to go to Hungary and report upon the condition of things there. In the employment of such agents the President does not create the Office, but he exercises the power as a proper means for the execution of the power clearly vested in him, of negotiating treaties and managing the foreign relations of the country. The question of the extent of the President's power in this regard arose upon the proclamation of neutral- ity issued by President Washington at the outbreak of the European wars between Great Britain, France and other countries, and the question was discussed with remarkable ability in the papers of Pacificus and the papers of Helve- tius, the first by Alexander Hamilton, and the other by 1 Message of January 26, 1877. Messages and Papers of the Presidents (Richardson), vol. 7, p. 430. § 363.] JEXECUTIVE DEPARTMENT. 751 James Madison; which may be referred to as containing the arguments of two great men upon this controversy. The only remaining power which has not been mentioned, under this head, wested in the President, is what is known as the “veto power;” but this has been so fully discussed heretofore" that further comment is deemed unnecessary. A singular question arose upon a message of President Grant of October 14, 1876, returning with his signature the River and Harbor Bill to the House of Representatives, in which he announced his objections to some features of the bill, and then said “if it was obligatory upon the execu- tive to spend all of the money appropriated by Congress, I should return the River and Harbor Bill with my objec- tions. . . . Without enumerating, many appropriations are made for works of purely private or local interest, in no sense national. I cannot give my sanction to these, and will take care during my term of office no public money shall be expended upon them. . . . Under no circumstances will I allow expenditures upon works not clearly national.” By the signature of the President the bill became a law; and it was the duty of the President to take care that the law be faithfully executed. In the face of this duty he announced that he should take care that the public money should not be expended upon those works which in his opinion were not national. It was competent for the President to have vetoed the whole bill, but, having signed the bill, it was not com- petent for him to refuse to execute a part of it and virtually to veto that part — a power which unquestionably did not belong to him. He must sign the whole bill or veto the whole bill. It did not seem to occur to the President that he was assuming the power expressed by James II. in 1688– to dispense with the execution of the law when it was his duty to execute it faithfully; that his failure to execute the laws was contrary to the British Constitution, and that this was the principal cause of his leaving the kingdom and abdicating the throne. In the Convention Parliament 1 Amte, § 213. 752 CONSTITUTIONALL LAW. [$ 363. a clear denunciation of this dispossessing power on the part of the Crown was inserted in their Bill of Rights; and yet the power assumed by President Grant in his message was to execute so much of the law as he approved and dispense with the residue. President Grant, with a view to enabling the President to veto certain appropriations in a general bill while sanctioning others, recommended an amendment to the Constitution to that effect, which was also done by President Cleveland in a later administration. The question was referred to the Committee on Judiciary in the 49th Congress in the form of resolutions to amend the Constitution so as to give authority to the President, When a bill contains more than one appropriation, and has passed both Houses, to veto any of the appropriations and approve the others. The committee reported against such an amendment, and the grounds upon which it was done may be seen by reference to the report." The prominent reason urged by the committee against such an amendment (which was incorporated into the Constitution of the Con- federate States) was that appropriations may be made by Congress for various purposes, all of which in their opinion it was proper to make, and which are voted for by members as dependent appropriations; the combining them in One bill is intended to prevent the partial exercise of powers for expenditures in one State which were proper to be made in other States and sections. The vote of Congress for any one of them is therefore secured for all on condition that each shall be valid. If the President, therefore, could by the veto power separate these dependent appropriations, and allow one class while the other classes were vetoed, it would give to him enormous and dangerous powers, against the will of Congress, to make partial and unjust discriminations be- tween the different sections of the country. 1 Report H. R. No. 1779, 49th Cong, 1st Sess. CHAPTER XIII. THE JUDICIAL DEPARTMENT. § 364. In the orderly arrangement of the Constitution, the first and second articles have prescribed the Constitution and defined the powers of the Legislative and Executive Depart- ments; the third article relates to the Judicial Department. The language of the first section is as follows: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished dur- ing their continuance in office.” This clause may be read in connection with the clause “to constitute tribunals in- ferior to the Supreme Court.” As was declared in refer- ence to the other two departments, this declares the judicial power of the United States shall be wested in one Supreme Court. “Judicial power,” not legislative or executive power. These three articles therefore seem to indicate the clear intention to keep the three departments of government in distinct hands, according to the famous maxim of Baron Montesquieu. The framers of the Constitution, looking to the independence of the judiciary and the independence of all the departments of the government, as well as to the passions and opinions of the people, following the prece- dent of the English government in the third year of Will- iam and Mary, made the tenure of the judicial office “dur- ing good behavior,” so that there is no power to remove a judge except under the clause in respect to impeach- ment. 1 Const. U.S., Art, I, Sec. 8, clause 9. 23 Madison Papers, 1365, 1458–59. 48 754. CONSTITUTIONAL LAW, [$ 364. Again, the Judicial Department, as an independent one, is essential to the paramount force of the Constitution. It was the intention of the framers of the Constitution that the judicial power should be the protector of the Constitu- tion against violation by either of the other departments, or by the States. Mr. Hamilton, in the Federalist, dis- cusses this point, upon reason which only foreshadowed the masterly judgment of the great Chief Justice in the case of Marbury v. Madison,” which rests upon the simple proposi- tion that, as between two laws or between two authorities, the Supreme must have effect given to it over the subordinate, in order to preserve the integrity of the Constitution. The court does not assume superiority over the legislative or exec- utive departments. By its judgment it gives its supremacy which is superior to all over the ultra vires acts of either of the departments, or of any officer or State. Without such a judicial power the paramount force of the Constitution. would have been paralyzed, and the departments of gov- ernment would have held practical Supremacy over the su- preme law of the land. In fact, it is the essential attribute of judicial power, wherever vested, whether in the Supreme Court or a justice of the peace, to give effect to the para- mount law, and where the supreme law and the subordinate law come into conflict, to declare that the former shall have effect and that the latter shall be null and Void. The clause: goes on to insure this independence by requiring that these judges shall not only hold their offices by the tenure of good behavior, but shall receive for their services a com- pensation which shall not be diminished during their con- tinuation in office. It may be increased, if Congress shall see proper to add compensation for services inadequately compensated, but it shall not be diminished. The power that holds the purse strings shall not starve a judge into compli- ance with its demands. This is distinguished from the pro- vision as to the President. His compensation shall neither be increased nor diminished during the term of office. It 1 No. LXXVIII, 21 Cr. 176. § 365.] JUDICIAL DEPARTMENT. 755 remains to consider in whom this judicial power is vested. The legislative powers were wested in a Congress; the exec- utive powers in a President. In whom shall the judicial power be vested? § 365. (a) In one Supreme Court. The unity of the court is assured in order to its supremacy. It is a constitutional court; not created by law, nor to be dispensed with by law, but to be organized by law under the terms of the co-efficient power. The Constitution does not prescribe of how many members it shall consist, hence Congress must make the laws necessary and proper to carry into execution the power wested in this one Supreme Court, in whom the Constitution of the United States wested the judicial power." It will be noted that the Constitution says nothing of the Chief Justice at all, but in a previous provision it is declared that the Chief Justice shall preside when the President of the United States is tried upon impeachment. This by clear inference enjoins upon Congress, in the organization of the Supreme Court, the creation of the office of Chief Justice. (b) The judicial power of the United States shall be wested not alone in one Supreme Court, but “in such inferior courts as the Congress may from time to time ordain and establish; ” and as already shown, this clause corresponds to a previous article of the Constitu- tion.” (c) As nothing is said in this clause as to the number of judges in the Supreme Court, Congress must, by law or- ganizing the court, determine this question; accordingly, the Judicial Act of 1789, drawn by the master hand of Oliver Ellsworth, prescribed all of the particulars in the organiza- tion of the Supreme Court; but it must be well noted that the jurisdiction of the Supreme Court is constitutional. Its or- ganization is defined by law, but when once organized it is the reception for all of the powers supplied from the judicial reservoir of the Constitution itself, from which Constitution, and not from Congress, save through the medium of the co- efficient power of Congress, it derives all of its authority. 1 Const. U. S., Art, I, sec. 8, clause 17. *Id, Art. I, Sec. 8, clause 9. '756 CONSTITUTIONAL LAW. [$ 365. What this authority is, wested in it by the Constitution, will be noted later. The jurisdiction of the inferior courts not being prescribed by the Constitution itself must be fixed and defined by Con- gress under the co-efficient clause, so often referred to. It will thus be noted that while the Constitution itself defines the jurisdiction of the Supreme Court, the jurisdiction of the inferior courts is prescribed and defined by law of Congress. As to the latter Congress has full discretion; as to the former it has none, except as a subsequent clause gives qualified power to Congress to make regulations. Under this power to ordain and establish inferior courts, as well as to make laws to organize the Supreme Court, there have been constituted and now exist, as the judicature of the TInited States, the following courts: First, a Supreme Court, now consisting of a Chief Justice and eight other associate justices. Second, circuit courts, district courts and interme- diate courts of appeal. Third, a court of claims, as to suits against the United States, established originally in 1853, with jurisdiction enlarged and qualified by the act of 1887. Fourth, courts in the Territories, which have been decided not to be United States courts, where therefore the judgeshold at pleasure and not during good behavior." It will be per- ceived, therefore, that if Congress had not bylaw exercised this co-efficient power above referred to, there would have been no Supreme Court of the United States of any kind, and the State courts would have been left as the judicial conserva- tors of the Constitution of the United States against uncon- stitutional laws by Congress or the States, and would have held all the jurisdiction which by the Constitution is in- tended to be conferred upon the Federal judicature; and so now, except so far as the judicial power has been delegated to and vested in the Federal courts by the Constitution and the acts of Congress, nor prohibited by it to the States, the latter has the complete reserve power to deal with all such 1 American Ins. Co. v. Canter, 1 Pet, 511; Cooley on Const. Law, 52, 53. § 365.] JUDICIAL DEPARTMENT, 757 questions under the tenth amendment to the Constitution of the United States. Further, the jurisdiction of the Supreme Court is defined by a subsequent clause of the Constitution in these words: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned (that is, mentioned in a previous clause which has not yet been referred to) the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.” Thus as far as the original jurisdiction is concerned, that is vested by the Constitution itself, without power of Con- gress to qualify or regulate it. But as to its appellate ju- risdiction, the Supreme Court holds it both as to law and fact, with such exceptions and under such regulations as the Congress shall make, thus giving to Congress a very large discretion in the limitation of the jurisdiction of the Supreme Court and in the regulation of such as it gen- erally exercises. Accordingly in the act of 1789, and of the other acts of Congress upon this subject, the discretion of Congress has been largely exercised in limiting and except- ing from its appellate jurisdiction a large number of the cases that are mentioned in the previous clause. So that the appellate jurisdiction of the Supreme Court and the ordinary jurisdiction of other Federal courts is capable, under the Con- stitution, of greater enlargement than has been prescribed in the acts of Congress. This will be qualified as we proceed. The general nature of the judicial power of the United States is described in the second section and first clause of this third article of the Constitution. The language will be quoted in full: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting am- 1 Const. U. S., Art. III, Sec. 2, clause 2. 758 CONSTITUTIONAL LAW. [$ 365. bassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, be- tween citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects.” This gen- eral system has always been analyzed into, first, cases which belong to the jurisdiction of the Federal courts because of sub- ject-matter; second, to cases which belong to the Federal juris- diction because of parties. The word “cases,” here used, and the word “controversies,” several times used in the above- quoted clause, may be defined as “where parties litigate be- fore a court as to rights of property or person.” Judge Tucker" distinguishes between cases and controversies thus: “Cases here seems to include all cases, criminal as well as civil, and controversies only such as are of the civil nature; ” and this distinction of Judge Tucker is in accord with the opinion of Justice Iredell in Chisholm v. Georgia,” and by Judge Story in his Commentaries.” Now the jurisdiction extends to all cases in law or equity; this obviously fixed in the Organism of the Federal judicature the two jurisdictions of common law and chancery. These jurisdictions were parts of every one of the original States, and that made this distinction between law and equity a part of the Constitution of the United States. These are constitutional branches of the Federal judicial procedure, and the new procedure which ignores this distinction in the States and the civil-law sys- tem in Louisiana, which never recognized it, will not be always left to ignore the distinction between these two branches of jurisdiction in any cases arising in a Federal court, though it may in a State where law and equity are not recognized as distinct jurisdictions.” The cases in law 11 Tucker's Blackstone, Appen- 4 Thompson v. Railroads, 6 Wall. dix, 420–21. 134; Hunt v. Hollinsworth, 100 U.S. 22 Dall. 419,431–32. 100; Northern Pacific R. R. v. Paine, 3 Story's Com., sec. 1668. 119 id. 561, and many cases cited, § 365.] JUDICIAL DEPARTMENT. 759 or equity arising in the Federal jurisdiction on account of subject-matter may be arranged under the following heads: First, cases arising under the Constitution of the United States; as where a law of the United States or of the States is repugnant thereto, and a right protected by the Constitu- tion is violated by the law, and in like cases where the ex- ecutive power trenches upon the personal and constitutional right of the citizen. Second, cases arising under treaties made under the authority of the United States; as where a right secured to a party under a treaty made under such authority is violated, the party may assert his right by a case as it so arises under treaty. Third, cases arising under the United States laws; and United States laws made in pursuance of the Constitution are the supreme law of the land." A personal right secured under such law of the United States, if violated, may be the subject of a suit for its windication. That is a case for Federal jurisdiction aris- ing under the laws of the United States; thus, cases in bank- ruptcy, cases of patents, copyrights, and so on. In the case of Boyd v. Webraska,” Boyd claimed, under thematuralization law of the United States, that he was eligible to the office of Governor of Nebraska. The State denied it to him, and he asserted his right before the Federal courts, and the Supreme Court adjudicated in his favor. It was a case of right to a State office, arising under the law of the United States, and yet denied to him by the State. Fourth, admiralty and maritime jurisdiction. The vindication of this jurisdiction being wested in the Federal courts will be found strongly stated in the Federalist.” A word may be added in respect to it. To have left the final arbitrament of cases involv- ing the repugnance of the law of Congress or of the State to the Constitution of the Union, or any right secured by the Constitution of the United States to a person, or by 2 a treaty made under its authority, or of the law made in pursuance thereof, to the jurisdiction of the local courts of the States, would have not only subjected this class of ques- 1 Const. U. S., Art, WI, clause 2. 8 No. LXXX, 2143 U. S. 135. 760 CONSTITUTIONAL LAW. [$ 366. tions to as many contrary decisions as there were States in the Dnion, but would have paralyzed the essential force of the Constitution itself, by subjecting the extent of its operations to the judgment of local courts. It was therefore reasonable to confer upon the courts, created under the authority of the United States, to windicate in their full integrity the pro- visions of the Constitution itself as well as the laws and treaties made under its authority. Again, as admiralty and maritime jurisdiction belongs to the realm of commerce, and must be under the supervision of the power which regu- lates foreign and interstate commerce, it would become a ne- cessity to subject the construction of the laws made by Con- gress in reference to commerce and the general questions of commercial relations with foreign nations and among the several States, not to the local tribunals of the several States, but to judicial tribunals who held their authority under all the States in their united character. § 366. As to the jurisdiction which grows out of the char- acter of the parties without regard to subject-matter, that may be defined as follows: First, where ambassadors, other public ministers and consuls are affected. Every govern- ment, by international law, is responsible to foreign nations for the treatment of their ambassadors, public ministers and consuls. Improper treatment may be a casus belli. The gov- ernment which receives them and deals with them is re- sponsible for their treatment, and should have in its own organization the means to meet the demands which interna- tional duty imposes. To leave cases affecting these public officers of foreign nations, sent to deal with the government of the United States, to the jurisdiction of the State courts would be an anomaly in our system. The courts for the trial of such cases should, therefore, be those of the United States, and that irrespective of the subject-matter of the case. Second, “to controversies to which the United States shall be a party.” Cases in which the United States are interested could not properly be left to the jurisdiction of the local courts of the place. There would be as many diverse decis- § 366.] JUDICIAL DEPARTMENT. 761 ions in respect to the rights as there were States in the Union. The rights of the United States can therefore only properly be asserted and vindicated in the courts of the Union. Third, “to controversies between two or more States.” How could a fair and just arbitrament of such controversies be found in the courts of either of the States involved in the controversy, and where could a fair and im- partial arbitration be sought but in the courts of the whole Union. Fourth, “between a State and citizens of another State.” If the other State courts were left to decide such a controversy, could the opposing State hope for impartial- ity? The courts of the Union are therefore selected as those which must decide such a controversy. Fifth, “between citizens of different States.” The same danger of partiality would arise here, for the court of the State of the defendant would naturally be inclined to favor the defendant against the stranger plaintiff. The court of the Union, though held in the State of the defendant, is therefore selected as the fairest tribunal for the trial of the controversy. Sixth, “between citizens of the same States, claiming lands under grants of different States.” The courts of either of the States granting the land might naturally be supposed to sup- port the title conferred by the State to which they belonged, and hence the jurisdiction for such cases was sought in the more impartial attitude of the courts of the Union. Sev- enth, “between a State, or the citizens thereof, and foreign States, citizens or subjects.” In this case the same reason would apply to give to the United States courts the juris- diction instead of the courts of the State whose own interest, or that of their citizen, was in controversy with a foreign State or a foreign citizen or subject. It will thus be seen by this brief review that the framers of the Constitution were sagacious in selecting the Federal tribunals for the decision of cases where the character of the parties would make the decision of the State tribunals less fair and impartial in the decision of these controversies than the local courts of the States. So that we see, in the '762 CONSTITUTIONAL LAW. [$ 366. reason of the thing, the vindication of the wisdom of the Constitution, which wested in the judicial power of the United States the decision of these two great classes of cases. ‘First, where the subject-matter of the case, without regard to the character of the parties; and second, where relations of the parties, without regard to the subject-mat- ter in controversy, make it proper to west the jurisdictionin the Federal rather than in the State courts. The language of the clause extends the judicial power to all cases arising under the Constitution, etc.; to all cases affecting ambassadors, etc.; to all cases of admiralty and maritime jurisdiction; and then changes the phraseology as to the other classes of cases already referred to, extend- ing the Federal jurisdiction to those cases, but not to all such cases. The insertion of the word “all” as to some of these, and the exclusion of it as to others, Would seem to in- dicate, as a fair construction of the whole, that those cases where the word “all” is used may, by the action of Con- gress in defining the jurisdiction of the inferior courts which it is authorized to ordain and establish, and in those cases where the Supreme Court's appellate jurisdiction is to be subject to such exceptions and regulations as Congress shall make, be exclusively given to the United States courts. But as to those where the word “all” is not used, the State judiciary may be left to have concurrent jurisdiction with the Federal courts, but subject to the power of Congress to bring them within the Federal jurisdiction. It has been held in a number of cases that in these cases of concurrent jurisdiction, whichever court, Federal or State, gets jurisdic- tion first of the subject-matter or of the parties, will hold it against the interference of the other." The scheme of the judicial department was obviously, first, to make the judicial power commensurate with the ex- 1 Smith v. McIver, 9 Wheat. 532; 24 id, 450; Noonan v. Bradley, 9 Hagan v. Lucas, 10 Pet. 400; Shelby Wall. 404; Covill v. Heyman, 111 v. Bacon, 10 How. 56; Ableman v. U. S. 175; Rio Grande R. R. v. Go- Booth, 21 id. 506; Freeman v. Howe, nida, 132 id. 478. § 367.] JUDICIAL DEPARTMENT. 763 ecutive and legislative powers of the government. Second, to make all cases which concern all of the States, or any of the States, or the citizens of the different States, cognizable by the Federal courts, and not leave them to the adjudication of any one of the States. Third, to provide that what con- cerns the relations of each of the States to foreign nations, or to the people of foreign nations, must be adjudged by the tribunals constituted by all of the States, and not by those constituted by any one State. All being interested in the re- sults of the adjudication in such cases, the rights of all should not be subject to the capricious or partial action of any one. § 367. We will proceed now to consider these various branches of jurisdiction in consecutive Order. First, all cases arising under the Constitution, etc., shall be within the scope of the judicial power of the United States. From what has been already said, it will be seen that it is of the nature of judicial power to decide upon the constitutionality of any law or act of the government. The supremacy of the Con- stitution over all such laws and acts is admitted in theory; but how shall this supremacy be made effectual, unless in the decision of controversies arising, etc., if the courts try- ing the question cannot give practical Supremacy to the Con- stitution by declaring the law or act of the government inoperative, null and void P. It is therefore of the very nature of judicial power to subordinate the laws and acts of the government to the Constitution by declaring such acts to be null and void where they conflict with the Constitution. The leading case of Marbury v. Madison, in which the masterly judgment of Chief Justice Marshall has exhausted the reasons for this principle, is all that may here be referred to. That such a power was contemplated by the Constitu- tion is evident from the writings in the Federalist.” It is obvious, however, that the judicial power of each State, in deciding upon a case arising under the Constitution, might be in favor of the constitutionality of the law or act of the government, and the decision in another State might 1 1 Cr. 137, 176. 2 Nos. LXXX, LXXXI, LXXXII. '764. CONSTITUTIONAL LA W. [$ 367. be against it. The effect of these diverse decisions upon the same class of cases arising under the Constitution, while con- clusive as to the particular controversy, would make the Constitution in effect different in the different States and in its application to these various cases. The Constitution itself, therefore, declared to be the supreme law of the land, would be one thing in one State and a different thing in another State. This would be not only an anomaly in our system, but a great grievance; for instead of one uniform Constitution operating either upon all the States and the people of the entire Union, we should have as many Constitutions, in effect, as there were diverse opinions among the State judges de- ciding upon such questions. It is therefore of the first importance that some means should be devised, and that through the judicial department, for making the Constitution uniform in its operation by uniform decisions as to its mean- ing in every State in the Union and binding upon all the peo- ple of all the States. How is this uniformity to be reached P Some device must be invented by which these diverse de- cisions may at last be brought to the arbitrament of the One Supreme Court in whom the judicial power of the United States is vested. This would make the Constitution uniform in its effect, as it is in theory, and in no other way can it be done. Modes of doing this were possible. Con- gress might so constitute the inferior Federal courts as to give them exclusive jurisdiction over such cases as by the Constitution were within the scope of their jurisdiction. But this would be a great evil, e. g.: a suit by a citizen of New York against a citizen of Virginia is between citizens of different States, and therefore within the jurisdiction of the Federal courts. But to make it exclusive in these courts would require a suit for $5, as well as a suit for $100,000, to be brought in the United States court, which, looking to the distance of these courts, in many cases, from the parties and witnesses whose attendance would be nec- essary, would make the expenses of litigation too onerous to be borne. Besides, every lawyer will see at once that the § 367.] JUDICIAL DEPARTMENT. 765 Federal question, wherein the cases may be said to arise under the Constitution, may never emerge in the course of the controversy until upon the trial of the cases, which would be after the court had taken jurisdiction. In other words, the State court in limine would seem to have full jurisdiction, but the constitutional question, supervening in the course of the trial, would show that the Federal court might have had jurisdiction. Hence, in the Judiciary Act of 1789, this exclusiveness of jurisdiction in the Federal courts was reversed and the limit of that jurisdiction is found in cases where the amount involved in controversy was $500, and now by the act of 1887 raised to $2,000. This first method, therefore, was never adopted, as being impracticable. Second, another method might have been adopted: to authorize a removal of a case begun in the State court to the Federal court whenever a constitutional question was involved; but this was inconvenient and impossible for the reason already suggested, that the constitutional question might not emerge until the trial of the case was begun. The original jurisdic- tion, therefore, could not by anticipation be fixed in the Fed- eral court, because non constat the Federal question might ever arise. But this process of removal has been adopted from the beginning where the character of the phrase in- Volving a constitutional question was apparent from trial. This will be referred to hereafter. Third, it might have been made lawful to litigate in the United States court a controversy once adjudged in the State court, when it was apparent that such adjudication involved a constitutional question proper for the judgment of the Federal court; but this would be very awkward and inconvenient. Fourth, an- other method was adopted by the act of 1789 and has con- tinued until this day. The twenty-fifth section of that act provided that when the highest appellate court of the State decided adversely to a right claimed under the Constitution of the United States, or under a treaty or law of the United States, the party so decided against might appeal from the supreme appellate court of the State to the Supreme Court of 766 CONSTITUTIONAL LAW. [$ 367. the United States. This allowed to the litigants all the ad- vantage which they might claim from the litigation being conducted in the local State court. The party whose con- stitutional-right might be supposed to be violated by the decision of the inferior court was required to secure the vin- dication of his right by final appeal to the supreme appel- late court of the State. If this last decided adversely to his claim, he could make his appeal to the jurisdiction of the Supreme Court of the United States. The constitutionality of this law was fiercely contested in the early part of the century on the ground that the appeal from the highest State court to the Supreme Court of the United States assumed the relation of the superiority of the one to the other when it was held that each was supreme in its own ascertained sphere and there was nothing in the Con- stitution to make the judicial power of the United States supreme upon appeal over the judicial power of the State. It was contended that the Federal and State judiciary consti- tuted co-ordinate departments of two distinct governments, and neither held the relationship of supremacy on appeal. The reasoning on this subject will be found in full in the great case of Fairfaa, v. Hunter." In this case an appeal was taken from the decision of the Court of Appeals of Virginia to the Supreme Court of the United States, and in Martin v. Hunter” the decision of the Virginia Court of Appeals was reversed, and the Supreme Court issued its mandate to the Court of Appeals to substitute the decision of the Supreme Court in place of its own. The Court of Appeals refused to obey; the Supreme Court declined to attempt to compel obedience by a further procedure, but by its own officer put the party prevailing under the decision of the Supreme Court of the United States in possession of the property in controversy.” 14 Munford's Rep. 1. Winchester, Virginia, a nephew of 21 Wheat, 304. the Chief Justice, these facts in ref- *The author, after searching in erence to the action of the Su- vain in the record of the Supreme preme Court, and the end of that Court for any evidence on this sub- controversy. See also Williams v. ject, obtained from Mr. James Mar- Bruffy, 102 U. S. 248. shall, a very eminent lawyer of § 368.] JUDIOIAL DEPARTMENT, 767 That was the end of the conflict. In the case of Martin, v. Hunter the Supreme Court agreed that the twenty-fifth section of the act of 1789 was constitutional, and in Cohens o, Virginia Chief Justice Marshall vindicated it in one of his most famous opinions. It is unnecessary to discuss the merits of this celebrated controversy, for the State courts throughout the Union, in Virginia as well as in the other States, have rec- ognized the finality of the decision of the Supreme Court, and for nearly eighty years this has been established in all Of the courts as a settled construction of the Constitution. Besides, an analysis of this twenty-fifth section will show that it adopts a more convenient system for the people in securing trial of these cases in their early stages by State tribunals and under local influence, which would not have been the case if either of the other methods referred to had been adopted. § 368. We proceed to analyze this section. First, the Su- preme Court of the United States, in the cases provided for by it, is given the final appellate jurisdiction. The original trial and procedure is in the inferior court of the State. From the decision of this inferior court an appeal must be taken medi- ately or immediately to the highest appellate court of the State itself. Again, upon this appealin the Supreme Court of the United States, nothing will be held as ground for reversal of the decision of the State court unless that decision rested on a ground which involved a right under the Constitution or a treaty or law of the United States, and such decision must have been adverse to such right as claimed.” If, however, the State appellate court so decides by a divided court, so that the decision of the inferior court would stand affirmed, an appeal still lies to the Supreme Court of the United States; * or if the State appellate court denies an appeal from the decision of the inferior State court, which was adverse to such rights so claimed, an appeal still lies to the Supreme 16 Wheat, 264, 3 Antoni v. Greenhow, 107 U. S. 2 Hartman v. Greenhow, 102 U. S. 769, 672; Boyd v. Thayer, 143 id. 135. 768 \ CONSTITUTIONAL LAW. [$ 368. Court of the United States." But if the decision of the State appellate court rests on some ground other than one involving the rights so claimed under the Constitution, or a treaty or law of the United States, no such questions arising in the cases, the Supreme Court of the United States will not have jurisdiction upon appeal, and if an appeal be taken will con- sider no error in the decision other than where it rests upon a decision adverse to the rights so claimed under the Con- stitution. The Constitution gave this jurisdiction to the Supreme Court that it might be the guardian of the Con- stitution of the United States, their treaties and their laws, but not upon any other ground.” It thus appears that this twenty-fifth section was faithfully guarded so as to give the State court the exclusive and final jurisdiction of any case, though a question of a right under the Constitution, or a law or treaty of the United States, may arise therein, unless the decision of the State court necessarily involves the denial of the rights so claimed by each party in the case. Cases without number arising under the Constitution have thus been decided by the Supreme Court of the United States, the citation of which will be made as occasion calls for it hereafter. A few may be cited where the constitutionality of the law has been in question.” The unconstitutionality of the act of the Executive Department in Milligan's Case was adjudged and the sentence annulled.” Where an inferior United States court convicts a person without having jurisdiction to try, the Supreme Court, hav- ing no appellate jurisdiction in such cases, will, upon habeas corpus, discharge the convict.” Where State laws are in vio- lation of the Constitution, decisions of the State courts giving effect to them have been reversed by appeal in the Supreme 1 Williams v. Bruffy, 102 U. S. 248; 8 Marbury v. Madison, 1 Cr. 137; Choffin v. Taylor, 114 id. 309. Boyd v. Thayer, 143 U. S. 135. * Murdock v. Memphis, 20 Wall, 44 Wall. 2, - 590; Spies v. Illinois, 123 U. S. 131; 5 Bain’s Case, 121 U. S. 1; In re Henderson Bridge Co. v. City of Ayres, 123 id. 443; Fitts et al. v. Mc- Henderson, 141 id. 679; Hamblin Ghee et al., 172 id, 516. v. Western Land Co., 147 id. 531; Eustis v. Bolles, 150 id. 361. § 369.] JUDICIAL DEPARTMENT. 769 Court. Under this head the cases are innumerable." Thus, however a constitutional right may have been invaded, whether by Congress or any of the departments of the gov- ernment, or by State law or any other action of a State, on appeal to the Supreme Court of the United States the integ- rity of the Constitution will be vindicated, and all laws violating that Constitution will be adjudged null and void. This clause goes farther. The Supreme Court, under this twenty-fifth section, can by appeal annul any violation of a right claimed under a treaty made under the authority of the United States. This was done in the case already cited of Martºn v. Hunter,” where a treaty right was involved. So this twenty-fifth section applies to rights claimed under a law of the United States. If the law is valid, then, in ef. fect, this right is under the Constitution of the United States, because under a law passed in pursuance of it; and when such right is violated by a State court, the decision will be reversed and the right upheld, as in the case of Boyd v. We- braska,” already referred to. § 369. Further, this judicial power extends to all cases in law and equity, whether cases at common law or cases in the chancery. Mr. Hamilton has vindicated the propriety of retaining these distinct jurisdictions in the Federal courts with his usual ability.” This first clause uses the words “shall extend to all cases.” This clearly means that while Congress has power under the succeeding clause to make exceptions from, and regulations of, this appellate jurisdiction, yet that Congress has the power to extend the jurisdiction to all cases without the exceptions and without any rule abridging it. The judicial power extends to all such cases as it would seem should not be abridged or abated by any action of Congress. 1 Dartmouth College Case, 4 stein v. Lynham, 100 U.S. 483; Geo- Wheat. 518; Virginia Coupon Case, froy v. Riggs, 133 id. 258. 114 U. S. 269, \ 8 143 U. S. 135. 21 Wheat. 304, See also Hauen- 4 The Federalist, Nos, LXXX- LXXXIII, 49 770 CONSTITUTIONAL LAW. [$369. The next clause which calls for comment is in these words: “to all cases affecting ambassadors, other public min- isters and consuls.” It is Only necessary to say that the ex- tension of the judicial power to all these cases, and especially by a subsequent clause giving the Supreme Court original jurisdiction in such cases, manifested the wisdom of the framers of the Constitution in preserving the peace of the whole country in its relations with foreign countries. Public ministers of either class are the immediate representatives of their sovereigns. They are invested with an exterrito- riality while resident in the country to which they are sent, which gives them immunity from all the laws of the latter. These immunities are determined by the law of nations. If the immunities and privileges of these public functionaries are invaded while they reside in the United States, the sov- ereign sending them can make it a subject of international controversy which may end in war. Should suits in which these public persons are interested be left to the courts of the States it would be a dangerous anomaly. The govern- ment of the United States is responsible to the sovereign sending a public minister for his exemption from every- thing which trenches upon his exterritorial immunities and privileges. It is therefore clear that the judicial power of the government, internationally responsible for matters affecting these public ministers, would be clothed with com- plete power to try all cases affecting them." Therefore in the subsequent clause it is provided that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors. Under this provision an indictment against one who has offered violence to a minister has been held not to be a case affecting the ambassador. It is a case affecting the United States, in which the ambassador has no concern.” But if a suit be brought against a foreign 1 See opinion of Chief Justice 2 United States v. Ortega, 11 Marshall in The Exchange v. Mc- Wheat, 467. Faddon, 7 Cr. 478; Story on Consti- tutional Law, pp. 1652–54, § 369.] JUDICIAL DEPARTMENT. 771 minister, the Supreme Court alone has original jurisdiction, and so it would seem with any one connected with his lega- tion. This jurisdiction has been very much affected by Congres- sional legislation. As the language extends the jurisdic- tion of the judicial department to all cases affecting ambas- sadors, etc., it involves the power of Congress to make this jurisdiction exclusive of that of State courts. But though original jurisdiction is given by a subsequent clause, in such cases, to the Supreme Court, it has been held that as there are no words to negative the power of Congress to confer original jurisdiction on the inferior courts ordained and es- tablished by it, Congress has wested the jurisdiction in such cases in these inferior courts. There were some dicta in earlier cases which were adverse to this construction of the Constitution, but in the later case of Boss v. Preston," after a full review of all of these decisions, the court adopted the view taken by Chief Justice Taney in the case of Gid- dings v. Crawford,” and held that the original jurisdiction given to the Supreme Court in cases of ambassadors is not exclusive of the jurisdiction which Congress may vest in the inferior courts of the United States, but that Congress can make such jurisdiction in the Federal courts exclusive of that in the State courts. So that it seems that the present state of the law upon this question is that the dis- trict courts of the United States and the Supreme Court have concurrent jurisdiction of “suits against ambassadors or other public ministers,” or their domestics, or domestic servants, Or against consuls or Vice-consuls, and that, ex- cept as to consuls and vice-consuls, all jurisdiction in the Federal courts is exclusive of the jurisdiction in the State courts. The decision of Ames v. Kansas,” in which Chief Justice Waite reviewed the decisions, is in accord with the decision in Boss v. Preston. Reference is made to these de- 1 111 U. S. 252. $111 U. S. 449. *Taney’s Decisions, 1. - *772 CONSTITUTIONAL LAW. [$ 370. cisions so reviewed, and to the statutes bearing upon the subject." It is further agreed that the circuit court of the United States, which has no jurisdiction of a suit against a consul, but has jurisdiction of a suit against an alien, may have jurisdiction of such, though the alien be a consul; and it seems, though the defendant does not plead to the jurisdic- tion, the court will inspect the record and dismiss the suit in the interest of the foreign government whose privileges are involved, and not in the mere personal interest of the defendant. This power of Congress to regulate the juris- diction of the courts, except as expressly fixed by the Consti- tution itself, results from the several purposes mentioned, to wit: The power to constitute tribunals inferior to the Su- preme Court,” and the clause which vests all judicial power in a Supreme Court and in such inferior courts as Congress may ordain and establish, taken in connection with the power to pass all laws necessary and proper to carry them into execution. It has been the purpose of the legislation of Congress from time to time, sanctioned by the decisions of the Supreme Court just cited, to use these large powers which have produced the results summarized in Boss v. Pres- ton, supra, as to jurisdiction affecting these foreign offi- cials. The purpose has been to retain, as far as possible, the jurisdiction of the Federal courts over all questions affect- ing the official representatives of foreign powers in the inter- est of the public peace, which would be jeopardized if the jurisdiction in these cases was left to the local State courts of the Union. § 370. The next clause to which attention will be directed is in these words: “to all cases of admiralty and maritime jurisdiction.” By recurring to the powers of Congress, we 1 United States v. Ortega, 11 738; Marbury v. Madison, 1 Cr. 137; Wheat. 467; United States v. Ra- R. S. U. S., secs. 563, 629, 711; Act vara, 2 Dall, 297; Davis v. Packard, of Feb. 18, 1875 (18 Stats, at Large, 7 Pet. 276; Cohens v. Virginia, 6 318). Wheat. 264; Osborne v. Black, 9 id, 2 Const. U. S., Art, I, Sec.8, clause 9. $ 370.] JUDICIAL DEPARTMENT. " 773. find (art. I, sec. 8, cls. 10 and 11) that Congress has power in respect to offenses committed on the high seas and against the law of nations, connected with the power to declare war, grant letters of marque and reprisal, and make rules concern- ing captures on land and water. These relate very largely to the rights of the United States in case of war, and to their rights in time of peace. It is well known that, by the rules of international law, captures upon the high seas are adjudi- cated only in the courts of prize in the country of the cap- tor. That these adjudications should be left to any other courts than the courts of the United States would have been a blunder not to be attributed to the framers of the Consti- tution. Therefore, as under the term “cases in admiralty”, are included all cases of prizes and the like, the propriety of vesting this branch of the admiralty jurisdiction in the exclusive jurisdiction of the United States courts is eminently proper. “All cases” are indicative of their purpose. Prize cases were within the exclusive jurisdiction of admiralty in England, and the clauses of the Constitution above re- ferred to make the jurisdiction of the State courts in such cases out of the question. The Articles of Confederation” vested this jurisdiction in the Federal government, and the laws necessary and proper to carry into execution this judi- cial power as to admiralty make exclusive jurisdiction nec- essary and proper.” But what other cases are implied in these words? There was great contention in England between the admiralty and common-law courts as to this jurisdiction, which was settled by the statutes of Richard II. and Edward III. A history of this contention may be seen in the dissenting opinion of Mr. Justice Campbell in The Magnolia.” In the case of War- ing v. Clarke" the Supreme Court held that the admiralty 1 Art. IX. 320 HOW, 324, 2 United States v. Bevans, 8 45 How. 441. Wheat. 387; Houston v. Moore, 5 id, 49. 774 CONSTITUTIONAL LAW. [$ 370. jurisdiction was not limited or to be interpreted by the Eng- lish admiralty rules, and that a collision upon a river, as far as the tide ebbs and flows, though infra corpus comiţa- tus, is within these terms in the Constitution; and this case was followed in The Lewington, in St. John v. Payne,” and The Wew Jersey.” The reasons for the constricted jurisdic- tion of admiralty under the influence of the statutes of Rich- ard II. and Edward III., and under the potent influence of the opinions of Lord Coke, are stated with great force by Chief Justice Taney in his dissenting opinion in Taylor v. Carryl." This opinion of the Chief Justice was obviously intended as an answer to the dissent of Mr. Justice Camp- bell in The Magnolia, supra, and should be read in connec- tion with that dissent in order to a full understanding of that subject. In the important case of Wew Jersey Steam Wavigation Co. v. Merchants' Bank,” the Supreme Court, reviewing previous cases,” held that when the subject-matter arose out of trans- actions upon the high seas or within tide, though within the body of the county, the jurisdiction was within admiralty. To this there was strong dissent, by the opinions of Justices Daniel and Woodbury. The drift of the decisions in these cases and others' confines the jurisdiction to cases where the vessel was engaged in maritime commerce in tidal waters. I3ut in The Genesee Chief" the Supreme Court took a new departure, with an earnest dissenting opinion from Mr. Jus- tice Daniel. The opinion of Mr. Chief Justice Taney in this case sustained the act of Congress of 1845.” He held that the admiralty jurisdiction in England was confined to tidal waters, because their tidal and navigable waters were in 16 How, 244. 7. The Thomas Jefferson, 10. Wheat. 2 10 How, 557. 498; Steamer Orleans v. Phoebus, 3.10 EIow. 586. 11 id. 175; The Santissima Trinidad, 420 HOW, 583. 7 id. 324, 56 How. 344, 8 12 How, 443. 63 Dall. 297; 2 Cr. 406; 4 id. 443; 9 Stat. at Large, p. 726. 1 Wheat. 9; Id, 20. ** § 370.] JUDICIAL DEPARTMENT. 775 substance synonymous, for all tidal waters were navigable, and none were navigable which were not tidal; but he held that the test of admiralty was not the character of the water, but the character of the stream; if it was navigable, whether it was fresh or tidal, admiralty jurisdiction attached. This opinion and this decision was the initial point of a series of decisions which has established as the law that the naviga- bility of the stream, or of the water, is the characteristic from which arose the admiralty jurisdiction. This was fol- lowed immediately by Fretz v. Bull," with the same dissent as in the case of The Magnolia, supra; the court made the same decision with the dissent of Justices Catron, Daniel and Campbell. In the case of De Lovio v. Boit,” Mr. Justice Story, in 1815, had indicated an opinion in favor of an en- largement of the admiralty jurisdiction; a decision which Mr. Justice Campbell declared was recognized as not law in the later case of Insurance Co. v. Younger.” It was held, how- ever, in two cases," that where the contract of affreightment and for repairs was as to a voyage of the vessel between two ports of the same State, the admiralty jurisdiction did not attach; but these decisions were disapproved in The Com- merce,” and the admiralty jurisdiction was upheld even as to the Voyage between two ports of the same State. In The Dottawanna," Mr. Justice Bradley, for the court, sanctioned the decision in The Genesee Chief case, and held that the Constitution, by these words “admiralty and maritime juris- diction,” intended “to adopt the general system of maritime law which is familiar to lawyers and statesmen when the Constitution was adopted; ” but the Constitution, he said, did not define this jurisdiction nor fix the limits between the local and maritime jurisdiction. This, he said, was a judicial question; and that while the court cannot make, but can only 1 12 HOW. 446. 61 Black, 578. Accord: The 22 Gall. 395. Steamer St. Lawrence, id. 522. 32 Curtis' Rep. 322. 621 Wall, 558. 4 Allen et al. v. Newberry, 21 How. 245; McGuire v. Card, id. 250. - Tſ6 CONSTITUTIONAL LAW. [$870. declare, the law, Congress can change it under the commerce power. To this decision there were two dissenting opin- ions. The term “navigable rivers” was held to mean those which are such in fact." In The Hône v. Trevor the decision sustains The Genesee Chief, and upholds the admiralty juris- diction in the district courts of the United States as exclusive of the State courts. In the case of The Scotland” it was held that the general maritime law was binding only so far as it was adopted in any particular country. In Ee parte Boyer” the admiralty jurisdiction was extended to the cases of the collision of tow-boats on a canal between two points in the State of Illinois.” In The Alaska,” refer- ring to The Harrisburg," it was held that no suit in admi- ralty could be maintained for the death of a person, unless Congress gives the remedy or it is given by a State. In the case of The Steamer Eclipse 7 it was held that a court of ad- miralty cannot administer an equitable remedy. In In re Garnettº the law of Congress creating a limited liability, in case of tort, was thus made a part of Our maritime law, and in this case all the cases were reviewed and the decision was unanimous in its sanction of the Genesee Chief decision. The act of 1851, creating limited liability,” is in accord with these decisions. The distinction between admiralty and mari- time jurisdiction is thus stated by Judge Cooley, quoting Judge Story: “The first (that is, admiralty) respects acts or injuries done upon the high seas, where all nations claim common right and common jurisdiction; or acts or injuries done upon the coasts of the sea; or, as for these, acts or injuries done within the ebb and flow of the tide. The sec- ond (that is, maritime) respects contracts, claims and serv- ices purely maritime, and touching rights and duties apper- 1 The Daniel Ball, 5 Wall, 557; 5 130 U. S. 201. The Montello, 20 id. 430. 6 119 U. S. 199. 2 105 U. S. 24. 7 135 U. S. 599, 3 109 U. S. 629, 8141 U. S. 1. 4The Belfast, 7 Wall, 655; Aldrich 9 R. S., secs, 4282–89; The Corsair, v. AEtna Co., 8 id. 491. 145 U. S. 335. § 371.] JUDICIAL DEPARTMENT. 777 taining to commerce and navigation. The former (that is, admiralty) is again divisible into two great branches—one embracing captures and questions of prize arising jure belli; the other embracing acts, torts and injuries strictly of civil cognizance, independent of belligerent operations.” This quoted Statement must be qualified so as to take in, under the decision of The Genesee Chief, the great lakes and their navigable waters, and the great rivers, even though their navigable course may be entirely within the limits of a single State; and in The Commerce” it was held that this jurisdiction had not depended on the Congressional power to regulate commerce, but upon the judicial power over cases of admiralty, as to which Congress can pass laws to carry it into execution. The Federal jurisdiction, therefore, includes cases of collision on navigable lakes or rivers; of vessels en- gaged in commerce between ports of the same State and occurring within the body of the county; and also contracts of affreightment, though to be carried out in the State where made.” + § 371. From this rapid review it will be seen how ex- tended, at this day, the admiralty jurisdiction has become, as compared with what it was in an earlier period of the government. This is due largely to the fact of the great extension of our commerce, foreign and domestic, and espe- cially to the fact that our commerce upon the navigable fresh waters of the Union, the lakes and great rivers, has become SO enormous as to have produced great inconvenience, if the admiralty jurisdiction had not been extended to commerce upon these fresh waters, and had been left to the courts of the States. The broad and sagacious opinion of Chief Justice Taney in the Genesee Chief Case widened the scope of ad- miralty jurisdiction without any detriment to the interests of commerce or the reserved jurisdiction of the State. This juris- diction may be now said to embrace among others the follow- 1 Cooley's Const. Law, p. 130. 8The Belfast, 6 Wall. 624. 21 Black, 578; Waring v. Clark, 5 How, 441. 778 CONSTITUTIONAL LAW. [$ 371. ing cases: The case of salvage, bottomry bonds,” seamen's wages,” charter-party and affreightment of ship, cases of mari- time injuries, and maritime liens." It is not necessary in this work to go into the principles of admiralty practice. This has been regulated by Congress, and rules under its legislation have been prescribed by the Supreme Court. Some cases may be referred to in the note.” It may be well to state that as the power of Congress to legislate so as to vest the complete ju- risdiction in admiralty in the courts of the United States is nearly connected with its power “to regulate commerce’” between the States and with foreign nations, it has been held that Congress may pass laws regulating the mode of navigation by vessels engaged in such commerce, and the violation of such regulations would therefore become the subject of admiralty jurisdiction. The rules, therefore, pre- scribed for navigation are within the powers of Congress, and Congress may enact laws for the sale and mortgage of vessels, rendering them invalid as against bona fide pur- chasers unless duly registered at the custom-house, and mak- ing other regulations for the safety of passengers, and such statutes may be enforced in the admiralty courts.” But though Congress may regulate the navigation of the waters of the United States, and the vessels employed therein may be subject to the admiralty jurisdiction, the ownership of the Water and of the fish which it contains, and of the soil be- neath, remains in the States." These State rights do not appertain to navigation and therefore are not subject to admiralty; nor can admiralty take cognizance where the damage is wholly on land, or to a bridge injured by a pass- 1 12 Pet, 72; United States v. Coombs, The Blackwell, 10 Wall, 1. 2 Carrington v. Pratt, 18 How, 63. * Leon v. Galceran, 11 Wall, 185. 4The Belfast, 7 Wall. 624. * Phillips’ Practice in the Federal Courts; also the rules prescribed in 3, 10, 13, 17 and 21, Howard's Re- ports. See also Allen v. Newberry, 21. How. 244; Andrews v. Wall, 3 id. 568, 6 Steamship Co. v. Manufacturing Co., 109 U. S. 578; Ex parte Boyer, id, 629; The Belfast, 7 Wall. 624. 7 United States v. Bevans, 3 Wheat. 336; McCready v. Virginia, 94 U. S. 391; Smith v. Maryland, 18 How, 71. § 372.] JUDICIAL DEPARTMENT. 779 ing vessel, nor where a fire on board the ship is communi- cated to buildings near which she is moored." But where damage is done to the ship by a bridge or other structure, or by defect in the dock, or from piles left in a stream, redress may be had for the ship in admiralty.” The juris- diction of the admiralty is so far exclusive that no State or federal tribunal can take jurisdiction of a pure proceed- ing in rem.” But the courts of common law or of equity may entertain a suit in personam on a maritime contract, and execute the decree by attaching the vessel, or taking it in execution as in case of other chattels, but they can- not proceed against the vessel in rem, or affect it with a lien, except through their jurisdiction over the person of the owner.” So under the Judiciary Act of 1789, which saves the right to a party to a suit at common law on any tort or con- tract, a party may institute suit in personam in the common- law Court.” § 372. One question remains to be considered: How far, under the admiralty jurisdiction, can crimes be punished? In the case of R. v. Keyn" the English court discussed the question whether a man could be tried in the Lord Ad- miral's court within the marine league of the English coast, and a majority of the court doubted whether by interna- tional law the marine league was a part of the territory of England, though by act of Parliament it might be made so. The minority held that it was within the territory of England. The Only question considered in that case was as to the jurisdiction of the court which succeeded the Lord Admiral's jurisdiction, and it was held that the court had 1 The Plymouth, 3 Wall. 20; John- son v. Elevator Co., 119 U. S. 388. 2 Railroad Co. v. Towboat Co., 23 How. 209; Leathers v. Blessing, 105 U. S. 626; Cope v. Dry Dock Co., 119 id. 625; Atlee v. Packet Co., 21 Wall, 389. 3 The Moses Taylor, 4 Wall, 411; The Hine v. Trevor, id. 556; The Glide, 167 U. S. 606. 424 Pa. St. 259, or S. C., Taylor v. Carryl, 20 How. 583; Leon v. Gal- ceran, 11 Wall. 185. * Cases supra; also Schoonmaker v. Gilmore, 102 U. S. 114; Steam- boat Co. v. Chase, 16 Wall, 522, 62 L. R. Ex. D. 3. 780 CONSTITUTIONAL LAW. [$ 372. not jurisdiction of the case. The reasoning of Lord Chief Justice Cockburn was not satisfactory upon this point. The decision of Lord Stowell in the Mud Islands Case' clearly held that the marine league on the shore of the Gulf of Mexico extended three miles beyond the Mud Islands, which were eight miles from the coast, and that a capture of the French vessel by a British man-of-war between the Mud Islands and the coast was clearly in neutral territory and void. The Parliament by law claimed the marine league for British territory, and gave criminal jurisdiction to the courts of crimes occurring therein. The doctrine of the marine league has never been doubted in the United States and has been recognized in numerous cases. If a murder occurs within any of the waters of the State, can it be prosecuted in the State court P. In the leading case of United States v. Bevans,” the court, through Chief Justice Marshall, held that the grant of admiralty jurisdiction does not by any means involve a cession of the waters of the State to the United States, and that the admiralty courts cannot try a case of crime committed within the State or its waters. The murder by Bevans was aboard a man-of-war in Boston harbor, and was cognizable in the State court and not in admiralty. The Chief Justice said that, under the war-power, Congress might punish murder on board a man- of-war whenever it enacted a law to do so, but it had not done so, and therefore the State had jurisdiction. No cases can be found to the contrary. In the case of United States v. Coombs" the defendant was punished for stealing from a wreck (property which was washed up on the land), but that was held to fall under the commerce power and not a case for admiralty; and in the late case of Manchester v. Mas- sachusetts” (Buzzards' Bay Case), the decision and opinion of the court confirms these views, and sustains the State against the Federal jurisdiction. 15 Rob. Adm. 73. 8 12 Pet, 722. 23 Wheat, 336, 4 139 U. S. 340, § 372.] JUDICIAL DEPARTMENT. 781 The doctrine in Waring v. Clark, as expounded by Justice Wayne, sustains our admiralty jurisdiction on the ground that the admiralty courts in England, despite the rights of prohibition by the common-law courts, exercised a larger jurisdiction than was defined by the statute of Richard II.; and besides, the colonies and the Congress of Confederation held the more ancient limits of admiralty jurisdiction, and did not confine it within the circumscribed boundaries of those acts of Parliament. But while admiralty attaches its juris- diction in rem for collision according to place, and may be exclusive of the common-law courts, yet it cannot seize a vessel which is in possession of a sheriff under State process. In Taylor v. Carry!” the State courts had seized a vessel under a proceeding by foreign attachment, and a motion was pending for an order of sale. With this condition of things a libel was filed in admiralty for seaman's wages, and the marshal served the process upon the vessel, and the Supreme Court held that the State possession prevailed over the admi- ralty. In the opinion of Mr. Justice Campbell, speaking for the court, Judge Story's Commentaries on the Constitution,” and a number of cases, are cited." Chief Justice Taney, with three other justices, strongly dissented. It has been further held that the saving of the common- law remedy to parties, in the ninth section of the Judiciary Act of 1789, does not take away the admiralty jurisdiction &n rem. It applies to common-law jurisdiction in perso- nam.” This distinction may reconcile the diverse views. The admiralty proceeds against the vessel itself. It is sued in admiralty, and to this extent the admiralty has exclusive jurisdiction; but another court may proceed in personam, against the officers or master, and through this jurisdiction over the person affect the vessel itself, by execution, attach- mont or other lien." 15 How. 441. 5The Moses Taylor, 4 Wall, 556. 220 HOW. 583. , 6The Moses Taylor, supra; The 8 Sec. 1666, and note. Hine v. Trevor, 4 Wall, 556; The 4. Moran v. Sturges, 154 U. S. 256. Glide, 167 U. S. 606, 782 CONSTITUTIONAL LAW. [$ 373. § 373. “To controversies to which the United States shall be a party.” The word “cases,” which had been subse- quently used, is not displaced by the word “controversy.” A distinction has been drawn between the two words: “cases”.include civil and criminal judicial controversies, but “controversies” is applied only to civil cases. Whether this be a true distinction or not may be doubted. The word “all,” before “controversies,” is omitted; perhaps in part because it was not intended. The United States is not suable except with its own con- sent. This is the attribute of sovereignty in a single State, and for like reasons in the United States. Of course, the United States are not suable in a State court; nor can the State court subordinate the authority of the United States to its jurisdiction.” If the United States has purchased prop- erty in a State merely as a proprietor, and not as a means of exercising their constitutional function, such property may be condemned by the State for streets, highways or public purposes, under its eminent domain, as the land of any other proprietor.” But where Congress buys or con- demns property for the purpose of exercising Federal func- tions, the property is not subject to State law for taxation or condemnation as aforesaid.” But while it may not obstruct the Federal functions in respect to such property, unless it has ceded jurisdiction as provided under a former clause of the Constitution,” Congress can exercise no legislative func- tion over such property. It is subject to the general legisla- tive power of the State, except such as will obstruct its use in performing Federal functions." The United States may sue as plaintiff in their own or the State courts, or in the courts of a foreign country." As above 1 Tucker's Blackstone, Appen, Iowa, 144 U. S. 538; Palmer v. Bar- 420–21; Chisholm v. Georgia, 2 Dall, rett, 162 id. 399. 419, 431–32; Story's Commentaries, * Art. I, sec. 8, clause 15. Sec. 1168, note 2. 6 People v. Godfrey, 17 Johns, 225; * Ableman v. Booth, 21 How. 506, 114 U. S. 528, 538, supra. *United States v. Chicago, 7 How. 7 United States v. Wagner, 2 Ch. , 185. App. 582; Cooley on the Constitu- 4 Ft. Leavenworth R. R. Co. v., tion, 133. § 373.] JUDICIAL DEPARTMENT. 783 stated the United States cannot be sued in a United States court or elsewhere but by their consent. So that this clause is limited to cases where the United States is a party plaintiff. A remarkable case may now be referred to where a suit may be brought by a claimant of property held by the officers of the United States for the government. The officer, who is locum, tenens, cannot plead that the United States are sued in his person, where the holding for the United States was without authority of law, and especially where it is uncon- stitutional." This case was followed in a number of cases in respect to the suing of a State, to which reference will be had hereafter; the doctrine being that no officer can assert that he defends the State right or the right of the United States involved in his own defensive holding, where the State or the United States claim to hold by a title which was against law and unconstitutional. Such was the case in Lee v. United States, supra. The purchasers of the property of the plaintiff at a tax sale by an agent for the United States was held to be null and Void because the sale was contrary to the Constitution and to the law. Therefore the United States could acquire no valid title under such a sale, and the officer of the United States could not protect the property from the claim of the true owner by alleging that the United States were the real defendants. They could not be the real defendants because they could not have ac- quired the title, which it was unconstitutional for them to acquire. In that case the United States by their counsel intervened and moved the dismissal of the suit because it was in fact against the United States. The court overruled the motion, gave judgment against the tenant who held for the United States, and the Supreme Court affirmed it. The opin- ion of the court was elaborate and reviews all the cases. Except in this class of cases the United States cannot be sued without their consent, as has already been stated; but in the year 1854 an act was passed creating what is known as the Court of Claims, the jurisdiction of which has been 1 Lee v. United States, 106 U. S. 196. '784. CONSTITUTIONAL LAW. [$ 374. considerably enlarged by an act passed in 1887. In this court the United States may be sued upon a contractual claim which might be asserted either at law or in equity, and very large jurisdiction was given to the court for inquir- ing into claims that are finally submitted to Congress. These statutes need not be critically commented upon. In the last act mentioned, i. e. in 1887, jurisdiction was given also to the circuit courts of the United States in a limited class of cases to allow suit for claims by private parties against the United States. When these courts render judgments in these cases against the United States there is no mode of enforcing them, and the judgment is of no avail until Congress appropriates money to pay it, which is usually done. § 374. The next clause is, “to controversies between two or more States.” It will be noted that it does not say to “all” controversies, and therefore there is a class of which the Federal courts have no jurisdiction. The reason for es- tablishing this jurisdiction is very obvious and is stated in the Federalist with great force." The authority to settle disputes between the States concerning boundaries, jurisdic- tion, or any other cases whatsoever, was vested by the Ar- ticles of Confederation in Congress, but this was a very cumbrous mode of adjudicating them. What better or more appropriate tribunal for adjudicating controversies between the States than the Supreme Court? Colonial disputes had a precedent in the case of Penn v. Lord Baltimore.” Since the Constitution went into operation many cases of contro- versies between the States have been before the Supreme Court, and reference will be made to them.” These cases hold that questions of boundary, territorial right and property rights of all kinds are proper for this jurisdiction; but it has been held in the noted case of Commonwealth of Kentucky 1 NO. LXXX, Alabama v. Georgia, 23id, 505; Vir- *1 Vesey, 444, ginia v. West Virginia, 11 Wall, 39; * Rhode Island v. Massachusetts, Tennessee v. Virginia, 158 U. S. 257; 12 Pet. 757; Missouriv, Iowa, 7 How. Maryland v, West Virginia (now 660; Florida v. Georgia, 17 id, 478; pending). $ 375.] JUDICIAL DEPARTMENT. 785 v. Dennison, upon the refusal of the Governor of Ohio to extradite a criminal upon the demand of the State of Ken- tucky, that at the suit of Kentucky the constitutional duty of the State of Ohio could not be enforced, and that it was a political issue between the States and not one for judicial decision. § 375. The next clause is, “between a State and citizens of another State.” It is obvious that it was well to extend the jurisdiction of the Federal courts to such cases, but the word “all” was omitted so that the State may sue a citizen of another State in the Federal court, or in the court of the State of which the defendant is a citizen. The Federalist” gives a satisfactory exposition of the reasons for this. The court of a citizen defendant might not be an impartial ar- biter between the plaintiff State and its citizen. Impartial- ity and justice would more reasonably be expected from the |Federal tribunals. This clause gave rise to a noted contro- versy. It gave the Federal court jurisdiction of controver- sies between a State and the citizens of another State. That is clear enough where the State is plaintiff; but did the clause mean that the citizen of another State might sue the State in a United States court P. In the Federalist, above referred to, Mr. Hamilton said that this construction had been raised as an objection to the Constitution, and he undertook to controvert it by saying that it was impossible fairly to con- strue the Constitution to mean that a citizen as plaintiff could be party to a controversy with a State, and contended that it was contrary to the principle that a sovereign could not be sued without its consent. Despite this strong statement of the Federalist, in the celebrated case of Chisholm v. Geor- gia,” the Supreme Court decided that Chisholm, a citizen of North Carolina, could sue the State of Georgia upon a money claim in the Supreme Court. The decision was rendered on the 19th of February, 1793, and on the 21st of February, so great was the alarm produced by the decision, an amend- 124 How, 66. 82 T)all, 419. 2 No. LXXX. 50 786 CONSTITUTIONAL LAW. [$ 376. ment was proposed to the Constitution in Congress which would render nugatory that decision. The history of the proceedings which eventuated in the adoption of the elev- enth amendment to the Federal Constitution is given in a number of cases in the Supreme Court." This amendment must therefore be considered with the clause we are now commenting on. It is in these words: “The judicial power of the United States shall not be con- strued to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subject of any foreign State.” As part of the history of this clause the original proposition did not contain the words “be construed to.” Had it been adopted in its original form, it would have been a future limitation to the use of the judicial power. With the insertion of the words “be construed to ” it had retroactive effect by condemning the construction which had been given the orig- inal Constitution by the decision in Chisholm v. Georgia, supra, when the amendment was called to the attention of the Supreme Court.” A number of cases were dismissed from the docket because, by virtue of the amendment, the jurisdiction which had been assumed was taken away. The construction of this amendment has been the subject of a good deal of controversy, to which attention must now be called. § 376. First, a citizen of another State or of a foreign na- tion cannot sue a State in the courts of the United States, by reason of this amendment. Second, as the eleventh amendment did not in terms forbid a citizen to sue his own State, it was contended that he could do so, because the prohibition of the eleventh amendment did 1 Cohens v. Virginia, 6 Wheat. 406; also Haygood v. Southern, 117 T. S. 52; In re Ayres, 123 id. 443; North Carolina v. Temple, 134 id. 130; In re Neagle, 135 id, 1–23; An- toni v. Greenhow, 107 id. 711; Cos- ter v. Greenhow, 114 id, 317; New Hampshire v. Louisiana, 108 id. 76; TJnited States v. Texas, 143 id. 621; and especially the author's state- ment arguendo In re Ayres, 123 U. S. 443; Ex parte Wilson, 114 id. 417. 2PHollingsworthv, Virginia, 3Dall. 378. § 376.] JUDICIAL DEPARTMENT. 787 not reach him. But the fallacy of this contention is obvious from the fact that the original Constitution did not authorize a suit in the United States courts between a State and its own citizen, while it did authorize suits between a State and citi- zens of other States. There is no occasion, therefore, for the eleventh amendment to prohibit a construction of the orig- inal Constitution allowing a suit between the State and its own citizen. So the Supreme Court in two cases has de- cided that a citizen cannot sue his own State in the courts of the United States." Third, this amendment leaves the original Constitution unchanged as to a suit between two or more States, and, as we have already seen, the jurisdiction of the Supreme Court is fully recognized as to controversies in respect to boundaries and the like brought by One State against an- other.” Furthermore, it has been held that under the orig- inal terms of the Constitution, a controversy between the United States and a State is within the jurisdiction of the United States courts. This has been so decided where the United States was plaintiff under the original Constitu- tion, to which the eleventh amendment as to such cases does not apply.” It has not yet been decided whether in such a controversy the State may be a plaintiff. An Indian tribe cannot sue a State, because the tribe is not a State.” Nor can the District of Columbia or a Territory sue a State, be- cause neither of these is a State; and so also it is a Well- settled doctrine that a resident of a Territory or of the Dis- trict is not a citizen of the State who can sue the citizen of one of the States in the United States court.” The form of process against a State when sued has been adjudicated in the cases already referred to, but especially in The State of Wew Jersey v. The State of Wew York." 1 Ham v. Louisiana, 134 U. S. 1; 136 U. S. 211; United States v. North Carolina v. Temple, id. 22. Texas, 143 id. 21. 2 Florida v. Georgia, 17 How. 478; 4The Cherokee Nation v. Georgia, Virginia v. West Virginia, 11 Wall, 5 Pet. 1. 39, and other cases cited Supra. 5 Hepburn v. Ellzey, 2 Cr. 445; 8 United States v. North Carolina, Scott v. Jones, 5 How. 343, 377. 65 Pet, 284, 788 CONSTITUTIONAL LAW. - [$ 376. Fourth, a State may, by the Original Constitution, sue a citizen of another State, and citizens and subjects of foreign States, in the United States courts. Fifth, a bank or other corporation, wherein a State is one of the corporators, or is sole corporator, may, however, be sued by a citizen of another State. The State doffs its sov- ereignty when it becomes a stockholder, and the corporation is a being distinct from its corporators. The suit in such cases is therefore not against the State, but against the cor- poration and legal entity distinct from its corporators." The opinion of Mr. Justice Curtis in Curran v. Bank of Arkansas.” expounds this fully. Sixth, but where a State prosecutes a citizen for a crime Once, and convicts him, the citizen may appeal from the highest State court to the Supreme Court of the United States under the twenty-fifth section of the Judiciary Act already mentioned. It was contended in the case of Cohens v. Virginia” that this appeal by the convict was a suit against the State, but Chief Justice Marshall, in that famous case, made the distinction that, while the citizen could not assert a claim against the State and get judgment for it, he might on appeal get a judgment reversed which the State had un- constitutionally obtained against him. The appeal simply brought the case of the State against him for review in the appellate court, but in that case it was held that the appeal to the Supreme Court only lay after the highest appellate court in the State had decided against the right of the citizen. It is worthy of note, however, that while the court in that case decided it had jurisdiction to reverse, yet upon the merits it decided to affirm. The same doctrine will hold where the State in a civil suit obtains a judgment against a citizen con- trary to his claim of right under the Constitution, laws or treaties of the United States, and this by virtue of the twenty- fifth section of the Judiciary Act. 1 Briscoe v. Bank of Ky., 11 Pet, 215 HOW. 301. 692; Curran v. Arkansas, 15 How. 36 Wheat. 864. 304; Bushnell v. Kennedy, 9 Wall. 387. § 37 6.] JUDICIAL DEPARTMENT, 789 Seventh. We come now to an important question. Can the eleventh amendment be evaded in its operation by suing the officers, boards or other functionaries of the State, and not suing the State by them? This question has been the subject of great and learned controversy. In the case of Osborne v. Bank of United States' the court said that the eleventh amendment did not apply unless the State was made a party defendant on the record; but in a later case, to which reference will be made, that doctrine has been clearly overruled.” In Douisiana v. Jumel, supra, a board of the State of Louisiana held some funds which, by prior obligations of the State, the board was to hold in trust for their payment. The State legislature afterwards enacted that the board should not pay out any of those funds for these special creditors. The creditors thereupon sued the board to compel the payment of their obligations out of that fund, but the court held that the board was really the State — the authority through which the State held these funds for creditors, and that to make the board pay the creditors with these funds was equivalent to making the State do so. Therefore the Supreme Court held that it was still a suit against the State; that the State was not a party on the record; and gave judgment for the State. The same doctrine was affirmed in the later cases above cited. In the leading case of In re Ayres” the State of Virginia had directed its Attorney-General to sue delinquent tax-payers where they had tendered tax-receivable coupons in payment of their taxes, which the Supreme Court decided, in Antonio v. Greenhow * and Poindearter v. Greenhow,” that the State was bound to receive. The collecting officers of the State had been forbidden by the law of Virginia to receive these coupons in payment of taxes, and the Attorney-General of 19 Wheat, 738, 3 123 U. S. 443. 2Louisiana v. Jumel, 107 U. S. 4107 U. S. 769. 711; Cunningham v. Railroad Co., 5114 U. S. 270, 109 id. 446; Hagood v. Southern, 117 id, 52. 790 CONSTITUTIONAL LAW. [$ 376. the State was directed to sue any such tax-payer, in which suit the tax-payer was allowed to plead the tender as the discharge of his obligation. One of the large creditors of the State of Virginia filed a bill stating that the coupons upon the bonds of the State were made unsalable by this legis- lation of the State, and praying an injunction against the Attorney-General and other attorneys for the Common- wealth forbidding them to bring the suits which the law of the Commonwealth had ordered. The Attorney-General and others proceeded to sue despite the injunction order. The judge of the United States court thereupon, upon proper process against them for contempt, fined and imprisoned them. They brought a writ of habeas corpus, issued from the Supreme Court, for their release from custody, upon the ground that these proceedings were virtually an injunction against the State forbidding its suing for its taxes, and this despite the fact that the State was not made a party on the record. The Supreme Court held, in a learned opinion of Mr. Justice Matthews, that the State had a constitutional right to sue; and as it could sue only by its officers, an in- junction against the officers was an injunction against the State, and that virtually the whole proceeding was a suit against the State of Virginia. The officers were released under the habeas corpus. This latter case was followed by that of McGahey v. Virginia' and Pennoyer v. McConnaughy.” In the last case Mr. Justice Lamar quoted from the decision of Mr. Justice Bradley in McGahey v. Virginia, in which there was a summary of the propositions established by pre- vious decisions, the third of which propositions is in these words: “That no proceedings can be instituted by any holder of said bonds or coupons against the Commonwealth of Virginia, either directly by suit against the Common- wealth by name, or indirectly against her executive officers, to control them in the exercise of their official functions as agents of the State.” On the other hand, it has been dis- tinctly held that where the State by its officer seizes the 1135 U. S. 562. 2140 U. S. 1, § 376.] JUDICIAL DEPARTMENT. '791 property of a citizen contrary to his right claimed under the Constitution, such citizen may sue the officer in trespass or other action, and the officer cannot plead, in justification of his action, that it was authorized by law and therefore is virtually the action of the State, because the State cannot authorize an act which by the Constitution it is forbidden to do, and that such citizen may sue such officer to recover his property, or damages for taking it, or by injunction to prevent the taking of it, and such suit will not be contrary to the eleventh amendment, because the officer cannot make his act the act of the State when the State, by the Constitu- tion, is forbidden to do the act. The cases on this subject, besides those already cited, will be referred to in a note." The decisions cited in the note hold that no suit against a State or its officers is allowed by the eleventh amendment to compel any affirmative action against the State or its offi- cers. The State cannot be so enforced; but where the State through its officers is taking affirmative action against a citizen, contrary to his constitutional right, he may either prevent it by injunction or redress it by an action against the Officer, and, because the officer is without constitutional authority from the State to do the act, judgment will be allowed against the officer. It will be noted that this is substantially the same principle upon which the decision in Lee v. United States,” heretofore referred to, rested. In both cases the officer of the State was the State, as far as any suit against him was concerned, where he performs the du- ties which the State has constitutional power to impose upon him; but where the State has no such authority to im- pose the duty, his act is defenseless under the shield of the State, and he is liable for it as an individual. 1 Coupon Cases, 114 U.S. 269; Cun- ningham v. Railroad Co., 109 id. 453; Hagood v. Southern, 117 id. 52–70; Davis v. Gray, 16 Wall. 203; Tom- linson v. Branch, 15 id. 460; Litch- field v. Webster Co., 101 U. S. 773; Board of Liquidation v. McComb, 92 id. 531. All of these decisions are fully reviewed by Justice Brad- ley and Justice Lamar in the cases $3 referred to. McGahey v. Virginia, 135 U. S. 662; Pennoyer v. McCon- naughy, 140 id. 1; Fitts et al. v. Mc- Ghee et al., 172 id. 516. 2 106 U. S. 196. 792 cowsTITUTIONAL LAW. [$ 377. Eighth. A creditor of a State, as we have seen, cannot sue the State for the debt under the eleventh amendment. Can he assignit to his own State with power to do so for him, and thus give jurisdiction to the Supreme Court, because it is a controversy between two States? This was attempted in recent cases. The court will look to the real parties to the suit, and in the cases of Wew Hampshire v. Louisiana, and Wew York v. Louisiana the court found that the suits. were brought by the plaintiff States for and in behalf of its citizens, and the jurisdiction was denied as being in effect contrary to the eleventh amendment, because by a suit of the citizen against a State. Ninth. Can a foreign State sue a State of this Union in the United States court? A foreign State may sue in the Supreme Court.” It may sue citizens and corporations of the United States. Can it sue a State? This has never been decided, but from the terms of the original Constitution it gives jurisdiction to controversies between a State and for- eign States, citizens or subjects against a State; and as the eleventh amendment forbids a suit by foreign citizens against a State, but does not forbid a suit by a foreign State against a State, it would seem that the original Constitution stands unaffected by the eleventh amendment as to a controversy between a State of the Union and a foreign State, whichever may be plaintiff or defendant. But it has been decided that the United States may only be sued, as by its law it is per- mitted, in the Court of Claims. § 377. In controversies between a State and citizens of another State, or between citizens of different States, etc., the question arises, Who is a citizen of a State within the meaning of these clauses of the Constitution? A citizen may be a citizen of a State, as to jurisdiction, when he re- sides in that State.” A resident of a Territory or of the District of Columbia is not a citizen of a State and cannot sue or be sued in the United States court." He must Sue in 1 108 U. S. 76. 3 Gassies v. Ballou, 6 Pet. 761; 2 The Sapphire, 11 Wall, 164, Shelton v. Tiffin, 6 How. 163. 4 Hepburn v. Ellzey, 2 Cr. 445–48. * > Ö © & - gº :* > . * * : *** : : * * • * * © 6 * @ k & * * * § 377.] JUDIOIAL DEPARTMENT. '793 a State court, or be sued in the court of the Territory or in the court of the District of Columbia. An alien, though he has declared his intention to become a citizen, may sue as such in the United States court." A much-controverted question here arises: Is a corporation created by a State a citizen within the meaning of these jurisdictional clauses. It is very obvious that a corporation is not a citizen in the true primal sense of that term. It is a metaphysical entity, a creature of the law, distinct from the personality of all its corporators. A citizen, in the true sense of the term, is a human being, with personal rights and capable of personal privileges and immunities; but it was held in an early case that the reason of the jurisdictional clause of the Constitu- tion applied to the cases of the corporations of different States. The reason that jurisdiction was given between citi- zens of different States to the United States courts was the apprehension that the State courts, in such controversies, might not be as impartial as a court of the United States. The State court depends for its authority upon the State cre- ating it; its environments consist of the nature, feeling and sympathies of the people of the State. A United States court is created by the Constitution of the Union, and in its independence of State authority and separation from State influence would be a better tribunal for the trial of questions in which the rights of the stranger were involved. This rea- son for the jurisdiction where the parties were citizens is stronger where one of the parties is a corporation; if the stranger citizen might be prejudiced in a State court, a for- tiori might a stranger corporation be. Then again it was easy to see that the corporation, which was a being of the law and not a personality, yet represented persons who would likely be citizens of the State which created it. While there- fore in form it was a corporation, a legal entity, and not a person representing persons who were citizens of the States which created it, the reason of the rule led to the early de- cisions that a corporation of a State was to be regarded, for 1 Story on the Constitution, Sec. 1700. '794 CONSTITUTIONAL LAW. [$ 377. jurisdictional purposes, as if it were the body of the corpo- rators who were citizens of the same State. This view was strongly stated by Chief Justice Marshall in the case of Bank of the United States v. Deveaua, in which, referring to the case of Mayor, etc. v. Wood,” the judges declared they could look beyond the corporation name and notice the individual. It was decided that on a question of jurisdiction in a suit by the corporation, they could look to the character of the persons composing it. This leading case was followed by others, in which it was held that the court would presume that the corporators were all citizens of the State which cre- ated the corporation, and in a later case it was held that this presumption was one which the court would not permit to be rebutted. The cases are referred to in a note.” In Mul- ler v. Dows “the court said that a corporation was in fact not a citizen at all, but, as representing those who were, the juris- dictional question was within the reason of the provision of the Constitution. The conclusiveness of the presumption was first declared in Railroad Co. v. Letson.” This was fol- lowed in Rundle v. Canal Co." and Worthern Ind. R. R. Co. v. Michigan Central R. R. Co." Though this view was opposed in the court and there was strong and persistent dissent, it may now be regarded as settled in favor of the jurisdiction, which presumes a corporation to be a citizen of the State which created it, despite the fact that all of its corporators may not be. It may be added that, where the corporation is a municipal corporation, this principle is properly conclu- sive, because all its inhabitants are citizens of the State of which the municipality was a part, and so as to eleemosynary corporations. are r * * 1 5 Cr, 61. Pacific R. R. Co. v. Atchison, T. & 2 12 Mod. 669. S. F. R. R. Co., 112 id. 414, See also 3 Marshall v. B. & O. R. R. Co., 16 Railway v. Arnaud, 16 L. J. (N.S.) How. 316; Ohio & Miss. R. R. v. C. L. 50. Wheeler, 1 Black, 286; Railroad Co. 494 U. S. 44. v. Whitton, 13 Wall. 270; Louisville 52 HOW. 497. R. R. v. Letson, 2 How. 497; Robert- 614 HOW, 30. son v. Cease, 97 U. S. 646; Kansas 7 15 How. 233. § 377.] JUDICIAL DEPARTMENT, 795 We are justified in saying that while as an original ques- tion the rule treating a corporation as a citizen of the State which created it, as the result of the conclusive presump- tion above referred to, seems to stretch the meaning of the Constitution beyond its legitimate meaning according to its letter, yet, as it accords with the spirit of the Constitution, the rule may be regarded as not an injurious construction of the jurisdictional power of the United States court, and therefore as one that may be readily acquiesced in. | There is involved in the question just considered this ad- ditional rule: Under this clause jurisdiction over controver- sies between a State and citizens of another State was given. The force of the preposition “between" has been held to require that all the plaintiffs must be citizens of different States from all the defendants, and that if any plaintiff be a citizen of the same State with any defendant it is not a suit between citizens of different States, but quoad these parties between citizens of the same State. Hence the necessity of the conclusive presumption made in the cases of corporations as to the citizenship of their corporators. As we shall see more distinctly hereafter, the Supreme Court has held that the jurisdiction of the United States courts is a limited one, and that therefore, in every case, it must appear on the rec- ord itself that the Federal jurisdiction attaches. Hence it is a rule of practice in the Federal courts for the proceed- ings of the plaintiff to show that all of the plaintiffs are citizens of different States from all the defendants, and if this does not appear the declaration or bill is demurrable; and even where not demurred to, the court will look into the proceedings, even in an appellate court, and refuse to give judgment or decree where the record does not show the jurisdiction. In other words, they hold that, without this jurisdiction appearing on the record, the suit is coram non judice." 1 Ohio & Miss. R. R. v. Wheeler, 1 U. S. 649; Cameron v. Hodges, 127 Black, 286; Robertson v. Cease, 97 id. 322. 796 CONSTITUTIONAL LAW. [$ 378. § 378. In the case of Scott v. Sanford" it was decided that a negro, no matter where he resided, was not a citizen of the United States, capable of suing in a United States court; but now, by the fourteenth amendment to the Consti- tution, members of the negro race are citizens of the United States and of the State wherein they reside. So that citi- zenship being established, the question of the residence of the party is the main question,” and it must be the status of the party at the commencement of the suit.” But as Congress has the right to establish and ordain the inferior courts, it has also the power to define their jurisdiction, so that the act of Congress provides that no assignee of a chose in action, whatever his citizenship, can sue in a United States court, unless suit could have been brought in that court had no assignment been made.” Though the Constitution has de- fined the limits of the judicial power, it has not prescribed, but has left to Congress to prescribe, the amount of the jurisdiction which shall be vested in the courts.” As already said, the citizenship, to get jurisdiction of the parties plaintiff and defendant, must be expressly averred, or the facts which constitute it must be set forth." This will suffice upon all of the clauses which relate to the par- ties being citizens of different States; and as to what is a State, as a party, within the meaning of the Constitution, it means a State of the Union. One of these clauses is pecul- iar and requires a word of explanation. The Federal juris- diction extends to cases between citizens of the same State claiming lands under grants of different States. The de- cision of such cases, where the power of different States to convey title was involved, is for reasons already stated proper to be left to the jurisdiction of a court having no connection with either State, but established under the Con- 119 HOW, 393. 5 Turner v. Bank, 4 Wall, 10; Mc- 2 Curtis' Commentaries, sec. 73. Intyre v. Wood, 7 Cr. 506; Kendall 3 Connelly v. Taylor, 2 Pet. 556; v. United States, 12 Pet. 616; Cary Gassies v. Ballou, 6 id. 761; Shelton v. Peters, 3 How. 245. v. Tiffin, 6 How. 163. 6 Cases Supra. 4 Sheldon v. Sill, 8 How. 441. § 379.] JUDICIAL DEPARTMENT. 797 stitution of the United States. Cases of this kind have oc- curred and are within this jurisdiction, wherever the parties claim under grants made by the different States." The last clause to be noticed gives jurisdiction “to contro- versies between a State, or the citizens thereof, and foreign States, citizens, or subjects.” The eleventh amendment, as we have seen, excludes from the operation of this clause all suits at law or in equity commenced or prosecuted against one of the United States by citizens of another State, or sub- jects of any foreign State. So that while as against a State as defendant no suit can be brought by a citizen of another State, or citizens or subjects of any foreign State, the orig- inal clause remains unchanged as to a suit brought against a State by a foreign State. As to this it would seem that the foreign State may sue a State of the Union in the United States court. In any suit brought, however, by a foreign citizen or subject against citizens of any State, the alien has the right to sue, whether he sue in his own capacity or as trustee, if he have a substantive interest as trustee;” and if the nominal plaintiff, although a citizen, sue for the use of a citizen, the case is within the jurisdiction.* A foreign cor- poration is an alien for the purposes of suit.” The opposite party must be a citizen, and the alienage of the plaintiff and citizenship of the defendant must appear from the record." A mere declaration of intent to become a citizen, as it does not make him a citizen, leaves him in the condition of alien- age, and he may sue under this clause a citizen of a State." § 379. The next clause has already been referred to, but further comment is necessary. While this clause gives the 1 Town of Pawlet V. Clark, 9 Cr. Wheat. 464; Commercial & Vicks- 292; Colson v. Lewis, 2 Wheat. 277, burg Bank v. Slocomb, 14 Pet, 60. 2 Chappedelaine v. De Chenaux, 6 Jackson v. Twentyman, 2 Pet. 4 Cr. 306; Browne v. Strode, 5 id. 136. 303, 7 Beard v. Federy, 3 Wall. 478 ; 8 Chappedelaine v. De Chenaux, Jones v. McMasters, 20 How, 8; Supra. Lanfear v. Hensley, 4 Wall, 209; 4 Browne v. Strode, supra. Semple v. Hagar, id. 486. 5 Society, etc. v. New Haven, 8 798 CONSTITUTIONAL LA W. [$ 379. Supreme Court Original jurisdiction in cases of ambassa- dors, and those to which a State is a party, the question has arisen: Is; this original jurisdiction which is conferred on the Supreme Court exclusive, or may it be conferred on the inferior courts which Congress may establish 2 Some diversity of decisions has occurred upon this question. In United States v. Ravara' the jurisdiction of the inferior court was sustained. The contrary has been intimated by the Supreme Court in several cases,” but the late decisions already referred to of Boss v. Preston" and Ames v. Kansas,” and the cases cited therein, settled this question against the exclusiveness of the admiralty jurisdiction. It is clear that Congress can confer on the Supreme Court no other original jurisdiction than the Constitution has vested in it,” but it may confer upon inferior courts a concurrent jurisdiction with the Supreme Court as to the cases in which it has orig- inal jurisdiction, and then confer on the Supreme Court the appellate jurisdiction from the judgment of the inferior courts in such cases. But it must be observed that such ap- pellate jurisdiction in those cases does not arise from the nature of the parties, but from the nature of the case—from the subject-matter of litigation. The clause then provides: “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” This appellate jurisdiction of the Supreme Court then embraces all other subjects of jurisdiction set forth in the first clause of this second section, except those in which, as already seen, it has original jurisdiction. An interesting question, already referred to, may now be considered further. Does the appellate jurisdiction of the Supreme Court reach to judgments of the State courts as well 12 Dall, 297; Story on the Consti- Martin v. Hunter, 1 Wheat. 337; Os- tution, 1699, and Kent's Com., lec- borne v. Bank, 9 id. 420. ture 15. 3 111 U. S. 252. *Marbury v. Madison, 1 Cr. 137; 4 111 U. S. 449. 6 Marbury v. Madison, 1 Cr. 137, § 379.] JUDICIAL DEPARTMENT. 799 as to those of the inferior United States courts? The reason- ing of the Supreme Court in the leading cases of Martin v. Hunter, supra, and in Cohens v. Virginia, is very strong to show that, unless the appellate jurisdiction extended to the judgments of the State courts, it would become necessary, where the State court had jurisdiction of a case within the judicial powers given by the Constitution to the United States courts, to remove the cases at Once from the State courts into the United States courts for trial. In the lan- guage of the court in the case of Martin v. Hunter,” supra, this would be the case “not only when the casus foederis should arise directly, but when it should arise incidentally, in cases pending in State courts.” It is obvious that such a construction would necessitate a great abridgment of State jurisdiction in the primary stages of the litigation, and a need for a constant removal from the State to the Federal courts, even in the midst of a trial, when the Federal ques- tion first emerged. Congress, therefore, has the discretion to prescribe the jurisdiction of the inferior Federal courts, and it was thought best to leave a large concurrent jurisdic- tion to the State and Federal courts in many cases, and to bring to final review by the Supreme Court the judgments of the State courts in cases within the legitimate jurisdiction of the Federal judiciary. It has been already stated” that this appellate jurisdiction from the judgments of State courts was vigorously contested in the case of Hunter v. Martin,” but for eighty years the contest has ceased, and the appel- late jurisdiction of the Supreme Court to the judgments of State courts has been acquiesced in universally; and it is best that it should be so, rather than to make necessary the exer- cise of the power, which unquestionably existed, to remove the case from the State court to the inferior Federal court, in order that an appeal from the judgment of the Federal court to the Supreme Court might insure a final decision by the 16 Wheat. 264. 3 Amte, § 367. 21 Wheat. 339. 44 Munford, 1 (Va.). 300 CONSTITUTIONAL LAW. [$ 380. latter upon all questions of Federal jurisdiction. In some way it is obvious that this final resort to the Supreme Court on all questions of Federal jurisdiction should be secured in order to a uniformity of operation of the laws of the United States and treaties made under their authority in all of the States of the Union. Under the terms of this important section, Congress may establish courts inferior to the Supreme Court and give ex- clusive jurisdiction to these courts in some of the cases of Federal jurisdiction therein mentioned; e.g., if it would be proper, give this exclusive jurisdiction in all cases to which the United States is a party, and in cases of prize, in some of which the Constitution itself requires that the jurisdiction should be exclusive." So it has been said by the Supreme Court in the case of United States v. Bevans,” that Congress might give the Federal courts jurisdiction of crimes com- mitted on a public man-of-war of the United States. § 380. Another question has arisen: Can Congress vest in the State courts any part of the judicial power of the United States? This has been intimated by the Federalist.” In Martin v. Hunter, supra, it was denied,” and this would seem to be the better opinion. It is true, the State courts having had jurisdiction, prior to the adoption of the Consti- tution, of a large number of cases which are within the Fed- eral jurisdiction under the Constitution, may still continue to exercise that jurisdiction; but that is very different from the Congress having power to vest in the State courts any part of the jurisdiction which the Constitution has wested in the Federal judiciary. It is true that the State courts may enforce, by judicial action, rights secured to a party under the Constitution and laws of the United States. According to this, it has been held that a State court may administer 1 Martin v. Hunter, supra; Cohens Houston v. Moore, 5 Wheat. 25, 69. V. Virginia, supra; Story's Commen- See also Federalist, No. LXXXII. taries, Sec. 1748; 1 Kent, lecture 18; 23 Wheat. 336, 1 Tucker's Blackstone, Appen., 181, 3 Federalist, Nos. XLV, LXXXI. 183; Georgia v. Madrazo, 1 Pet, 128; 4 Houston v. Moore, 5 Wheat. 68. § 380.] JUDICIAL DEPARTMENT. 801 the naturalization laws as well as the Federal courts," and this has been done in other cases.” Can either State or Fed- eral court interfere with the other in the exercise of their respective jurisdiction? It has been held with great consist- ency that these two systems of courts are independent and complete within their respective spheres, and that neither can intrude upon the action of the other. By an act of Con- gress in 1793, the United States courts are forbidden to en- join proceedings in the State courts.” On the other hand, the State court and State cannot inter- fere with the proceedings and judgments of the United States courts.” The cases here with cited are, however, cases where the State and Federal courts have concurrent jurisdiction; but where the State court is proceeding in a matter as to which a Federal court has exclusive or paramount jurisdic- tion, it is otherwise. Thus, in an admiralty proceeding, a monition may issue to a party proceeding in a State court to present his claim in the admiralty court in order to a com- plete remedy, in rem, between all the parties.” And where a valid order of removal of a case from a State court to a Federal court is made, and the State court still proceeds, it has been said that an injunction will issue from the Federal court to the State court;" but the better rule has been estab- lished that the vindication of the rightful jurisdiction of the Federal court, under the order of removal, will be left to an appeal from both courts to the Supreme Court, where the judgment of a State court, if the order of removal is valid, 1 Rumpf v. Commonwealth, 6 Casey, 475. 2 Claflin v. Houseman, 93 U. S. 136; United States v. Jones, 109 id. 513; Ex parte McNeil, 13 Wall. 236; Illinois v. Delafield, 8 Paige, 527; Delafield v. Illinois, 2 Hill, 159; Teal v. Felton, 12 How. 292. 3 Ex parte Dorr, 3 How. 103; Tay- lor v. Carryl, 20 id. 596; Leroux V. Hudson, 109 U. S. 469; Haines v. Carpenter, 91 id. 254; Dial v. Rey- nolds, 96 id. 340; Watson v. Jones, 13 Wall, 679; Peck v. Jenness, 7 HOW. 612. 4 McKim v. Voorhies, 7 Cr. 279; United States v. Peters, 5 id. 115; United States v. Wilson, 8 Wheat. 253; Wayman v. Southard, 10 id. 21; Bank of United States v. Eſal- stead, 10 id. 51. 5 Steamship Co. v. Manufacturing Co., 109 U. S. 578. 6 French v. Hay, 22 Wall, 250. 51 802 CONSTITUTIONAL LAW. [$ 381. will be wholly reversed, and the judgment of the Federal court in such cases will be affirmed; or where the order of removal is invalid the Supreme Court will reverse its action." So, the United States courts, sitting in bankruptcy, may enjoin a State court from impairing the right of the assignee in bankruptcy or distributing the assets of the bankrupt by its Order.” But in such a case as this it will not interfere with the rightful jurisdiction of the State court as to liens upon the bankrupt's estate prior to the bankrupt proceed- ings.” In cases, therefore, of concurrent and co-ordinate juris- diction, the court first having possession must be allowed to proceed without interference by its concurrent rival.” § 381. Some other points may be considered. When the Dnited States courts take jurisdiction of a case on account of the character of the parties thereto, they administer the laws of the State as the State courts would do; they recog- nize the common law and the statute law of the State and the decisions of the State courts, on its Own Constitution and laws, on questions as to land or other property. As to these they hold the State courts to be the final arbiters for the in- terpretation of its laws in their application to controversies, property contracts and torts; for the Federal courts have not jurisdiction of such cases on account of subject-matter, but only incidentally on account of subject-matter, because of the character of the parties. It would destroy the uniformity of the operation of State laws if Federal courts departed from the precedence of State courts in their own decisions.” If the State decisions are at variance, the United States court will follow the last-settled adjudication of the highest State 1 Railroad Co. v. Whitton, 13 Wall, road v. Railroad Co., 20 Wall. 137; 270; Removal Cases, 100 U. S. 457. Townsend v. Todd, 91 U. S. 452; 2 Ex parte Christy, 3 How. 292. Elmwood v. Marcy, 92 id. 259; Rail- 3 Peck v. Jenness, 7 How. 612. road Co. v. Georgia, 98 id. 359; 4Riggs v. Johnson Co., 6 Wall, Walker v. Harbor Commissioners, 166; French v. Hay, 22 id, 250; 17 Wall. 648; Shelby v. Guy, 11 Akerly v. Vilas, 15 Wis, 401. Wheat. 361; Bucher v. Cheshire R. *Wheaton v. Peters, 8 Pet. 591; R. Co., 125 U. S. 555. 1.ivingston v. Moss, 7 id, 469; Rail- § 381.] JUDICIAL DEPARTMENT. 803 court; and this is in accordance with the provision of the statute of the United States,” which in terms provides: “The laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decisions in trials at common law in the courts of the United States in cases where they apply.” But this rule and this statute will not apply where the State decision is on a question of which, by the Constitution of the United States, the Federal judiciary has the final decision.” Nor will it apply to questions not regulated by statute, but of general law, such as the law of negotiable paper, insurance, and the like. These questions depend on principles of general law, and not on local stat- utes." Nor does it apply where the State statute is in the mat- ter of a contract and the State law undertakes to impair its validity. Such a case, as we shall see, is a case arising under the Constitution of the United States, which forbids a State to impair the obligation of a contract." In Bucher v. Cheshire R. R. Co., supra, the court said that the statute of the United States applied to trials at common law, but that the rule did not apply to cases in admiralty or in equity, nor to crim- inal offenses against the United States; but the decision of its highest court, as to the Constitution and statutes of a State, was regarded as part of the Constitution and stat- ute of the State and binding upon the courts of the United States." In the case of Burgess v. Seligman" the whole sub- 1 Green v. Neal, 6 Pet. 291; Suy- dam v. Williamson, 24 How, 427; Fairfield v. Gallatin, 100 U. S. 47. 2 R. S., sec. 721. 3 State Bank v. Knoop, 16 How. 369; Jefferson Branch Bank V. Skelly, 1 Black, 436. 4 Chicago v. Robbins, 2 Black, 418; Boyce v. Tabb, 18 Wall. 546; Venice v. Murdock, 92 U. S. 494, 5 Gelpcke v. Dubuque, 1 Wall. 175; Olcott v. Supervisors, 16 id, 678; Kring v. Missouri, 107 U. S. 221; Virginia Coupon Cases, 114 id. 269; McGahey v. Virginia, 135 id. 662. 6 Leffingwell v. Warren, 2 Black, 599; Luther v. Borden, 7 How. 1; Post v. Supervisors, 105 U. S. 667. And that it also applies to rules of evidence, see Ex parte Fisk, 113 U. S. 713. 7 107 U. S. 20. 804. CONSTITUTIONAL LAW. [$ 382. ject has been ably reviewed, and in the case of Railroad Co. v. Putnam, it was held that the power of a court of the United States in charging a jury was not restrained by the State statute forbidding judges to express an opinion on the facts, citing Wudd v. Burrows;" and in Peters v. Bain.” the Supreme Court accepted the construction given to a Vir- ginia statute by the highest court of that State as controlling its decision. In that case the decision of Waite, C. J., in the circuit court of the United States, and the opinion of Chief Justice Fuller fully sustain the propositions stated. In all these cases the Federal courts differ from the decisions of the State courts as to subjects clearly within State jurisdiction, and e contra State courts differ from those of the United States as to those in the Federal jurisdiction. This is ac- cording to well-recognized rules of judicial comity. § 382. Can a State court take jurisdiction of a case for en- forcing a right arising under the Constitution of the United States or a law of the United States? The English courts enforce in the domestic forum a right arising under foreign law.” The forum of trial will regard the foreign law in its decision of the case.* The Constitution and the laws of the United States are the laws of each State; hence, unless the Constitution of the United States or a law of Congress ex- cludes the jurisdiction of a State court, in a case of a right arising under the Constitution or law of the United States, the State court, as it had jurisdiction before, can still exercise it.” There is another form of the same question: Cana State court take jurisdiction of a case arising under local law, when the defense justified under the Constitution or law of the United States; e. g.: Can a citizen sue a Federal officer for trespass when he justifies under the Constitution or law of Congress? 191 U. S. 426. Bank v. Bank, 92 id. 29; Ex parte 2 133 U. S. 670. McNeil, 13 Wall. 236; The Moses * Mostyn v. Fabrigas, Cowper, 161. Taylor, 4 id. 429; Eyster v. Gaff, 91 * Buron v. Denman, 6 Exch. 166. U. S. 591; Boss v. Preston, 111 id. * Federalist, No. LXXXII; Claflin 282; Ames v. Kansas, Id, 449; v. Houseman, 93 U. S. 136; F. & M. United States v. Jones, 109 id. 513. § 382.] JUDICIAL DEPARTMENT. 805 There is no good reason against this jurisdiction of a State court, unless the Constitution or law of the United States gives exclusive jurisdiction to the United States court. It is true, as we have seen, that this exclusive jurisdiction may be given to the United States court by a removal of the case from the State to the United States court, but unless so removed the State court will have jurisdiction. This principle applies to the case of a suit against a military offi- cer of the United States who justifies under the articles of war;” but where the United States officer holds property under process from the United States court, suit cannot be brought against the officer in the State court, for its judg- ment, if against the officer, would virtually oust the Federal court of the custody of the property through its officer.” And this principle of non-interference by comity is extended by the United States court to a State court in case a similar controversy arise.” In both classes of cases the rule is that the court which first obtained jurisdiction by service of pro- cess will not be interfered with by the other by injunction, habeas corpus, or other interference with its jurisdiction. The exercise of its jurisdiction thus first obtained will be free from interference until final judgment or execution.” All cases, however, where the cause of action or the de- fense to an action was based on the Constitution of the United States, or a law of Congress or treaties made under the au- thority of the United States, will be subject to an appeal from the final judgment of the highest State court to the Supreme Court of the United States. From what has been already said, it will be apparent, therefore, that the power vested in the Supreme Court of the United States to take cog- 1 Slocum v. Maybury, 3 Wheat. 1; Gelston v. Hoyt, 3 id. 247; Teal v. Telton, 12 How. 284; Buck v. Col- bath, 13 Wall, 384; Hagan v. Lucas, 10, Pet. 400; Peck v. Jenness, 7 How. 624; Day v. Gallup, 2 Wall.97. 2 Wise v. Withers, 3 Cr. 337; Wilkes v. Dinsman, 7 How. 89; S.C., 12 id. 404; Dynes v. Hoover, 20 id. 65. 8 Home v. Freeman, 20 How. 583; Buck v. Colbath, supra; Ames v. Ransas, 111 U. S. 449. 4 Diggs v. Wolcott, 4 Cr. 179; Peck v. Jenness, 7 How. 624. 5 Rio Grande R. R. Co. v. Gomila, 132 U. S. 478. 306 CONSTITUTIONAL LAW, [$ 383. t nizance of appeals from the decision of the Supreme Court of a State, upon questions arising under the Constitution, laws or treaties of the United States, will amply protect these from violation by the decisions of State courts and give uniformity to the decisions in all the States in respect to them under the final judgment of the Supreme Court of the United States. § 383. This appellate power, given to the Supreme Court, from the decisions of the inferior courts of the United States, as well as from the decision of the highest appellate court of a State, covers the whole range of subjects which by the second section of this article are embraced within the judi- cial power of the United States. In the second clause and Second section, after stating the cases already referred to in which the Supreme Court shall have original jurisdiction, the clause gives appellate jurisdiction to the Supreme Court, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. The language, “both as to law and fact,” gave rise to apprehensions when the Constitution was under consideration by the people of the different States, to which the Federalist" refers, and in which Mr. Hamilton expressed the opinion that it would not give the power to the Supreme Court to re-examine facts decided by the juries in the inferior courts; but he insisted that it applied only to those cases, as in equity and in admiralty, where jury trials did not exist, and where the facts decided by the court would be embodied in the record which came to the appellate tribunal. The question, however, was not left to this reasonable view of the distinguished writer, but was made the subject of the seventh article of amendment proposed in the first Congress under the Constitution, and subsequently ratified by the States. That article reads as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United 1 No. LXXXI. § 383.] JUDICIAL DEPARTMENT. 807 States, than according to the rules of the common law.” This important amendment preserved the integrity of jury trial, so as to avoid the criticism which had been made upon the original Constitution, and excluded the re-examination by the Supreme Court of any fact, tried by a jury, otherwise than according to the rules of the common law. Those rules allow a motion for a new trial to the court itself, and would necessarily involve a re-examination by the appellate tribu- nal of the judgment of the court upon that motion, either in granting or refusing a new trial by jury. The third clause of this second section reads thus: “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not com- mitted within any State, the trial shall be at such place or places as the Congress may by law have directed.” This trial by jury, in all criminal cases except impeachment, is but a re-enactment of the thirty-ninth article of King John's Magna Carta, in the year 1215. The eulogium of Blackstone," of De Lolme,” and of Mr. Justice Story,” on this provision, may be referred to without being quoted. It will be seen, however, that it provides that the trial shall be held within the State where the crime is committed, etc. Much un- easiness was manifested at the time of the adoption of the Constitution, which caused the adoption of the fifth and sixth articles of amendment, on which comment has already been made in a former part of this work, and need not be re- peated here. The power of Congress is largely discretionary as to the distribution of jurisdiction between the inferior courts which they may from time to time ordain and establish. In a work on the Constitution it is hardly necessary to go into an analysis of the acts of Congress which have distributed the jurisdiction of the United States among the several 13 Blackstone's Commentaries, 3 Story's Constitution, Secs. 1773, 378–881. 1774. * Book 1, ch, 13; Book 2, ch. 16. 808 CONSTITUTIONAL LAW. [$ 383. courts. It may be sufficient to say that in a great many cases Congress has left to the State courts a concurrent ju- risdiction with the Federal courts; but we have seen, where the Constitution confers jurisdiction upon the Federal courts, it is competent for Congress to make the jurisdiction exclu- sive. Judge Cooley, whose accuracy will be a voucher for his statements, has given, in his judicial work on the Consti- tution, this enumeration of the cases and proceedings where Congress has wested exclusive jurisdiction in the courts of the Union: “All crimes and offenses cognizable under the authority of the United States; all suits for penalties and forfeitures incurred under the laws of the United States; all civil causes of admiralty and maritime jurisdiction; saw- ing to suitors in all cases the right of a common-law rem- edy, where the common law is competent to give it; all seizures under the laws of the United States, on land or waters not within admiralty and maritime jurisdiction; all patent and copyright cases; all proceedings in bankruptcy; 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 of other States or aliens.”* So Federal courts have original jurisdiction of actions under the postal laws; suits for drawbacks of duties, and other cases set out in the Revised Statutes of the United States;” also of suits by the United States, or any officer thereof, suing under authority of an act of Congress; suits arising under the revenue laws; suits arising under any law relative to the slave trade; and suits brought by any person to recover damages for an in- jury to person or property on account of any act done by him under any law of the United States for the protection or collection of any of its revenues, or to enforce the rights of citizens of the United States to vote in any State; also of suits of a civil nature, at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum of five hundred dollars (by act of 1887 changed to two thou- ! Cooley on the Constitution, p. 138 2 R. S. U. S. (1878), secs. 563, 711. et Ség. § 383.] JUDICIAL DEPARTMENT, 809 sand dollars), and the United States are petitioners, or where the suit is between a citizen of the State in which it is brought and the citizen of another State. In many of the suits just referred to, the States have concurrent jurisdiction, as a plaintiff might sue a defendant in a State court to his dis- advantage, and he would naturally prefer that his case should be tried in the Federal court. To reach all such cases, though brought in the State court within the jurisdiction of the Federal courts, Congress has gone further, and has made large provision for removing cases from State courts, having original jurisdiction of them, into the inferior Federal courts for trial. Judge Cooley has mentioned a number of cases of this kind in the work just referred to." A single instance may be mentioned: A Virginia plaintiff sues a Massachu- setts defendant, whom he reached by process in Virginia, in the Virginia court. By the Constitution, this suit be- tween citizens of different States is within the jurisdiction of the United States court. The law of Congress gives him a right to remove it. The same plaintiff might sue the same defendant in a Massachusetts State court, and this might be satisfactory to the defendant, but not to the plaintiff. After the suit was brought, a former law permitted the plaintiff to remove the case to the United States court, but the act of 1886–87 prevents this on the ground that the plaintiff, hav- ing made his election, shall not be allowed to remove. It is further provided that, on affidavit by a defendant corpora- tion that it has a defense under the Constitution of the United States, no matter what the amount involved, the case shall be removed to the Federal court. The cases illus- trative of this practice are very numerous, and may be re- ferred to in the note.” This right of removal, granted by 1 Cooley's Constitution, pp. 139–59. Id. 10; Railroad Co. v. Whitton, 13 2Teall v. Felton, 1 N. Y. 537; S. C. Wall. 270; Insurance Co. v. Morse, 20 in error, 12 How. 284; Boom Co. v. id, 445; Insurance Co. v. Pechner, 95 Patterson, 98 U. S. 403; Strauder v. U. S. 188; Gold Washing Co. v. West Virginia, 100 id. 303; Tennes- Keyes, 96 id, 199; Koontz v. Balti- see v. Davis, Id, 451; Virginia V. more & Ohio R. R. Co., 104 id, 5. Rives, Id, 313; Gaines v. Fuentes, 98 810 CONSTITUTIONAL LAW. “ [$ 384. United States law, cannot be taken away or limited by State law; and where a lawful order of removal has been made, and the State court proceeds to judgment, its judgment is reviewable, on appeal to the Supreme Court from the high- est State court, under the twenty-fifth section of the Judi- ciary Act of 1789. On the contrary, if the order of removal was submitted to by the State, but is illegal, the Supreme Court will reverse the judgment and remand the case to the State court for trial." This results from the fact that the jurisdiction of the United States court is rightful, and may be made exclusive of the State court, upon the legal order for removal; therefore the case in the State court was coram mon judice. On the other hand, if the order of removal in the Federal court be illegal, the judgment in that court is void because coram non judice. The provisions of the stat- ute of 1878, above referred to, have been greatly enlarged by the act of March 3, 1887, modified by the act of 1888.” These acts have largely abridged the exclusive jurisdiction of the United States courts, and were so intended.” In this last act, National banks must sue and be sued in State courts as if they were State corporations; and so State courts have jurisdiction of a suit brought against a receiver of a State railroad company appointed by the Federal court in that State. § 384. The policy of removal of cases in the State courts to the United States courts, established by the original act, was extended by the third section of the act of March 2, 1833,4 in consequence of the laws of South Carolina passed to sustain its Ordinance of nullification. Those laws pro- vided for prosecuting and suing an officer of the United 1 Koontz v. Baltimore & Ohio R. & Smith v. Lyon, 133 U. S. 315; T. Co., supra; Stone v. South Caro- Fisk v. Henarie, 142 id. 459; Ten- lina, 117 U. S. 439; Graves v. Cor- nessee v. Bank, 152 id. 454; Han- bin, 132 id. 571; The Removal Cases, rick v. Hanrick, 153 id. 192; In re 100 id, 457. Pennsylvania Co., 137 id. 451; Mo, *24 U. S. Stat. at Large, ch, 373, Pac. Ry. Co. v. Fitzgerald, 160 id. p. 523; 25 Stat. at Large, pp. 433, 556. 435. 44 U. S. Stat, at Large, 632. § 384.] JUDICIAL DEPARTMENT. 811 States for acts done by him under the tariff laws. For any act done under the color of any revenue law of the United States, or on account of any right, title or authority claimed by such officer or other person set up under such laws, the case might be removed to a Federal court; or in case of the imprisonment of any person for acts done by him under the authority of the United States, a habeas corpus from the Federal court for his relief would be granted. This act was somewhat modified and enlarged by the act of 1871* and made to apply to criminal prosecutions in the State courts. It is somewhat singular that this statute was called into operation in respect to the fugitive slave law, and the at- tempted nullification of that law by the State of Ohio. The United States marshal held, under the United States law, a fugitive slave; a State judge ordered his discharge, which the marshal refused to obey, and the State court committed him for contempt. Mr. Justice McLean, upon habeas corpus, discharged the marshal.” In the case of United States v. Jailer, etc., on charge of murder, in the courts of Kentucky, the prisoner offered to show that what he did was under the authority of the United States in the execution of the revenue laws. Judge Ballard discharged him.” Many other cases of like character have been provided for in the Tevised Statutes of 1878. It is provided that in case of the denial to any per- son, in a civil suit or criminal prosecution in a State court, of any right secured to him by the Constitution or laws of the United States, or in any suit against any civil or military officer for any arrest by virtue of, or under color of, authority derived from any law providing for the equal rights of citi- Zens and the like, such suit or prosecution may, upon peti- tion verified by oath of the defendant, be removed to the circuit court of the United States.” It was under section 643 that the important case of Tennessee v. Davis arose.” 116 Stat. at Large, 438. See also 82 Wall, Jr. C. C. 521. R. S., sec. 643. 4 R. S. Of U. S. 641–43. 2 Ex parte Robinson, 6 McLean, 5 100 U. S. 257. 355; Ex parte Bridges, 2 Wood, 428. - 812 CONSTITUTIONAL LAW. [$ 384. Davis was indicted in the State court of Tennessee for mur- der. He made affidavit that the killing charged was com- mitted in his necessary self-defense, while engaged in the discharge of the duties of his office as internal revenue col- lector, while attempting to seize an illicit distillery, and while thus engaged he was assaulted and fired upon, and, in defense of his life, returned the fire by which the killing was done. He prayed a removal of the case into the cir- cuit court of the United States. Three questions were ad- journed to the Supreme Court: Fºrst. Whether the indict- ment for murder was removable to the circuit court of the United States under section 643? Second. If removable, whether there is any mode of trial prescribed in the act of Congress 2 Third. If not, can a trial be had in the circuit court of the United States? The first and third questions were answered in the affirmative; as to the second, it was re- plied that he must be tried under the laws of the State, in the courts of the United States, according to its own forms of pro- ceeding. In this case Justices Clifford and Field dissented in an elaborate opinion, holding that no United States court could have jurisdiction of a homicide committed in the State of Tennessee. With due respect to the decision of the court the author must express his assent to the views of the dissent- ing judges. The removal was based upon the ground that the United States should protect its officer from prosecution by a State for any alleged crime in the discharge of his Federal office. The removal assumes that the State court would dis- regard the defense, and violates in its operation the comity which is due from the one government to the other. The law assumed that the United States court alone would uphold the defense. It could not claim that the United States court had jurisdiction to try the offense. The trial involved the hearing of the defense, and a decision upon that, with the right of ap- peal as shown above, if the decision of the State court had been adverse to the defense of the prisoner. As that defense arose under a law of the United States, the twenty-fifth sec- tion of the Judiciary Act affords ample protection to the § 384.] JUDICIAL DEPARTMENT, 813 prisoner by an appeal from the highest State court to the Supreme Court of the United States. But the removal ousted the State from all jurisdiction to try and punish an offender against its own law, and asserted for the United States court, upon the application of the prisoner, an exclusive jurisdic- tion in that court to try an offender against a State law. This judicial anomaly by which the court of the United States must try a prosecution by the State against its own citizen presents difficulties of a striking character. Is a jury to be selected according to the law of a State or according to the laws of the United States? If convicted, there was no right to appeal to the Supreme Court of the United States; and the right of appeal to the Supreme Court of the State, which he would have had if convicted in the inferior State court, is out of the question. Again, the question arises: If convicted, who may pardon him — the Governor Of the State or the President of the United States ? The decision in that case was substantially upheld, however, in Strauder's Case, Virginia v. Rives,” Ec parte Virginia,” and in Neagle's Case." In Meagle's Case the defendant was a marshal of the United States who accompanied the venerable and esteemed Justice Field upon his duties as the Circuit Judge in California. Terry, who had threatened the life of Judge Field, assaulted him with great violence while sitting at the dinner-table. Marshal Neagle, in defense of the Judge, shot and killed Terry. The State indicted him for homicide, but before trial he sued out a habeas corpus from the United States court, alleging the justification of the act by his duty to defend Justice Field. The United States court discharged him from the custody of the State, and the Supreme Court affirmed the decision. This was done under the Revised Statutes of 1878, section 641. The dissent in this case was very strong. The author, with profound re- spect for the distinguished judge in whose defense the mar- shal acted, ventures to concur with the dissent in this case, 1 100 U. S. 303. 3 100 U. S. 339. 2 100 U. S. 313, 4135 U. S. 1. 814 CONSTITUTIONAL LAW. [$ 384. upon the ground that it goes farther than the doctrine laid down in the case of Tennessee v. Davis, Supra, for it dis- charged from trial the man who committed the homicide, and did not even remove the case, as in Tennessee v. Davis, from the State court to the United States court for trial. A single judge of the United States court discharged Neagle from custody and trial by the State court. In addition to all of the objections stated above to the decision in the case of Tennessee v. Davis, the decision in Weagle's Case involves the exercise of the pardoning power, which is an executive function, by the judge; for what is pardon, if immunity from prosecution of all crimes be not pardon 2 In Weagle's Case Chief Justice Fuller and Justice Lamar dissented. Another case was provided for in the act of August 29, 1842. The act was passed in respect to the celebrated Mc- Leod case. McLeod was prosecuted for murder on the Caroline, which was a vessel supposed to be engaged in aid- ing a revolutionary movement in Canada. He was indicted in the State court of New York for murder, and defended on the ground that, as an officer of Her Majesty's navy, he made the attack for which Her Majesty's government held itself responsible; that the killing was not a personal homi- cide, but was an act of quasi-war. Pending the prosecution quite an extensive correspondence occurred between the government of Great Britain and the government of the United States, in which the former demanded the release of McLeod, and it was felt to be a very delicate situation. Had McLeod been convicted in the State court, despite his de- fense, the United States might have been involved in hostile relations with Great Britain. The situation suggested the passage of a law providing that wherever a defense rested, as in this case, upon the relations of the offender to a foreign government, and the act, seemingly a violation of State law, was international in its character, proper to be arbitrated between the government of the Union and the foreign power, 15 Stat. at Large, 529, 641. § 385.] JUDICIAL DEPARTMENT, 815 the offender should have the privilege of a habeas corpus from the United States court, and upon the defense appear- ing as indicated, that he should be discharged. The validity of this regulation by Congress, it seems to the author, rests upon very solid ground. The United States government has charge of the international relations of the States with foreign powers; and furthermore, under a clause of the Con- stitution in respect to belligerent operations, has the express power to make rules concerning captures on land and water." The capture of McLeod under the circumstances was a highly belligerent act. He was a prisoner of war for the interna- tional act of belligerency, and a prisoner of war cannot be tried by a State for an act of war within the State. His capture brought him within the range of the Federal power, and it was proper to exercise for his discharge the jurisdic- tion of the United States courts. The case above referred to will be considered hereafter in another connection — in commenting upon the nature of the fourteenth amendment to the Constitution. § 385. A large class of cases has arisen where, in aid of and as a branch of the appellate jurisdiction of the Supreme Court, the exercise of that jurisdiction through the habeas corpus right has been of great service. The doctrine may be thus stated: When a court, by process of contempt or any other process, undertakes to punish with imprisonment a man for refusing to comply with its order, which the court had no authority to make, the original order being void, the primitive Order is equally void, and the party, though no appeal lies to the Supreme Court from the order of the in- ferior court, may by the writ of habeas corpus, issued from the Supreme Court, be discharged from his imprisonment.” The same doctrine was extended in Jºe parte Bain.” In this 1 Const. U. S., Art, I, Sec. 8, clause 113 id. 713; Ex parte Rowland, 104 11. id. 604; Ex parte Watkins, 7 Pet. 2 Ex parte Lange, 18 Wall. 163; 568; Ex parte Milburn, 9 id. 704; Ex parte Parks, 93 U. S. 18; Ex Ex parte Kaine, 14 How. 103. parte Siebold, 100 id. 371; Ex parte 8120 U. S. 1. Virginia, Id, 339; Ex parte Fisk, 816 cowsTITUTIONAL LAW, [$ 385. case the prisoner was convicted and sentenced to imprison- ment by a circuit court of the United States, on an indict- ment amended by the district attorney, by leave of the court, after it had been returned by the grand jury. It was held that sueh indictment was not found by a grand jury, and under the fifth amendment of the Constitution the prisoner could not be tried on it, and that his conviction and impris- onment were void. No appeal lay from the judgment of the Supreme Court, but the Supreme Court discharged the pris- oner because the judgment was coram non judice and void. In the case of In re Ayres, the same circuit judge enjoined the Attorney-General of Virginia from bringing suit in be- half of the Commonwealth againstits taxpayers. The Attor- ney-General refused to obey the injunction, and the court committed him, for contempt. He prayed a habeas corpus from the Supreme Court, who discharged him on the ground that the order of injunction by the circuit judge was void and the commitment for contempt was equally so; and, though no appeal lay from either order to the Supreme Court, yet the illegality of the imprisonment required the discharge under the habeas corpus. Again, the powers of the judi- ciary of the United States are, in terms of the Constitu- tion, judiciary powers only, and they imply no political power. They accept the determination of the political de- partments of the government as conclusive, whether war exists or peace has been restored. What is the de facto gov- ernment of another country; the authority of foreign minis- ters; the admission of a State to the Union; the restoration of the seceded States to the Union; the extent of the juris- diction of a foreign power; the relations of the Indians to the government, are all questions which belong to the exec- utive and legislative departments of the government, and in respect to which the judiciary power does not apply, except in regard to what has been decided by the political depart- ments.” This principle has been pressed to an extreme point, 1123 U. S. 443. Wall, 56; Gelston v. Hoyt, 3 Wheat. *United States v. Anderson, 9 246; Foster v. Neilson, 2 Pet. 253; $ 385.] JUDICIAL DEPARTMENT. 817 to which attention will now be called. Upon the passage of what was generally known as the “Reconstruction Meas- ures” in 1867, vetoed by President Johnson, but passed non obstante his objection by two-thirds of both Houses, which substantially subjected the Southern States to a government of military satraps, the State of Mississippi filed a bill against the President praying an injunction restraining the execu- tion of such unconstitutional laws by the President of the United States. The case was argued very fully, and the Su- preme Court unanimously refused to allow the bill to be filed, on the ground that it had no judicial power to enjoin the President in the performance of his official duties." The State of Georgia filed a bill against Secretary Stanton upon the same grounds substantially as in the previous case, and the Supreme Court dismissed the bill for want of jurisdiction upon like grounds. Another effort was made by a bill which it was proposed to file against Generals Grant, Meade and others. The report of the cases does not state wherein they differed from the former cases, nor what the court did with them. These decisions seem to settle the question that the Supreme Court is no arbiter between a State of the Union and the United States government as to any political issue, and that despite the unconstitutionality of the reconstruction acts there was no judicial power to decide upon that question unless it arose in a case between parties where property and personal rights were involved. The political right of a State to be protected against the unconstitutional reconstruction laws of the government is without remedy before the Su- preme Court of the United States; and this was held though in the case of Georgia v. Stanton the bill charged that the effect of the reconstruction measures would be to dispos- sess the State of its public property as well as of its polit- Luther v. Borden, 7 How. 1; Geor- sas Indians, 5 Wall. 757; United gia v. Stanton, 6 Wall. 50; Williams States v. Holliday, 3 id. 407. v. Insurance Co., 13 Pet. 415; Kan- 1 State of Mississippi v. Johnson, 4 Wall. 475. 52 818 CONSTITUTIONAL LATW. [$ 385, ical power; the court saying that the question of property was only the effect of the dispossession of the political power and incident to it. In McCardle's Case, one imprisoned under the judgment of a military court, organized under the reconstruction laws, sought to be released by habeas corpus from the Supreme Court because of the unconstitutionality of those laws and judgment of the courts in pursuance of them. The Supreme Court decided that it had jurisdiction to issue the writ, but postponed the consideration of it until the next term. In the interval Congress passed the Drake bill over the veto of President Johnson, which bill took away the jurisdiction from the Supreme Court to hear the habeas corpus. At the next term the court dismissed the writ of habeas corpus and refused to release McCardle because it had been divested of its power by the Drake bill." There can be no doubt that except for the Drake bill the Supreme Court would have decided to release McCardle on the ground above stated, because the personal right of a citizen was involved as the consequence of an unconstitutional law. Courts-martial are the courts which are constituted under the rules and articles of war for the trial of offenses arising under the military and naval service,” and of militiamen when called into the actual service of the United States. The power to establish these does not exist as part of the judicial power of the United States, but as part of the general war power: “To make rules for the government and regulation of the land and naval forces. To provide for calling forth the mi- litia to execute the laws of the Union,” etc.” The fifth article of amendment saves this power in the exception it makes in the following language: “No person shall be held to an- swer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” The celebrated case of Milligan * was a case of condemnation to 16 Wall, 318; S. C., 7 id. 506. 3 Const. U. S., Art, I, sec. 8, 2 Martin v. Mott, 12 Wheat, 19; clauses 14, 15. Wise v. Withers, 3 Cr, 331. 44 Wall, 2. § 385.] JUDICIAL DEPARTMENT. 819 death of a citizen of Indiana by a court-martial approved by the President. The Supreme Court, after full argument, held the trial, conviction and sentence to be a violation of the Constitution. It may therefore be asserted that courts- martial are only for the trial of persons in the army, navy or military service, when in actual service. Military courts or commissions have been justified by the laws of war and for the trial of persons whose acts impede or obstruct mili- tary operations. When the army is in the enemy's country, provincial courts can be established under military orders, as in the case of the Mexican provinces in the military pos- session of the United States army." While the United States army was in possession of the State of Tennessee dur- ing the civil war, Coleman, a soldier of the army, killed a citizen. There were no civil courts to try him for the homi- cide, and he was tried by a military tribunal and acquitted. After the war he was indicted for the homicide by the civil court of Tennessee and convicted. The Supreme Court held that his acquittal by the military tribunal exempted him from any other trial, and that the conviction by the civil court was wrong and reversed it.” The doctrine seems to be sound that, in the exceptional cases mentioned, where the civil courts are not open, a military tribunal may constitu- tionally try such case. But it must be confessed that the trial of a citizen by a military court is so obnoxious to our Constitution, and especially to the fifth article of amend- ment above cited, that it is difficult to justify any judgment upon a conviction by such a court. The last class of courts to which attention is called are the courts of the Territories. As a Territory is not a State of the Union, and is subject to the government of Congress during its temporary existence as a Territory, it is held that the courts established in the Territories are not courts of the United States. Congress may establish them, and reg- ulate their jurisdiction as part of their governmental power 1 Jecker v. Montgomery, 13 How. * Coleman v. Tennessee, 97 U. S. 512; The Grapeshot, 9 Wall. 129. 509. 820 CONSTITUTIONAL LAW, [$ 385. over its Territories, but not within the terms of the third article of the Constitution, which we have been considering. The judges of these courts, therefore, do not hold offices during good behavior, but are appointed by the President and are removable like other officers. The practice, plead- ing and procedure are left by Congress to be regulated by the Territorial legislatures." 1 American Ins. Co. v. Canter, 1 Wall, 434; Hornbuckle v. Toombs, Pet. 511; Clinton v. Englebrecht, 13 18 id. 648. CHAPTER XIV. LIMITATIONS ON THE POWERS OF THE STATES. § 386. In the tenth amendment of the Constitution, which is in fact but an expression of what is involved by implica- tion in the original Constitution, it is provided: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States re- spectively, or to the people.” This draws the line of demar- cation between the powers delegated to the United States and the powers reserved to the States for the people. The language of the clause would indicate that all powers are reserved to the States, or the people, except two classes: First, those delegated to the United States by the Constitu- tion; and second, those prohibited to the States. We have already considered the extent of the powers del- egated to the United States by the Constitution, and the express limitations upon those powers as well as those which were implied from the nature of the Constitution, and found that those so delegated or implied are not reserved to the States. We come now to consider another class of powers, not reserved to the States or to the people, and that class is those which are prohibited to the States. Two remarks are proper in this connection. First, except for these express prohibi- tions, the States would hold them as reserved under the terms of the tenth amendment. Second, all of these prohibitions are based on the principle that in the nature of Our Union, the powers prohibited to the States should be vested exclu- sively in the common government, and that their exercise by the States would be inconsistent with the intercommu- nication of citizen rights, intended to be conserved by the establishment of the Union. The application of these re- marks to each limitation will appear in the consideration of 822 CONSTITUTIONAL LAW. [$ 386. them. These limitations are of two classes: absolute and qualified. We will consider first the absolute limitations. These are to be found in article I, section 10, clause 1 of the Constitution. The language of the first limitation is: “No State shall enter into any treaty, alliance, or confederation.” It would seem from this express limitation that, but for its being inserted, the States might enter into a treaty, alliance, or confederation. Why is it so expressed ? It is obvious that the exercise of such a power by the State would be con- trary to the nature of the Union, or produce friction with it. If a State might make a treaty with a foreign power, the mutual obligation of such treaty would involve the Union in a defense of the State against unjust enforcement of the treaty, or in offensive operations against a foreign power to enforce the treaty. This would give to each State by its separate will a power to involve all the States in war, which might result from the infraction of the treaty by either of the parties. Such a result would be contrary to the just relations of the States inter se. The treaty-making power between the United States and foreign nations was given, as we have seen, to the President and Senate as represent- ing all. The relations of each State, therefore, to foreign powers was fully met by this power to make treaties be- tween the United States and foreign countries. To make peace and avert conflict, it was the wise policy of the Con- stitution to give the exclusive treaty-making power to the President and Senate as representing all the United States, and to exclude any one State from entering into any such international obligation. An alliance between any State and a foreign power for offense or defense would obviously be inconsistent with the Federal alliance between the States of the Union. It is therefore necessary and wise to prevent any one State from involving the United States in any separate alliance that it might desire to make with a foreign power. The same remark is a fortiori applicable to the prohibition of con- federation by any State with a foreign power. Confeder- § 386.] LIMITATIONS ON POWERS OF STATES, 823 ation would involve political relations established by the Constitution of the Union. To this prohibition both of the preliminary remarks are applicable. The framers of the Con- stitution saw that, if not prohibited, each State might enter into treaty, alliance, or confederation with a foreign power, despite the grant of the power to the President and Senate to make treaties. It was wise, if not essential, therefore, to prohibit any such action by the State. The wisdom of the prohibition need not be further vindicated. No State shall “grant letters of marque and reprisal.” The nature of this power which was granted to Congress" has been already considered. Such letters may be issued in peace and in war; but in either case it is the forcible windica- tion of right by the government that issues them. To allow each State separately to do this might bring on collisions with the privateers of the States and foreign countries which would involve all in war. It is wise and essential, therefore, while granting the power to Congress to do this, that the power should be exclusive of any such power in a State, lest the State, by its separate action, should involve all the rest in war; and yet it will be observed that the prohibition in- volves the implication that the State might have issued its own letters of marque and reprisal if it had not been pro- hibited. No State “shall coin money.” Under the Articles of Con- federation, the States, as well as Congress, had the right to coin money, but Congress had the power to regulate the value thereof. It was clearly intended, not only to grant to Con- gress the power to coin money,” but to make this power ex- clusive by forbidding the States to do so, which would other- wise have been imputed. In considering heretofore the power of Congress to coin money and regulate its value, we have pointed out the important relations of the medium of ex- change thereby provided for in its relations to commerce among the States, and to the intimate and allied relations of citizenship in the several States. Coin of uniform value, 1 Const. U. S., Art. I, Sec. 8, clause 11, 3 Id, Art, I, Sec. 8, clause 5. 824. CONSTITUTIONAL LAW. [$387. for the whole Union, is essential to the freedom of trade which the Constitution proposed to establish between these United Commonwealths. This is to be done by the exclu- sive grant of this power to Congress and prohibition of it to the States. § 387. The next clause provided that no State “shall emit bills of credit.” By the Articles of Confederation, Congress. had the power to emit bills of credit, and there was no pro- hibition of this power to the States. The disastrous effects. which resulted from the emission of bills of credit by the Con- gress of the Confederation as well as by the various States, flooding the avenues of commerce with irredeemable and valueless paper money, made the convention of 1787, as we have seen, strike out the power proposed to be given expressly to Congress to emit bills of credit under the power to borrow money; yet the implication of this power of emitting bills was held not to involve the power to make such bills issued by Congress a legal tender in the payment of debts, but the Constitution intended to cut out by the roots the power of the States to flood the Union with their paper money. This prohibition did not forbid the State to issue paper obliga- tions, bonds, notes, or coupons attached to bonds for pay- ment of interest, etc., and such were not intended to be in- hibited. The meaning, therefore, of the term “bills of credit” came to be a question of importance in the early cases in the Supreme Court. In Craig v. Missouri the Supreme Court held that any obligation by which the State engages to pay money at a future day, and intended to circulate as money, whether they were made by the State a legal tender or not, were unconstitutional. The term “bills of credit ’’ was in that case, and in the later case of Briscoe v. Bank of Kentucky,” held to include all classes of paper issued by the sovereign power, pledging its faith, and intended to circulate as money. The emission of such obligations with such pledge of credit, in the absence of such intention, makes. the instrument not a bill of credit under this prohibition. 14 Pet. 410. 211 Pet, 257, § 387.] LIMITATIONS ON POWERS OF STATES. 825. # \ The court further decided that, while the States cannot emit notes to circulate as money, they may incorporate banks with the power to issue bank-notes to circulate as money. These are the notes of the bank, not of the State, and un- less the State's credit is pledged to the redemption of these bank-notes, such bank-notes will be constitutional, and will not be bills of credit emitted by the State within the terms of this prohibition; and it was afterwards conceded that, though the State was a stockholder, and the only stock- holder, it was held to be the note of the bank and not of the State." While, therefore, certificates issued by the State of Missouri were held to be bills of credit and void, because intended to circulate as money,” the coupons on bonds of the State of Virginia, issued to its creditors, were not held to be bills of credit within the meaning of this prohibition, be- cause, though negotiable and receivable for taxes, they were not intended to circulate as money.” The next provision is that no State “shall make anything but gold and silver coin a tender in payment of debts.” This is a very important provision. Upon it several points may be made. Reading it with the fifth clause of the eighth sec- tion of the first article, which gives power to Congress “to coin money, regulate the value thereof, and of foreign coin,” etc., it is obvious that the power of Congress to coin money enables it to coin gold and silver coin for the purpose of being used as a medium in payment of debts. The clause would then be as if it read, “Congress shall have the power to coin gold and silver coins, and no State shall make any but these a tender in the payment of debts.” Second, taken in connection with the immediately preceding clause, by which the States are prohibited from emitting bills of credit, it is obvious the Constitution contemplated, as the medium of exchange, gold and silver coins struck by Congress, excluding all power of 1 Darrington v. The State Bank of Pet. 410, 482; Burns v. Missouri, 8 Alabama, 13 How. 12. id. 40. 2 Craig v. The State of Missouri, 4 & Virginia Coupon Cases, 114 U. S. 269, 826 CONSTITUTIONAL LA W. [$387. the States to coin money of their own or to emit bills of credit. Third, several of the preceding powers, as we have seen, are correlated to powers granted to the Congress, with which the exercise of the same by the States would be incon- sistent. . That is not the case with this clause, for there is no power given to Congress, nor a hint of a power in Congress, to make anything a tender in the payment of debts. Indeed this clause of prohibition to the States indicates that, but for its being inserted in the Constitution, it would have been left to the States, as a reserved power, to make anything they pleased a tender in the payment of debts. If there is anything which is within the language of the reserved powers of the States, it would be the regulation of the relations of debtor and creditor in the private concerns of society. It was therefore essential that such a prohibition upon the power of the State should be inserted. This prohibition, therefore, gives no war- rant for the assumption of a power by Congress to make any- thing a tender in the payment of debts except gold and silver coin. If the power within this clause of prohibition had been clearly reserved to the States without such prohibition, it would be wholly illogical to infer that the prohibition of such a power was to be equivalent to a grant of the prohibited power to the United States. Under the tenth amendment of the Con- stitution the powers delegated to the United States, if not prohibited to the States, are reserved by that amendment to the States or to the people. It would be an unwarranted perversion of this article to hold that the powers not dele- gated to the United States, but prohibited to the States, are to be regarded, because not reserved to the States, as dele- gated to the United States. It would therefore seem to be a sound interpretation of these kindred clauses of the Con- stitution, that while Congress was to be the instrument for putting the stamp of currency upon coins of gold and silver, in order to create a circulating medium, the States were forbid- den to make anything but these coins a tender in the payment of debts, and no power was delegated to the United States to do so; and therefore, as a medium for the Solution of debts § 387.] LIMITATIONS ON POWERS OF STATES. 82'ſ between man and man, the Constitution intended that the gold and silver coin, stamped by Congress, as well as foreign coins, whose value, like that of the domestic coin, is to be regulated by Congress, was to be the only medium for the payment of debts under the system established by the Con- stitution. Another remark on this and the preceding clause will be applicable. The bills of credit which a State might desire to emit, or the thing which a State might make a tender in payment of debts, would only have been applicable to the people of the particular State itself. It would have been somewhat out of place for the Constitution to have forbidden the State to exercise these powers, but looking to the freedom of interstate commerce, and of the intercourse between the citizens of the different States, and to the unification of the business of the whole Union, without regard to State bound- aries, all of which was contemplated by the Constitution to be free among the States as if they were not separated by State boundary lines. It would be very important that, as far as contractual relations were created between the citizens of different States, the citizen of every other State should be assured that no invidious policy by any one State should shake the credit which was given to the terms of any con- tract. The provision was therefore made to prevent any State from impairing the integrity of contractual obligations by making anything except gold and silver coin, issued by Congress, the medium for the solution of debts. In this aspect the prohibition is essential to the assurance of confidence in- tended to be established in the dealings between citizens of the different States. The next clause provides that no State shall “pass any bill of attainder, ea post facto law, or law impairing the obligation of contracts.” We need say nothing more on the subject of bills of attainder and ea post facto laws than has already been said in discussing a like prohibition on Congress in clause 3 of section 9 of article I of the Constitution. What was said on that subject may be here referred to without any further 828 CONSTITUTIONAL LAW. [$388. comment." The important cases on this subject may be noted.” This prohibition upon the State was not so much designed to defend the citizen of that State from the power of our own Commonwealth as it was to protect the citizens of other States who might be subject to criminal prosecution in a State other than their own. It was to protect these and all from the tyranny of such laws as are mentioned. But the third clause, which forbids any law impairing the obliga- tion of contracts, is one of great importance. The power of this prohibition was, as has already been stated, to maintain the integrity of contracts between citizens of different States and portions of the Union. If any State could, at its will, impair the obligation of a contract between its own citizen and the citizens of other States, it would be a fatal impedi- ment to interstate commerce and Federal intercourse. A careful analysis of this important provision and a reference to the cases in which its interpretation has come before the Supreme and other courts will now be attempted. The mean- ing of the word “law” embraces not only an ordinary act of legislation, but the Constitution of a State, which is held to be a law within the meaning of this clause because it is the supreme law passed by a State; hence, if the Constitu- tion of a State, by its operations, directly or indirectly impair the obligation of private contracts, it would be void under this provision of the Constitution of the United States.” § 388. Contracts are executed and executory. An exe- cuted contract is one between two or more parties by which property or other right is transferred or granted from one to the other. An executory contract is an agreement to do or not to do a particular thing. This clause of the Constitution forbids the impairing of either class of con- tracts. No State can pass a law invalidating or annulling a deed. This was decided in the leading case of Fletcher v. 1 Amte, ch. X. v. Biddle, 8 Wheat. 1; Ogden v. * Ex parte Garland, 4 Wall, 333; Saunders, 12 id. 214; Railroad Co. Cummings v. Missouri, id. 277. v. McClure, 10 Wall, 511; County of * Fletcher v. Peck, 6 Cr. 88; New Moultrie v. Savings Bank, 92 U. S. Jersey v. Wilson, 7 id. 164; Green 631. § 389.] LIMITATIONS ON POWERS OF STATES. 829 JPeck, and it forbids a State from impairing the validity of its grant to a private party.” It was held that a State cannot im- pair its own contract to receive coupons on its own bonds, in the payment of taxes due to itself; and a contract by a State to receive certain bank notes in payment of taxes is binding and cannot be impaired; * but where the State holds a trust fund for certain purposes, it cannot make a contract for the payment of the interest on such trust funds to itself in such bank notes. Its duty as trustee makes its agreement to re- ceive these bank notes, in the payment of interest on such trust funds, a violation of such trust and a violation of such contract. The contract involved is not impaired in obli- gation by the State's refusal to receive such notes in pay- ment; * and this principle is applied to the constitutional duty to set apart a certain proportion of its taxes for school pur- poses, as its contract to receive coupons of its bonds in pay- ment of ordinary taxes is not a valid and binding contract in so far as a school fund is concerned.” It applies also to a contract between two States; neither State can, by law, impair the obligation of such contract." A law of a State granting swamp land, unsettled or drained, and exempting such land from taxation, is a contract between the State and the holder which the State cannot impair by taxing." Cases sustaining these propositions and kindred ones are without number, and a reference to the latest, in which all are more or less named and reviewed, is all that is necessary.” § 389. We come now to the application of this clause to corporation charters. The leading case on this subject is 1.6 Cr. 87; Von Hoffman v. City of Quincy, 4 Wall. 549. 2 New Jersey v. Wilson, 7 Cr. 164; Terrett v. Taylor, 9 id. 43; Coupon Cases, 114 U. S. 269; McGahey v. Virginia, 135 id. 662; Louisiana v. New Orleans, 102 id. 203; Antoni v. Greenhow, 107 id. 769. 8 Woodruff v. Trapnall, 10 How. 190; Furman v. Nichol, 8 Wall. 44; ICeith v. Clark, 97 U. S. 454, 4 Paup v. Drew, 10 How. 218. 5 McGahey v. Virginia, 135 U. S. 662. 6 Green v. Biddle, 8 Wheat. 1, 92. 7 McGee v. Mathis, 4 Wall. 156, 8Thompson v. Missouri, 171 U. S. 380; Thompson v. Utah, 170 id. 343; Hawkes v. New York, id. 189, and Cases Supra. 830 CONSTITUTIONAL LAW. [$389. the Dartmouth College Case." To understand this class of cases, it may be proper to say that a corporation is an arti- ficial being, invisible, and existing only in contemplation of law. Created by the legislative department, it possesses certain properties which the charter confers upon it, either expressly or by implication. It clothes bodies of men with perpetuity of existence, with certain qualities and capaci- ties for the advancement or promotion of some particu- lar object. It is granted to persons who apply for the char- ter and who invest their money or engage in a business the powers of which are conferred by the charter. A law grant- ing a charter to persons does not create a corporation until they accept it.” The law is a proposal by the government to the persons indicated, which becomes a contract between the government and such persons when, under the law and its provisions, they organize for the corporation purposes. Until then the corporation does not exist. When this is done, the proposal of the government, by the acceptance of the parties, becomes a contract between them.” The char- ter of such a corporation is therefore a contract between the government and the persons who accept; and being such a contract, the government cannot repeal, alter, or in any man- ner impair the charter without violating this constitutional provision.” In the leading case of Dartmouth College, supra, the Crown of Great Britain in 1751 had granted a charter for that college to certain parties who contributed their funds for its endowment. The terms of the charter fixed its Organization and prescribed the powers and functions of the various boards and faculty connected with it. After the Revolution the State of New Hampshire (all the rights and privileges, as well as obligations, of Great Britain, then 14 Wheat. 518–677. 330; Rex v. Vice-Chancellor, etc., *The King v. Pasmore, 3 T. R. 3 Burr. 1661; Dartmouth College 199, 240. Case, 4Wheat. 518; Bank of United *Commonwealth v. Cambridge, 7 States v. Dandridge, 12 id. 71; Thax- Mass. 160, 184; Smith v. Silver Val- ter v. Williams, 14 Pick, 53. ley Mining Co., 64 Md. 85; Balti- 4 Cases supra. more & Ohio R. Co. v. Keedy, 75 id, § 389.] LIMITATIONS ON POWERS OF STATES. 831 devolving upon each separate State) undertook to change the charter without the consent of the college. The question came by appeal to the Supreme Court. Chief Justice Mar- shall, in a learned opinion, explained the doctrine that the college was on a contractual basis between the Crown and the founders, and that the State of New Hampshire, as suc- cessor to the Crown, could not change the terms of that valid and binding contract. That case, decided nearly eighty years ago, has been followed by numerous cases in the Federal and in the State courts with almost uniform approbation; and it may be now laid down as the established doctrine that all corporate charters which rest on a contractual basis are un- changeable in every respect by the power of a State." This perpetuity given to corporate power, placing it be- yond the reach of State action by its legislature, if exercised constitutionally, has, in the last century, given rise to a conservative saving in most of the charters of a right of the legislature to repeal, alter and amend at pleasure. When such right is reserved, of course the repeal or amendment of the charter is a part of the contract and may be fully exercised.” But as to this a distinction must be made: all rights, privileges and immunities derived directly from the State's charter are those under the reserved powers of the States to repeal and alter;" and so every right, franchise or power of the corporation depends for its being upon the grants of the charter." But all rights of property or other rights, acquired by the exercise of its chartered pow- ers, are beyond the reach of the legislative repeal and can- not be divested. The exercise of chartered power in the future is ended by repeal, but the fruits of the exercise of such power before the repealing act cannot be taken away.” 1 Jefferson Branch Bank v. Skelly, leau Co., 93 U. S. 595; Beer Co. v. 1 Black, 442; Hall v. Wisconsin, 103 Massachusetts, 97 id. 25. U. S. 5; Binghamton Bridge, 3 & Tomlinson v. Jessup, 15 Wall. Wall. 51; New Orleans v. Houston, 454, 119 U. S. 265. * Greenwood v. Freight Co., 105 2 West Wisconsin Ry. Co. v. U. S. 13. Board of Supervisors of Trempea- 6 Mumma v. Potomac Co., 8 Pet, S32 CONSTITUTIONAL LAW. [$ 389. Repeal takes away power, but cannot take away what the power created while it was in being. A tree may be cut down, but its gathered fruit is beyond the power of the axeman to injure. So if a charter be wholly repealed, and while it cannot survive as a corporation, all its property rights or other franchises that may exist may be sold or dedicated to the payment of its debts or divided among its stockholders;" and so when the power to alter is exercised, while it cannot continue to act, except under its modified charter, the charter itself is not binding upon the corpora- tors without their consent.” - An eleemosynary corporation charter is irrepealable, and not to be impaired except by the consent of the founders; but such corporations on public foundation are subject to the legislative power of repeal and alteration, and this though such corporation has been aided by private contributions. The original public foundation gives character to the funds so contributed; e contra, such a corporation on private foun- dation, though aided by public contributions, is still not subject to legislative repeal or alterations.” But where a corporation by its charter is based on State and private sub- scriptions of stock, this was held to be contractual and irre- pealable.* Again, a municipal corporation is a subordinate Body-politic. These grew out of the public policy attendant on Roman conquest, and were corporations endowed by im- perial Rome, with, certain political functions for the par- ticular locality. They were the prototypes of the free cities of the middle ages, which were the defenses of liberty under 281; New Jersey v. Yard, 95 U. S. 3Dartmouth College Case, 4 104; County of Scotland v. Thomas, 94 id. 682; Sinking Fund Cases, 99 id. 700. 1 Memphis R. R. Co. v. Commis- sioners, 112 U. S. 609; Willamette M. Co. v. Bank, 119 id, 191; Shields v. Ohio, 95 id. 319. * Yeaton v. Bank of the Old Do- minion, 21 Gratt, 593. Wheat. 518; Curran v. Arkansas, 15 How. 304; Mormon Church v. TJnited States, 136 U. S. 1; City of Louisville v. President, etc. of Uni- versity, 15 B. Mon. 642; Visitors, etc. of St. John’s College v. State of Maryland, 15 Md. 330. 4 Essex Public Road Board v. Skinkle, 140 U. S. 334. § 389.] LIMITATIONS ON POWERS OF STATES. 833 local administration against the despotism of the era. In modern times the government of England and the States of America have created cities and towns with charters in which there is a delegation by the sovereign power to the munici- pality of certain political functions, with a view to needful. local government. Counties, cities and towns are embraced in this class. w These charters are based upon no contract with the peo- ple, but created by the political authority for its conven- ience and for motives of public policy. The relation between the sovereignty and municipality is not contractual, but is one of delegation by a principal to an agent. This grant of political power, therefore, is revocable at the will of the State, because it is not on a contractual basis;" and this dis- tinction was maintained in the early leading case of Dart- mouth College; and Sharswood, J., has said in an important case,” with great force, that “a State legislature, being a delegated authority, cannot delegate its legislative power to a municipality by irrevocable grant.” Such a contract of alienation would be ultra wires and void.” A benefit granted to a county by a State is revocable, because a benefit to itself," and the legislature may resume its power in a city at will.” It is clear that a State cannot, therefore, alienate, by charter or otherwise, to a municipal corporation its political 1 Korn v. Mutual Assurance So- ciety of Virginia, 6 Cr. 192; Mary- land v. Baltimore & O. R. R. Co., 3 How, 551; East Hartford v. Hart- ford Bridge Co., 10 id. 511; Butler v. Pennsylvania, 10 id. 402; Trustees, etc., v. Indiana, 14 id. 268; Zabris- kie V. Cleveland, etc. R. R. Co., 23 id. 381; Yeaton v. Bank of Old Domin- ion, 21 Gratt. 604; Laramie Co. v. Albany Co., 92 U. S. 307; Mt. Pleas- ant v. Beckwith, 100 U. S. 514, 2 Philadelphia v. Fox, 64 Pa. St. 169. 8 State Bank of Ohio v. Knoop, 16 How, 369; United States v. Rail- road Co., 17 Wall. 322; Yeaton v. Bank of Old Dominion, 21 Gratt. 604; Whiting v. Town of West Point, 88 Va. 905. 4 Maryland v. B. & O. R. R. Co., 12 Gill & J. 399; S. C., 3 How, 534, 5 Mayor, etc. v. State ex rel, Board of Police, 15 Md. 376; Bass v. Fon- tleroy, 11 Tex. 698; Matter of Lands in Town of Flatbush, 60 N. Y. 398; People v. Hurlbut, 24 Mich. 44; United States v. Memphis, 97 U. S. 284; New Orleans v. Clark, 95 id, 644, 53 834 CONSTITUTIONAL LAW. [$389. duty to preserve the health or morals of the people. Its political power is not a subject for contract of transfer, and such a contract is void and revocable." Therefore a lottery charter, though contractual with the parties to whom granted, may be revoked by the State, because the contract itself is subject to the supreme and inviolable right of the State to regulate the morals of its people.” So it cannot, by charter contract, debar itself from regulating railroad charges, for the railroad company is chartered to perform public func- tions for the benefit of the public, and the State cannot con- tract away its duty to protect the people against exorbitant charges. The company is presumed to take the charter sub- ject to the power of the State to regulate it.” The contract by a State not to tax the property of a corporation is against public policy, and will not be presumed unless it is clearly exempted.* To make such a contract valid, there must be a consideration to the State and the contract must not be against public policy.” In the Lake Front Cases" the Supreme Court held that the State of Illinois held the right of the public lakes and their public use for the benefit of its peo- ple, and that it had no power to alienate to a railroad com- pany these rights which it held in trust for the public; that the contract was ultra vires, and that a repeal of the law was not an impairment of the contract because the contract itself was void." The several apparent exceptions to the operation of this clause may now be mentioned. A State may not impair or avoid a valid contract, but it may validate a contract which 1 Butchers’ Union, etc. Co. v. Cres- cent City, etc. Co., 111 U. S. 746. 2Stone v. Mississippi, 101 U. S. 814; Fertilizing Co. v. Hyde Park, 97 id. 659. 3 Railroad Co. v. Fuller, 17 Wall, 560; Pennsylvania R. R. Co. v. Mil- ler, 132 U. S. 75; Chicago, etc. Ry. Co. v. Wellman, 143 id. 339; New York, etc. R. Co. v. Bristol, 151 id. 556. 4 New Orleans, etc. Co. v. New Orleans, 143 U. S. 192. 5 Rector, etc. v. County of Phila- delphia, 24 How. 300; Delaware R. R. Tax, 18 Wall. 206; Tucker v. Fer- guson, 22 id. 527. 6 146 U. S. 387. 7 New Orleans v. New Orleans Water-works Co., 142 U. S. 79; Gosz- ler v. Corporation of Georgetown, 6 Wheat, 597, § 389.] LIMITATIONS ON POWERS OF STATES. 835 otherwise would be void. It cannot make a contract be- tween two parties, but, where a contract made between them is void for lack of some formality, it may be vali- dated. The propriety to do this may be questioned, but the authority to do it is not forbidden by this clause." Again, the interest allowed by a contract cannot be changed by law, for that would impair the obligation of the contract; but the interest on the judgment of the contract may be changed by the law, for this interest on a judgment is not contractual. It operates by force of law and may be changed.” Again, this clause only forbids the impairment of the obli- gation of a contract, and it does not forbid a State to avoid a liability, for a tort ea vi termini is not ea contractu.” It has been stated above that a charter to a corporation which is not municipal is a contract with those who accept the charter, invest their money on the faith of it, and operate the corporation, and that the State cannot change such char- ter without the consent of the corporation. A principle has been settled which it is important to consider as modify- ing this doctrine. As all of these charters grant to certain individuals powers which belong to the public, and to that extent may be detrimental to the public interest, it has been decided in Charles River Bridge Co. v. Warren Bridge Co.” that the construction of all such charters must be strictly against the corporation and favorable to the public, and that no corporate powers are to be presumed to be conferred ex- cept those expressly granted or such as are implied by clear interpretation. The learning of the court, therefore, is against the surrender of public power to the corporation, and the pub- lic is only bound to the extent of that which is clearly granted by the charter. In the leading case just mentioned the legisla- ture of Massachusetts granted to the Charles River Bridge Co. a franchise to build a bridge over the Charles river, and 1 Clark v. Barnard, 108 U. S. 447. 8 Freeland v. Williams, 131 U. S. 2 United States v. Walker, 109 U. 405. S. 250; United States V. Poinier, 411 Pet, 421. 140 id. 162, 836 CONSTITUTIONAL LAW. [$389. afterwards granted a charter to the Warren Bridge Co. to build a rival structure. It was claimed by the first company that its monopoly was infringed upon by the creation of the new charter, but the Supreme Court held that though that was so, the legislature had not so bound itself in granting the first charter that it could not grant another to any other rival company, and the two charters were therefore held valid. The cases on this subject are numerous, but in this work a discussion of all of the distinctions is not deemed necessary." This also applies especially to cases of exemp- tion from taxation. It is not to be presumed that such ex- emption is intended to be granted to any corporation, and therefore the construction in favor of it from the charter must be very clear and beyond doubt.” Such exemption from taxation may be the subject of contract by a State with a person, but it will not be unless clearly granted.” We will consider now what the clause declares shall not be impaired. Note it does not say the contract shall not be impaired, but the obligation of the contract shall not be im- paired, because it is possible that the contract may be left in its integrity when its obligation is destroyed. What then is meant by the term “obligation,” as applied to the con- tract? The civil-law view of the contract suggests a very clear meaning for this word obligation.* The word pactum, (same root as paa) is the aggregatio mentºwm of the parties. Pact is simply the agreement between the parties without reference to its legal effect. Another word, contract (con 1 Beaty v. Knowler, 4 Pet. 152; Providence Bank v. Billings, Id, 514; United States v. Arredondo, 6 id. 736; Dubuque, etc. R. R. Co. v. Litchfield, 23 How. 66; West River Bridge Co. v. Dix, 6 id. 507; Rice v. Railroad Co., 1 Black, 359; The Binghamton Bridge, 3 Wall, 51; Slidell v. Grandjean, 111 U. S. 412; Vicksburg, etc. R. R. Co. v. Dennis, 116 id. 665; Given v. Wright, 117 id. 655. * Woodruff v. Trapnall, 10 How. 190; State Bank v. Knoop, 16 id. 369; Furman v. Nichol, 8 Wall. 44; Home of the Friendless v. Rouse, Id. 430, 439; Jefferson Branch Bank v. Skelly, 1 Black, 436, 474; Asylum v. New Orleans, 105 U. S. 362; Louisi- ana v. Jumel, 107 id. 750; Tennessee v. Whitworth, 117 id. 138. 3 Given v. Wright, 117 U. S. 655. 4 Maine's Ancient Law, p. 313. § 389.] LIMITATIONS ON POWERS OF STATES. 837 and traho), expresses the drawing together of the parties to the pact by the vönculum juris. Pact becomes contract when the vinculum juris draws and holds the parties together. Pact, without legal sanction, is nudum pactum; with legal sanction it is a contract. Obligation (ob and lºgo, binding upon one or to the other) is defined to be juris vinculum, quo necessitate adstringimur alouffus solvenda, re. Contract, therefore, is equal to pact plus obligation. Pact minus obli- gation is nudum pactum." Obligation of contract is there- fore the chain of law which binds parties to the pact, the chain which the law throws around the parties who have made a pact; hence all the legal machinery by which each party to a pact is ea necessitate legis bound to fulfill its terms constitutes the chain — the obligation of the contract; but to take away or weaken any link in that chain or any part of the legal machinery (a procedure which obliges the party to perform it) is pro tanto to impair the obligation of the con- tract and is forbidden by this clause of the Constitution. The chain is only as strong as its weakest link. To weaken any link is therefore to weaken the chain. Each essential remedy to this obligation afforded by State law, at the time of the contract, is secured against impair- ment by State law. Each is a link in the chain, and to de- stroy or impair any link is to destroy the obligation of the contract. To leave the contract untouched is not sufficient. The State must leave every essential remedial link in the procedure which constitutes the winculum juris in all of its integrity and without impairment. In the language of Jus- tice Curtis in Curran v. Arkansas; * “If the law is so changed that the means of enforcing the duty are materially impaired, the obligation of the contract no longer remains the same.” In other words the parties contracted on the faith of the remedial procedure by which its obligation is to be enforced. The material impairment of any part of this procedure is to impair the obligation of the contract.” The right to sue 1 State of Louisiana v. Mayor, etc., 215 HOW, 304. 109 U. S. 285; Pennsylvania R. Co. 8 Tennessee v. Sneed, 96 U. S. 69; v. Miller, 132 id. 75. Louisiana v. New Orleans, 102 id. (838 * constituTIONAL LAW. [$389. upon a contract, to prosecute it to judgment, and to issue exe- cution against any party and his property for the Satisfaction of the judgment, are successive links in this vinculum juris, and included in this are all provisions for sale of property under such execution, or the sale under mortgage or other security given for the debt. A material change in any of these provisions is a change in the vinculum juris. If the chain lessens the security it impairs the obligation." Any such change may be made by the legislature to op- erate as to future contracts, but cannot operate as to prior contracts. The statute of limitations may be changed by a State and the time may be shortened, but if so shortened as to defeat a right to sue, existing at the date of the law mak- ing the change, it impairs the obligation of a contract and is void. And it is held that all such statutes of limitations will be void as to prior contracts, unless the new limitation leaves ample and sufficient time for the party to sue. If it does not it is void.” Where executions are allowed at the date of the contract against land and personal property of the debtor, and a law is passed which materially changes the property subject to execution, or postponing the sale of such property by levy or execution, or postponing the sale under a mortgage beyond the time prescribed by it, or mak- ing the sale invalid if the property does not bring a certain amount of money, all of these impair the obligation of the contract, because they weaken the link in the vinculum juris. But it is clear that the courts, especially of equity, have ju- dicial discretion to see that property shall not be sacrificed, and may adopt rules which postpone the right of the creditor until a fair sale of the property according to judicial rules can be made. This is not law-making, but it is judicial dis- Cretion, and the exercise of such discretion is not within the 203; Hartman v. Greenhow, Id. 672; 608; Howard v. Bugbee, 24 id. 461; Fertilizing Co. v. Hyde Park, 97 id. Gunn v. Barry, 15 Wall. 610. 659; Virginia Coupon Cases, 114 id. 2Terry v. Anderson, 95 U. S. 628; 269; White v. Hart, 13 Wall. 646; McGahey v. Virginia, 135 id. 662; Walker v. Whitehead, 16 id. 314, Wheeler v. Jackson, 137 id. 245. 1 McCracken v. Hayward, 2 How. § 389.] LIMITATIONS ON POWERS OF STATES, 839. prohibition of this clause;" and, while execution against the property of a debtor cannot be materially changed, yet the execution of ca. Sa., which constrains the debtor's liberty to enforce the payment of the debt, may be abolished or changed without an impairment of the obligation of the contract. The semi-punitive means of imprisonment of the debtor is not regarded as an essential part of the obligation. The means of the debtor, his property, is still left without impairment within the reach of the creditor,” nor will any change in the form of action or the mode of court procedure, unless material to its efficiency, be held as an impairment of the obligation of the contract.” There was a dictum in Bron- son v. Kinzie," to the effect that what are known as poor-law exemptions might be increased with moderation without conflict with this clause of the Constitution, it being held that the State had a right to provide, by internal polity, against the utter destitution of the poor debtor by execution laws which would sweep away the essential parts of house- hold and kitchen furniture used for the preservation of the life of the inmates of his home. But this dictum must be carefully guarded, for it is on the verge of impairment of the obligation of contracts, and, if unduly extended, would amount to it. Thus, homestead laws have been passed in late years which largely extend the exemptions of the debt- or's property from the reach of execution. In Virginia $2,000 worth of property is saved to the debtor as his home- stead. This would defeat many debts and clearly would impair the obligation of the contract, and such laws have been held void.” So stay laws, and laws postponing the fore- closure of mortgages and the like, which would not prevent 1 Denney v. Bennett, 128 U. S. 489. 41 How. 313. 2 Penniman's Case, 103 U. S. 714. 5 Curran v. Arkansas, 15 How. 3 White v. Hart, 13 Wall. 646; 304; Von Hoffman v. Quincy, 4 Tennessee v. Smeed, 96 U. S. 69; Wall. 535; Taylor v. Stearns, 18 Edwards v. Kearzey, Id, 595; Loui- Gratt. 244; The Homestead Cases, siana v. New Orleans, 102 id. 203; 22 id, 266. Antoni v. Greenhow, 107 id. 769. 840 CONSTITUTIONA L LAW. [$389. but delay the remedy provided by the contract, are changes in the terms of the contract which impair its obligation." In the Virginia Coupon Cases,” and in McGahey v. Virginia,” the law of Virginia which changed the contract of these coupons, which were made receivable in the payment of taxes to the State, and forbade their reception for taxes, was a clear impairment of the obligation of the contract, and was so held by the Supreme Court of Virginia and by the Supreme Court of the United States. In all of the above cases the prohibition applies to the obligation of implied as well as express contracts.” It may be well to say that a law of Virginia, passed prior to March 4, 1789, which impaired a pre-existing contract, was held to be a valid law, because made before the Constitution went into effect.” Does the prohibition to the States, to pass any law impairing the Ob- ligation of a contract, involve the inference that Congress may pass such laws. Clearly not, except as to the grant of power to Congress to pass uniform bankrupt laws.” The Stafe, because of this prohibitory clause, cannot pass a bank- rupt law, but Congress under the express grant of power may do so. On this subject reference may be made to what has been said before." The remaining words of these prohibitions are: “No State shall grant any title of nobility.” This prohibition applies equally to Congress.” The obvious purpose of these two prohibitions was that the States of the Union were to con- tinue republican States. The guaranty clause shows this.” 1 Sturges v. Crowninshield, 4 Wheat. 200; Ogden v. Saunders, 12 id. 213; Planters' Bank v. Sharp, 6 How. 301; Hawthorne v. Calef, 2 Wall. 10; Taylor v. Stearns, 18 Gratt. 244, 2 114 U. S. 269. 3 135 U. S. 662, 4 Gunn v. Barry, 15 Wall. 610; Fisk v. Jefferson Police Jury, 116 TJ. S. 131. 5 Owens v. Speed, 5 Wheat. 420. 6 Const. U. S., Art. I, sec. 8, clause 4. 7 Ante, Bankruptcy. See also Cooley on the Constitution, 343,344; Gunn v. Barry, 15 Wall. 610, and the dissenting opinion in Sinking Fund Cases, 99 U. S. 700. 8Const, U. S., Art. I, sec. 9, clause 8. 9 Id, Art, IV, sec. 1, clause 1. § 389.] LIMITATIONS ON POWERS OF STATES. 841 Baron Montesquieu had declared, and his statement was quoted with approbation in the Federalist, that a union be- tween republics and monarchies was inconsistent. Nobles are non-elective, their political power being hereditary. The existence of such a class would be inconsistent with Our re- publican system in State and Federal government. The consideration of this article calls for an observation upon the effect of its provisions upon the broader question of the relations of States to the Union. We come now to qualified limitations upon the powers of the States. Those in the first clause of this section were absolute. The second clause of this section provides: “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treas- ury of the United States; and all such laws shall be subject to the revision and control of the Congress.” An analysis of this section results in this: First. The State is prohibited from laying any duties on imports or exports, without the consent of Congress. Second. Despite this prohibition the State may lay such imposts or duties where absolutely nec- essary for executing its inspection laws. Third. The net produce of all duties and imposts laid by any State shall be for the use of the treasury of the United States. Fourth. All such laws shall be subject to the revision and control of Congress. It will be noted that under the first head a State may lay duties on exports as well as imports with the con- sent of Congress. Congress cannot lay any duties or tax on articles exported from any State." This power to lay im- posts or duties on imports might infringe upon the power of Congress to lay duties on imports, and it is therefore in- tended that the State should not exercise this power, which might so conflict with the revenue power of Congress, with- out its consent. And further, lest there should be conflict 1 Id, Art. I, Sec. 9, clause 5. 842 CONSTITUTIONAL LAW. [$ 389. after the consent of Congress was given, the saving clause was inserted, that the net produce of all such duties and imports (that is, after paying the expenses of collection) should go into the treasury of the United States. This pre- vented the State from using this power for revenue pur- poses. The purpose the States might have in view in such duties was intimated to the convention as being the pro- tection of their own products against foreign competition. The case of Brown v. Maryland' decided that a license tax imposed by the State of Maryland after they pass the custom-house was a tax and duty on imports, and being without the consent of Congress was unconstitutional and void. The court held that a duty on imports then was not merely a duty on the act of importation, but is a duty on the thing imported; a duty on the articles entering the country, as well as a duty on the article after it has entered the country. The words “exports” and “imports,” here used, mean to and from the foreign country.” It does not seem that this power of the State has ever 'been exercised under any consent of Congress. Under the second head we have the exceptions of such imposts or du- ties on imports or exports as may be absolutely necessary for executing the inspection laws of a State. The language and the decisions under it make this exception free from the necessity of the pre-consent of Congress. In the great case of Gibbons v. Ogden,” the Chief Justice said that the power to pass inspection laws was not derived from the power to regulate commerce, but was distinct from it; and also that “the object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or it may be, for domestic use. They act upon the subject before it becomes an article of foreign com- merce, or of commerce among the States, and prepare it for 112 Wheat. 419; Law v. Austin, 169; Brown v. Houston, 114 U. S. 13 Wall 29, 622. *Woodruff v. Parham, 8 Wall. 39 Wheat. 1, 203. #23; Almie v. California, 24 How. § 389.] LIMITATIONS ON POWERS OF STATES. 843 that purpose. They form a portion of that immense mass of legislation, which embraces everything within the terri- tory of a State, not surrendered to a general government; all which can be most advantageously exercised by the States themselves.” In the case of Turner v. Maryland," Mr. Justice Blatchford, in a very elaborate opinion, resting upon the decision and language of the opinion in Gibbons v. Ogden, Supra, says that these laws “may have a remote and considerable influence on commerce;” and decided, speaking for the court, that the function of inspection is not only to inspect the article produced, but the package con- taining it, and therefore that involves the inspection of the “quality of the article, form, capacity, dimensions and weight of package, mode of putting up and marking and branding of various kinds,” and that they may lawfully require the article to be brought to a State warehouse for inspection. All of these provisions (as to which the opin- ion goes into great detail) are proper for inspection laws, and taxes and duties imposed upon articles so to be ex- ported are valid because within the exception of this clause of the Constitution. In the case of People v. Compagnie, etc.,” the Supreme Court sanctioned the decision just cited, and decided further that it applied exclusively to the inspec- tion of personal property. But let it be observed that these inspection laws, and the duties on imports or exports con- nected there with, do not need the pre-consent of Congress; that the last sentence of this clause clearly makes them sub- ject to the revision and control of the Congress. In the case of Turner v. Maryland, supra, the inspection laws as to tobacco adopted by the State of Maryland as well as an outage charge were held to be constitutional. The revision of these laws and control of them by Congress was intended to prevent the inspection power of the States by provisions that might con- flict with the revenue and commercial powers of the Federal government. It is not very clear whether the net produce 1 107 U. S. 38. 2 107 U. S. 59. 844 CONSTITUTIONAL LAW. [$ 389. which is to be paid into the treasury from such duties and imposts applies to those laid for executing its inspection laws, but it is probable that the fair construction applies to those imposts or duties which are to be laid only with the consent of Congress, as well as those which are laid in re- spect to the execution of the inspection laws. “No State shall, without the consent of Congress, lay any duty of tonnage.” The power to lay duties on tonnage is clearly included in the eighth section of the first article of the Constitution. If the States could lay a duty on tonnage, it would interfere with the power given to Congress; therefore this prohibition on the State's exercise of the power is subject to the pre-consent of Congress. A duty on tonnage is not only a revenue, but a commercial measure, because to regulate commerce, as we have seen, means to regulate navigation. A duty on tonnage meant to prohibit the States from levying a duty on vessels, measured by their capacity, or upon them as instruments of commerce, or upon their privilege of trad- ing to any port. These all relate to commerce, to vessels as the instruments of commerce with foreign nations or among the States, and belong to Congress under the powers just re- ferred to." A State may tax the ship as property,” but can- not tax the vessel by the ton.” So demanding of a vessel on landing a sum proportioned to its tonnage is within this prohibition.” But a wharfage due is not a tax and may be laid in proportion to tonnage.” The clause proceeds: No State “shall keep troops or ships of war, in time of peace,” without the consent of Con- 1 Cannon v. New Orleans, 20 Wall. 577; State Tonnage Tax Case, 12 id. 204; Steamship Co. v. Tinker, 94 U. S. 238; Peete v. Morgan, 6 Wall. 31; S. C., 19 id. 581; Steamship Co. v. Port Wardens, 6id. 34; Transpor- tation Co. v. Wheeling, 99 U. S. 273. *Transportation Co. v. Wheeling, 99 U. S. 273; St. Louis v. Ferry Co., 11 Wall, 423. 3 State Tonnage Tax Cases, supra. 4 Steamship Co. v. Tinker, 94 U. S. 238, supra; Peete v. Morgan, 19 Wall, 581, supra; Cannon v. New Orleans, 20 Wall. 577. 5 Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 id. 559. § 389.] LIMITATIONS ON POWERS OF STATES. 845 gress. This was to prevent the States from being on a war footing. If they had this power it might be dangerous to their neighbors in the Union or incite them to belliger- ency with foreign powers, either of which would involve the Union in the hostile action of any one of its members, which would be contrary to the nature of the alliance between them. But this does not mean to forbid the use of the militia, which is left completely under the control of the States, by the previous provisions of the Constitution, ex- cept when they are called forth to execute the laws of the Union." This is the more obvious from the latter part of this clause, which forbids the State to engage in war, unless invaded or in such imminent danger as will not admit of delay. So that it is clear a State may engage in war when actually invaded, etc.; but how could it engage in war in either event unless it had an armed force; and that such was within the contemplation of the framers of the Constitution is obvious from the two important numbers of the Federalist to which reference has been made in a former part of this WOrk.” The remaining prohibition of this clause is that no State shall, without the consent of Congress, “enter into any agree- ment or compact with another State, or with a foreign power.” The object of this is very clear. An agreement or com- pact with another State, of a political character, might be in conflict with the agreement and compact of the Union. A compact as to boundary might enlarge or decrease one or the other State, and might in this way transfer territory from one to the other, which, under the fair interpretation of the subsequent provisions of the Constitution, should re- quire the consent of Congress. Under the pretext of set- tling a boundary line, one State might be materially in- creased and another diminished, which would change the proportion of representation in the House of Representatives by the action of two States without the consent of the oth- 1 Const, U.S., Art, I, sec, 8, clauses 2 Federalist, Nos. XXVIII, LXVI. 16, 17. 846 CONSTITUTIONALL LAW, [$389. ers. It was a wise policy, therefore, which prohibited any such action by two States without the consent of the Con- gress." In closing this comment upon the prohibitions upon the States, it is proper to say that but for this prohibition the States were in condition to have exercised concurrently with Congress all the chief powers which were wested in it by the Constitution, and the purpose of the Constitution was to maintain in their integrity the powers which the States had conferred upon the general government without the right of any one State to interfere with them. These are all of the prohibitions that were made under the original Constitution, and are those referred to in the tenth amend- ment to the Constitution by the words: “The powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved to the States respect- ively, or to the people.” The war between the States which began in 1861 and ended in 1865 suggested, in the course of a few years, three amendments: the thirteenth, fourteenth and fifteenth, which contain further and important limitations to the powers of the States, to which attention will now be called. Much has been said as to the character of the powers delegated to the United States as compared to those reserved to the States, and it has been concluded by some writers that the States, by the Constitution, have been reduced to municipal- ities, while all the chief sovereign powers have been granted to the Federal government. It is said the war power, the treaty power, the commerce power, and the like, are national powers which belong to the Federal government and are denied to the States. Looking to the number of powers assigned to the two governments in our system, all of which are sovereign pow- ers, the State has unquestionably the large majority of them. The nature of the two classes gives the pre-eminence in the reach and majesty of power to the Federal government. The State in the management of internal polity has a wide field, 1 Poole v. Fleeger, 11 Pet, 185; Rhode Island v. Massachusetts, 12 id. 657. g 389.] LIMITATIONS ON POWERS OF STATES. 847 but these domestic objects are not as striking in their dignity as the range of Federal polity over the affairs of a continent, and the international relations of the continent to the out- side world. But in their essential sovereignty of dominion they are alike and are of equal dignity. The real question in the comparison of the two classes is as to the holders of the respective powers. The Federal government holds the one class and the State governments the other class. Back of both is the reserved authority of the States, as delegators of both classes, and as the original source of all powers belonging to both governments. The powers held by the Federal and State governments are dele- gated to them by the States, as the Bodies-politic, with essen- tial sovereignty, from which emanate the functional capaci- ties of each of these governments. That this is so, in fact, is demonstrated by these sections of the Constitution which prohibit the States from the exercise of certain functions assigned to the Federal government. Each prohibition is a negation, with the affirmation that except for the self-denial each State could exercise the forbidden power. The State has all the potentiality to exercise the power, else why for- bid its exercise by the State? If the nature of the Federal system shriveled the statehood into such proportion that the State had no potentiality to make war or treaties, why forbid it to do so? The prohibition implies the potential- ity, which must be prevented from exercise by a self-deny- ing stipulation. Annul the prohibition by striking out this section, and these powers would belong to the State govern- ments concurrently with the Federal government. The States granted them to the Federal government and denied them to the State governments, because the States wisely declared such powers were better delegated exclusively to the Federal government than to the State governments con- currently with that government, or by exclusive reserva- tion. So far, therefore, from these sections supporting the idea that the States are dwarfed into municipalities by them, 848 CONSTITUTIONAL LAW. [$ 389. they prove that the States, as Bodies-politic, are masters of both governments, and that the State has equal potentiality with the Federal government to hold and exercise these tre- mendous powers; but the exercise of them by the State gov- ernments has been prohibited by the Constitution because of the relations of the States to each other. The fact, there- fore, that such powers had been delegated to the Federal government and the exercise of them denied to the State governments for reasons of public policy does not disparage the potential capacities of the State governments, nor does it, a fortiori, derogate from the essential sovereignty of the States, as Bodies-politic, whose mandatory authority, ex- pressed in the Constitution, is the source of the powers con- ferred on the Federal government, and of the prohibition of the same to the State governments. Referring to what has been said in another place on the general character of these amendments, and of the war which preceded their adoption, it is proposed now to discuss the effect of these amendments upon the powers of the States. On the 1st of February, 1865, Congress passed a resolution proposing the thirteenth article of amendment to the Con- stitution. It was ratified by the legislatures, and was pro- claimed by the Secretary of State as a part of the Constitu- tion on the 18th day of December, 1865. It is in the following words: “Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Section 2. “Con- gress shall have power to enforce this article by appropriate legislation.” The date of the passage of the resolution was more than two months before the surrender of the armies of the Con- federate States, but it was ratified many months after the actual close of the war. The Southern States recognized that the doom of slavery was pronounced by the failure of their cause; and a number of the Southern States ratified the article with that conviction, so that both sections adopted § 389.] LIMITATIONS ON POWERS OF STATES. 849 the amendment as a declaration of the fact, which was the inevitable result of the downfall of the Confederacy. Slav- ery had long been an apple of discord between the two sec- tions. The restoration of the Union in peace required that the institution should be abolished in order to harmony in the Union. When adopted by the States it was a new stip- ulation of the compact of the Union that slavery should cease everywhere. The language of the article is copied from the celebrated Ordinance of 1787. The original Con- stitution had agreed that the slave trade should be prohib- ited after the 1st of January, 1808. This amendment pro- hibited the existence of the institution of slavery after its adoption. It declared that slavery should not exist within the United States, i.e., in any one of the States of the Union, and that the prohibition extended to any place subject to their jurisdiction. It prohibited it in the States where it was subject to the jurisdiction of each State, and then pro- hibited it in any place subject to their jurisdiction, i. e., the jurisdiction of the United States. This includes the District of Columbia, courts, arsenals, Territories, etc., which were not subject to the jurisdiction of any single State, but to their jurisdiction—the jurisdiction of the many States united. The amendment, therefore, in emphatic terms recognizes that slavery could be abolished in the States and in the places subject to the jurisdiction of the United States only by an amendment of the Constitution, and thus it implies that it could not have been done by an act of Congress. The sec- ond clause of the amendment gives to Congress the power to enforce this article by appropriate legislation. The mean- ing of this phrase is substantially the same as the words “necessary and proper” used in the legislative article," and the use of the word “appropriate” confirms the definition which was given to those words by Judge Story and affirmed in the Legal Tender Cases;” but as to the power given to Con- gress in this clause, reference may be had to what has been 1 Const. U. S., Art, I, Sec, 8, clause 18, 212 Wall, 573. 54 850 t CONSTITUTIONAL LAW. [$ 389. said in another place." It seems to have been thought by Congress that it justified the passage of the Civil Rights Act of March, 1875, which sought to secure the social and civil privileges of freedmen, but that law was held uncon- stitutional. In the Civil Rights Case” it was held that the amendment related only to the status of slavery and its in- cidents and to their abolition, and did not relate to race dis- crimination in inns, cars, places of amusement, etc. So much for the thirteenth amendment. The fourteenth amendment was ratified in 1868. It was proposed June 16, 1866. It was not adopted for some time, and the question arose whether three-fourths of the States, leaving out the States which seceded, would be sufficient to ratify the amendment. The Secretary of State held that it must be ratified by three-fourths of all the States, including those which had seceded, and this view prevailed. Before considering its clauses in detail it is pertinent to say that while it was under discussion in Congress the States which had seceded were excluded from the halls of Congress. The non-seceding States acted upon a clause which proposed as part of this amendment the following words: “Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States, equal protection in the right of life, liberty and property.” This was rejected. Had it been adopted it would have given Congress direct power to secure to citizens and persons the privileges and immunities and protection named in the amendment. The objection to it, when compared with the language of the amendment as ratified, is very striking and suggestive of the true meaning of the article adopted. That article, as we shall see, forbade the States to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, saying nothing of the citizens of each State in the several States. The amendment, as adopted, 1 Amte, $294, 2 109 U. S. 3, § 389.] LIMITATIONS ON POWERS OF STATES. 851 forbade the State to deprive any person of life, liberty or property, without due process of law, or to deny to any per- son within its jurisdiction the equal protection of the law. The fifth clause of the amendment adopted gave to Congress the power to enforce the non-abridgment by the State of privileges and immunities, etc. The above-named proposed amendment gave to Congress the power, by affirmative legis- lation, to do these things; while the amendment as adopted gave only to Congress the power to negative the action of the State abridging or denying these privileges. The first section of the fourteenth amendment is in these words: “All persons born or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privi- leges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The first sentence clearly refers to the decision in Scott v. Sanford." By that decision in 1857, the Supreme Court, two justices dissenting, held inter alia that Dred Scott, being a negro, was not a citizen of a State within the meaning of the clause which gave jurisdiction to the Federal courts in cases between citizens of different States. It is a part of the history of the times that this decision excited great opposition. The de- cision itself was never departed from by the Supreme Court, but, as a part of the policy of the non-slaveholding States, this provision of the amendment was intended to reverse the decision in that case, and to establish the right of citizen- ship of both races. It will be perceived that it gives citizen- ship to all persons born or naturalized in the United States and subject to the jurisdiction thereof.-citizenship of the United States and citizenship of the State wherein they re- side. This would give to the negro the status of citizenship in the State where he resided, and make him properly a party 119 How. 393. 852 CONSTITUTIONAL LAW. [$389. to a suit in the Federal court between himself and a citizen of another State; and furthermore would give to him, as such, all the privileges and immunities of citizens in the several States." Under this clause an Indian who belongs to a tribe and is born within the United States, the tribe being a de- pendent nation, is not born within the jurisdiction of the United States, and is not entitled to be a citizen under this clause, though he separates from his tribe and lives among the whites, unless he becomes naturalized.” This clause speaks of citizenship for the person, citizenship of the United States and citizenship of the State. The individual has rights as a citizen of the State, which, as a citizen of the United States, he does not have, and vice versa. It becomes very important, therefore, that these diverse citizenships should be well understood because of the following provis- ions. The next clause of this amendment is: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” What, then, are the immunities of men as citizens of the United States? In the case of Smith v. Turner,” Chief Justice Taney said: “For all the purposes for which the Federal government was established, we are one people and citizens of the United States.” Mr. Justice Miller, in delivering the opinion of the court in the Slaughter-House Cases, quoted the language of Judge Taney with approval, that the privileges and immu- nities of men as citizens of the United States were those “which owe their existence to the Federal government, its national character, its Constitution or its laws.” And so, in Crandall v. Wevada,” the court held that the right of free transit from State to State, or from any State to the seat of government or to the ports of the United States, were rights appertaining to the citizen as a citizen of the United States; and that all rights claimed under treaty, or on the high Seas, 1 Const, U. S., Art, IV, Sec. 2. 56 Wall. 36. See also United 2 Elk v. Wilkins, 112 U. S. 94. States v. Wong Kim Ark, 169 U. S. 37 HOW, 283, 649, 416 Wall, 74, § 389.] LIMITATIONS ON POWERS or STATES 853 or in foreign countries; rights under the Constitution and its amendments; the right to come to the capital or to any seaport; rights of commerce of any State with foreign coun- tries, are those rights which belong to men as citizens of the United States. These rights and privileges pertaining to him as a citizen of the United States, under the Consti- tution, laws and treaties, are properly placed beyond the power of a single State to abridge. But it has been decided that a State may abridge the privileges and immunities and rights which belong to the man as a citizen of the State. Thus the regulation of the business of the butchers in New Orleans was a regulation of a right pertaining to the citizen as a citizen of the State, not of the United States. Con- gress can take no action under this fifth section of the four- teenth amendment to protect a citizen in his rights as a citizen of a State. They are exclusively within the State power.” A citizen of this country, therefore, has two guard- ians; his privileges and immunities are doubled. Those which are secured under the Constitution and jurisdiction of the Federal government belong to him as a citizen of the United States. Those which are secured to him under the Constitution and laws of his State belong to him as a citizen of the State. It has been decided as a general principle that this clause of this amendment does not limit the police powers of the States, nor affect the State organism or its functions.” Thus, the privilege to practice law in the State court belongs to him under the citizenship of the State; in the United States court, as a citizen of the United States.” All limitations upon this privilege in the State courts were unaffected by this amendment.” So in respect to suffrage, which is exclusively under State jurisdiction, except as af- fected by the fifteenth amendment. The right of suffrage 1 Slaughter-House Cases, supra. U. S. 549; In re Kemmler, 136 id, 2 United States v. Harris, 106 U. S. 436, 629; Presser v. Illinois, 116 id. 252. 4 Barbier v. Connolly, 113 U. S. 8 United States v. Cruikshank, 92 27, 31. 5 Bradwell W. State, 16 Wall. 130. 854 CONSTITUTIONAL LAW. ' [$389. is a State privilege, belonging to State citizenship, and is exclusively under State jurisdiction. The United States can confer no such privilege within a State." So as to the right of a physician to practice his profession. That is a right qua, citizen of a State, which is not touched by this amend- ment.” And so, though a doubt was expressed in one case (Supervisors v. United States”), yet in Mugler v. Kansas “and in Eilenbecker v. District Court of Plymouth County" it was held that a State might forbid an owner to sell liquor or to manufacture it, and might destroy it as a nuisance, without compensation, and prohibit its uses; and that a proceeding On contempt for suppression of the traffic was valid without jury trial. So a greater penalty for fornication between African and white, than between persons of the same race, is Walid.” Such legislation by the State trenches upon no right or privilege of the guilty parties as citizens of the United States. So police regulations as to laundries, prohibiting the use of them at certain times and at certain places, are valid." So any denial of a right in a State court, which by any one of the ten amendments is forbidden, is not unconstitutional, for those amendments are limits upon Federal power only, and the State court may do, contrary to the terms of those amendments, what the Federal court is forbidden to do.” The next clause is more sweeping in its operations, for it drops the word “citizen” and uses the word “person.” “Nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This ap- plies to persons as such, and not to persons as citizens. It will be seen that this clause applies to persons and not 1 Minor v. Happersett, 21 Wall. 5 134 U. S. 31. 129; Crowley v. Christensen, 137 6 Pace v. Alabama, 106 U. S. 583. U. S. 86; Williams v. Mississippi, 7 Barbier v. Connolly, 113 U. S. 170 id. 213. 27; Soon Hing v. Crowley, Id. 703; *Dent v. West Virginia, 129 U. S. Holden v. Hanry, 168 id. 366. 114. 8 Walker v. Sauvinet, 92 U. S. 90; 318 Wall. 79. Spies v. Illinois, 123 id. 131. 4123 U. S. 623. § 389.] LIMITATIONS ON POWERS OF STATES. 855 citizens; i. e., persons, whether they be citizens or not citi- zens. In the case of Corfield v. Coryell, Judge Washington, in commenting mpon the words “privileges and immunities,” used in another article of the Constitution,” says: “The in- quiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent and sovereign. What these fundamental privi- leges are, it would perhaps be more tedious than difficult to enumerate. They may, however, be comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may prescribe for the general good of the whole.” This definition was adopted in the main in the case of Ward v. Maryland,” and in Paul v. Virginia.” The Su- preme Court in the Slaughter-Hºuse Cases" sanctioned this definition and added: “Its sole purpose was to declare to the several States that whatever those rights, as you grant or establish them to your own citizens, or as you limit or Qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” These fundamental privileges to which Judge Washington refers Would seem to include those named in the clause under con- sideration: the right to life, liberty and property, of which the person shall not be deprived without due process of law, and the right of every person within its jurisdiction to the equal protection of the laws. It would seem, therefore, to be a just construction of this article that every person, whether 1 4 Wash. C. C. 371. 312 Wall. 430. * Const. U. S., Art, IV, sec. 2, 48 Wall, 180. Clause 1. *16 Wall, 36, at pp. 76, 77. 856 CONSTITUTIONAL LAW. [$ 389. a citizen or not, and no matter where residing, is protected by this clause against any action by a State which will de- prive him of life, liberty or property without due process of law, or deny to any person the equal protection of the laws. ' If it be asked why the Constitution of the United States should intervene so as to limit the action of the State toward any person in the manner described in the article, the an- swer is clear. In the free intercommunication provided for between the States of the Union, a person resident in one State might often be subject to the operation of the laws of another where he was temporarily sojourning, and should have the protection of the Constitution of the Union against any hostility on the part of the State upon his rights and his privileges, and his equal right to the protection of its laws. As might be inferred from the rejection of the proposed amendment to this fourteenth article, it was not intended to give to Congress the power, by affirmative action, to afford this protection within the States, but simply to give to Con- gress the power to nullify any such hostile action by the State through its laws. A few cases bearing upon this clause of the Constitution, in addition to those already cited, may be referred to. In the Zaundry Cases, supra, municipal reg- ulations as to laundries, making no discrimination between persons, was held to be valid; but in the subsequent case of Yick Wo v. Hopkins,” where the municipal discrimination between Chinese and whites in the regulation of the laundry business, denying the Chinese the rights accorded to the whites, the law of the municipality was held to violate this second clause as to the equal protection of the laws to all persons; and where a State officer in the administration of the law deprived a person of this equal right, it was held to be the State that did it.” But where private parties, innkeepers, proprietors of places of amusement, etc., were denied these privileges, it was held that it was not the State that discriminated, but private 1 113 U. S. 27, 703. 3 Yick Wo v. Hopkins, 118 U. S. 2 118 U. S. 356. 356. § 389.] LIMITATIONS ON POWERS OF STATES 857 parties. The State does not deny—the private party does deny – equal privileges;" and it was decided that the Civil Tights Bill passed by Congress, giving to negroes equal privi- leges with white people, in such cases was unconstitutional and Void. In the late case of Mattoa, v. United States” the Supreme Court decided upon the construction of a clause in the sixth amendment requiring the accused to be confronted with the witnesses against him; and it was held that the stenographic notes of the evidence of a witness in living presence on the first trial could be used on the second trial. The court upon a review of the contradictory decisions in the States upon this question held that these amendments in favor of per- sonal liberty were to be interpreted “in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as secur- ing to every individual such as he already possessed as a Dritish subject, such as his ancestors had inherited and de- fended since the days of Magna Charta.” There was a strong dissent by three of the Judges. The effect of this clause upon railroad companies has been considered in several cases. In the case of Jèailroad Co. v. Mississippi,” where the law of the State required railroad Companies carrying passengers to provide equal but separate accommodations for the white and colored races, the Su- preme Court of the State held that the law applied only to the carrying of passengers within the State, and not to inter- state carriage. The Supreme Court adopted the construction which the State court had put upon its own law, and held that the law, limited to the carrying of passengers within the State only, was constitutional and valid. The court dif- ferentiated the case from the cases of Hall v. Decuir 4 and Jęailroad Co. v. Illinois,” in which cases the State law had undertaken to regulate the interstate carriage of passengers, 1 Civil Rights Cases, 109 U. S. 3. 4.95 U. S. 485. 2 156 U. S. 237. 5118 U. S. 557. 3 133 U. S. 587. See also Blake V. McClung, 172 id, 239, 858 CONSTITUTIONAL LAW. [$ 389. and in this respect differed from the case of Railroad Co. v. Mississippi, Supra. In the late case of Plessy v. Ferguson' it was decided that the law of Louisiana requiring railroad companies to provide equal but separate accommodations for the white and colored races on their trains, and providing that no person should be permitted to occupy seats in other coaches different from the seats assigned to them on account of the race to which they belong, and requiring the officers of the trains to assign each passenger to the coach designated for the race to which he belongs, and imposing fines or imprison- ment upon passengers insisting upon going into any other car than the One assigned to his race, and conferring upon the officers of the trains the power to refuse to carry pas- Sengers refusing to occupy coaches assigned to them, and exempting the companies from liability for such refusal, were not in conflict with the thirteenth or fourteenth amend- ments to the Constitution. But this was on the ground that the Louisiana law applied only to the transportation of pas- sengers within the State, and therefore did not conflict with the interstate commerce power of Congress. The court re- ferred to a large number of cases, and differentiated the case of Iðailroad Co. v. Brown,” where a railroad company, incor- porated by Congress, was granted a charter upon condition that no person should be excluded from the cars on account of color; and the court held that there was no right to ex- clude an African from any part of the train. The language of Justice Bradley, in the Civil Rights Case, was quoted in these words: “The fourteenth amendment does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws, . . . when these are subversive of the fundamental rights specified in the amendments. Positive rights and privileges are undoubtedly secured by the four- 1,163 U. S. 537. 217 Wall, 445. § 389.] LIMITATIONS ON POWERS OF STATES. 859 teenth amendment; but they are secured by way of prohibi- tion against State laws and State proceedings affecting those rights and privileges and by power given to Congress to legislate for the purpose of carrying such prohibition into effect.” This language of Justice Bradley confirms what has been already said as to the effect of the rejection in Con- gress of the proposed amendment to this fourteenth article. The court refers to a large number of cases in the States to the same effect. The court, in the last case of Plessy v. Fer- guson, supra, on page 551, combats the objection that this enforced separation stamps the colored race with the brand of inferiority, and holds that it does no such thing, but sim- ply recognizes that social prejudices cannot be overcome by legislation, and that equal rights are not to be secured to the negro by an enforced commingling of the races, and refers to the case of The People v. Gallier." º It has been attempted to construe the fourteenth amend- ment so as to deny to the State any violation of the equality of taxation, but the Supreme Court has held that the four- teenth amendment has fixed no iron rule for taxation. A municipality may tax adjacent owners for street improve- ments after due notice and hearing.” It may assess lands with a special tax for drainage of swamps, which affect the value of such lands.” The State may make water rates a charge upon property preferred to other liens.” The effect of this amendment upon the police power of the States was the subject of an able discussion in the case of Bar- bier v. Connolly.” Under an ordinance of San Francisco, the carrying on the laundry business was prohibited within cer- tain defined limits between certain hours. It did not discrimi- nate between classes of persons engaged in the business, as in the case of Yick Wo v. Hopkins, supra." The Supreme 193 N. Y. 438. 4 113 U. S. 506, 2 Barbier v. Connolly, 113 U. S. 27; 5 113 U. S. 27. Bell's Gap R. Co. v. Pennsylvania, 8 118 U. S. 856; Tinsley v. Ander- 134 id. 232. son, 171 id. 101. 8 Davidson v. New Orleans, 96 U. S. 97. 860 CONSTITUTIONAL LAW. [$ 389. Court held that this provision was a police regulation not in conflict with the fourteenth amendment. Mr. Justice IField said that this amendment in the clause under consider- ation “undoubtedly intended that there should be no arbi- trary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pur- suits by others under like circumstances; that no greater burdens should be laid upon One than are laid upon others in the same calling and condition; and that in the adminis- tration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.” But neither the amendment — broad and comprehensive as it is —nor any other amendment was de- signed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and pros- perity. This decision was followed in Soon Hºng v. Crowley, in which it was determined that a municipal ordinance ap- plying to the laundry business as to time and place — and to no other— was not embraced within the language of the amendment, because the two occupations were not of the same character, and different regulations were proper for these distinct employments. The operations of the law must not be different in respect to the same employment; if so, it would deny the equal protection of the laws to the two classes. The same general doctrine was applied to the ques- 1 113 U. S. 703. § 389.] LIMITATIONS ON POWERS OF STATES. 861 tion of taxation in the case of Railroad Co. v. Pennsylvania." In that case a tax was imposed upon the face value of bonds instead of upon their actual value, which was valid, as the State courts decided under State law. Mr. Justice Bradley said: “But, be this as it may, the law does not make any discrimination in this regard which the State is not compe- tent to make. All corporate securities are subject to the same regulation. The provision in the fourteenth amend- ment . . . was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable Ways. It may, if it chooses, exempt certain classes of prop- erty from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose dif- ferent specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax Secu- rities for payment of money; it may allow deductions for indebtedness or not allow them. All such regulations and those of like character, so long as they proceed within rea- sonable limits and general usage, are within the discretion of the State legislature, or the people of the State in fram- ing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our gov- ernments, might be obnoxious to the constitutional prohibi- tion. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject, that would include all classes. They must be de- cided as they arise. We think that we are safe in saying that the fourteenth amendment was not intended to compel the State to adopt an iron rule of equal taxation.” 1 134 U. S. 232. See cases cited, King v. United States, 99 id. 229; National Bank v. Commonwealth, Hagar V. Reclamation Dist. No. 1, 9 Wall, 353; Dollar Savings Bank 111 id. 701; Walston v. Nevin, 128 v. United States, 19 id. 227; David- id. 575. Also Smyth v. Ames, 169 id. son v. New Orleans, 96 U. S. 97; 466. 862 CONSTITUTIONAL LAW, [$389. Accordingly it was held that taxes may be unequal on different classes of persons or subjects without offending the terms of this, amendment. If the tax-payers are in like con- dition and subject to like conditions, or the subjects of taxa- tion are the same, the doctrine of equality may be invoked as controlling them, though this is not clearly established. but the amendment does not touch the power of a State to adopt its own system of taxation, however unequal it may be, if it does not operate unequally upon the same persons or subjects of taxation in precisely like conditions. Thus a State may assess lands for drainage of swamps which affect them." For the same reason a tax upon an adjacent owner for opening streets, after due notice and hearing, would be upheld as not contrary to the provisions of this amend- ment. Thus, in Provident Institution v. Mayor,” it was held that an act making water rents and charges upon lands in a municipality a lien prior to all incumbrances in the same manner as taxes was no violation of the fourteenth amendment. It declares that no State shall deprive any person of property without due process of law, and the court declared they were not prepared to say the giving to such lien priority over liens already created by mortgage or otherwise would be repugnant to this article. Cases have arisen on the procedure in the States to condemn private property for public use. Thus, in the case of Railroad Co. v. Jowa,” the question arose whether the right of a party could be affected by mandamus in a State court where there was a denial of the right of trial by jury, and whether there was due process of law in denying a jury trial. The court decided that this did not offend against the provisions of the fourteenth amend- ment. The court said: “It is clear that the fourteenth amendment in no way undertakes to control the power of the State to determine by what process legal rights may be asserted or legal objections enforced, provided the methods 1 Davidson v. New Orleans, 96 U. 2113 U. S. 506. S. 97. 3160 U. S. 389. § 389.] LIMITATIONS ON POWERS OF STATES 863 of procedure give reasonable notice and fair opportunity to be heard before the issues are decided.” In a later case of JEldridge v. Trezevant, the Constitution and laws of Louisiana, as interpreted by its highest court, permit the taking, without compensation, of the land of private parties for the construc- tion of the public levee on the Mississippi river. The court held that this provision of statute law did not offend against the provision of the fourteenth amendment, unless in its ad- ministration a measure of justice was accorded to a citizen of another State different from that accorded to a citizen of Louisiana, and that the provisions of the fourteenth amend- ment do not apply to and override public rights existing in the form of servitudes or easements which are held by the courts of a State to be valid under its Constitution and laws.” An interesting class of cases arise in respect to corpora- tions under this amendment. We have seen that a corpora- tion is held to be a citizen within the meaning of the clause conferring jurisdiction on the United States courts in cases between citizens of different States; * and that this is because a corporation, though a legal entity, distinct from its corpo- rators, represented the interests of the individual corporators as to property and rights, and that the body of corporators, if members of the partnership, would be entitled to sue and be sued in the United States courts if citizens of the different State from that of the other party, plaintiff, or defendant. The meaning of the Constitution was carried out by consid- ering the corporate entity representing these shareholders as citizens of the State which chartered it. A corporation, whether municipal, joint-stock or eleemosynary, is the rep- resentative of the private interests and rights of persons. To touch the corporate right or interest by hostile legisla- tion is to touch the private interest of the persons interested in the corporation. It was therefore just and proper that the court should hold that this clause of the fourteenth 1160 U. S. 452. * Const. U. S., Art, III, sec. 2, *Barney v. Keokuk, 94 U. S. 324; clause 1. Packer v. Bird, 137 id, 661. 864 CONSTITUTIONAL LAW. [$389. amendment should apply as well to corporations as to indi- vidual persons." But when the question of equality of burden upon the property of the corporation and the property of an indi- vidual arises, it is proper to take into view that the corpo- ration and the individual do not stand upon the same plane as to their rights. The corporate rights are special privi- leges conferred by a charter—privileges which do not ap- pertain to the individual. There may, therefore, be reason and justice, in Order to attain an absolute equality of bur- dens between a corporation and an individual, to take into consideration the special privileges conferred upon the one and denied to the other. A tax on a telegraph line running through different States, in the proportion which so much of the line as is within any State bears to its whole line, was held to be constitutional in the case of Telegraph Co. v. Massa- chusetts.” The tax on corporations has in many cases been assessed differently from taxes upon the individual. In Home Ins. Co. v. Wew York” a state tax upon all corporate franchises of corporations in the State, or created in another State and doing business in the State, was measured by the dividends of the corporation in the current year, and was held to be constitutional. The court, referring to a number of cases, said: “But the amendment does not prevent the classifica- tion of property for taxation, subjecting one kind of prop- erty to one rate of taxation, and another kind of property to a different rate — distinguishing between licenses, fran- chises and privileges, and visible and tangible property, and between real and personal property. Nor does the amend- ment prohibit special legislation. Indeed, the greater part 1 Santa Clara County v. Railroad v. Gibbs, 142 id. 336; Maine v. Rail- Co., 118 U. S. 394; Silver Co. v. road Co., 142 id. 217; Columbus Pennsylvania, 125 id. 181. Southern Ry. Co. v. Wright, 151 *125 U. S. 530. See also Butler v. id. 470; New York v. Squire, 145 id. Eaton, 141 U. S. 240; Railroad Tax 175. Cases, 92 id. 575; Railroad Co. v. 3 134 U. S. 594, Backus, 154 id, 438; Railroad Co. § 389.] LIMITATIONS ON POWERS OF STATES. 865 of all legislation is special, either in the extent to which it operates or the objects sought to be obtained by it. And when such legislation applies to artificial bodies, it is not open to objection, if all such bodies are treated alike under similar circumstances and conditions, in respect to the privi- leges conferred upon them and the liabilities to which they are subjected. Under the statute of New York all corpo- rations, joint-stock companies and associations of the same kind are subjected to the same tax. There is the same rule applicable to all under the same conditions in determining the rate of taxation. There is no discrimination in favor of one against another of the same class." In this decision the court referred to the reason above suggested for the differ- ence between the tax laid upon an individual and upon a cor- poration, arising from the fact that one has artificial rights and privileges conferred by law which the other has not.” In Railroad Co. v. Gibbs" the court held that a law of South Carolina requiring the expenses of a State railroad commis- sion to be borne by the several corporations owning or operating railroads in the several States was not in conflict with this amendment. The burden was laid for services connected with the railroad corporations which were to bear them. There was no inequality, therefore, in subjecting these corporations to, and exempting others from, the burden. The case of Wew York v. Squire” is in accordance with the former decision. In Railroad Commission Cases” it was de- cided that a charter which grants a railway company the right to fix, regulate and receive the tolls and charges to be received by them for transportation, and which confers upon the directors the power to make by-laws, rules and regulations touching the disposition and management of the l Society for Savings v. Coite, 6 2 Wiggins Ferry Co. v. Railway Wall. 534; Barbier v. Connolly, 113 Co., 142 U. S. 399; New York v. U. S. 29; Soon Hing v. Crowley, Squire, 145 id. 175. Id. 703; Mo. Pac. Ry. Co. v. Humes, 3.142 U. S. 386, 115 id. 512; Mo, Pac. Ry. Co. v. 4145 U. S. 175. Mackey, 127 id. 205; Minneapolis 5116 U. S. 307. Ry. Co. v. Beckwith, 129 id. 26. 55 866 CONSTITUTIONAL LAW. [$ 389. company's property, and all matters appertaining to its con- cerns, does not deprive the State of its power to act upon the reasonableness of the charges and tolls so fixed, nor to: regulate by a commission charged with the duty of prevent- ing unreasonable rates, and of enforcing reasonable police regulations for the comfort, etc., of travelers. Such power in the State is not offensive to the fourteenth amendment. It belongs to the State to regulate these matters, under what is known as the police power, and this prerogative can- not be granted away, unless by words of positive grant or words equivalent in law." This case was followed by Stone w. Railroad Co.” So the reasonable regulation by the State of railroad rates, according to long and short haul, is not contrary to this amend- ment, but if so unreasonable as to violate property rights of the company, such rates may be held void as denying the equal protection of the laws.” But when a commission is appointed to decide finally as to these things and denies the right of ju- dicial inquiry into the propriety of the action of the commis- sion which is investigating these matters, and denies the right to produce evidence in response to a mandamus against the company, it was held not to be due process of law and the denial of the equal protection of the laws.” But to regu- late public carriers for the safety of persons and property is a police power of the State of great importance, and it will not be presumed that it is surrendered if all are put on equal ground. If all in like condition are regulated alike, this amendment will not be violated;" and in Railroad Co. v. 1 Citing Charles River Bridge v. keag Mfg. Co., 113 id. 21; Soon Hing Warren Bridge Co., 11 Pet. 419; v. Crowley, Id. 703; Mo. Pac. Ry. Delaware Railroad Tax Cases, 18 Co. v. Humes, 115 id. 512. Wall. 206; Bailey v. Magwire, 22 4 Head v. Amoskeag Mfg. Co., 113 id. 215; Fertilizing Co. v. Hyde Park, U. S. 21; Soon Hing v. Crowley, Id. 97 U. S. 659; Newton v. Commis- 703; Mo. Pac. Ry. Co. v. Humes, sioners, 100 id. 548, 115 id, 512. 2 116 U. S. 347. 5 Railroad Co. v. Mackey, 127 U. 8 Chicago, etc. Ry. Co. v. Minne- S. 205. sota, 134 U. S. 418; Head v. Amos- § 389.] LIMITATIONS ON POWERS OF STATES. 867 Mackey, a law of the State of Kansas providing that every railroad company organized or doing business in that State shall be liable for all damages done to any employee, con- sequent upon the negligence of its agents, engineers or other employees, was held not to deprive a railroad of property without due process of law, nor the equal protection of the laws, and was not in conflict with the fourteenth amend- ment. The court said that the special character of the leg- islation did not make it violative of the fourteenth amend- ment; that the improvement of cities, the opening of streets, the introduction of water and gas, for the safety and con- venience of their inmates, and laws for irrigation and drain- age, and for the construction of levees and so on, were of like kind and were valid; “and when legislation applies to particular bodies or associations, imposing on them addi- tional liabilities, it is not open to the objection that it de- nies to them the equal protection of its laws, if all persons brought under its influence are treated alike under the same conditions; but it seems that where the charter of the com- pany protects it in express and clear terms against this in- terference, such legislation by a state will be invalid, as impairing the obligation of contracts." In all these cases it was held that the railroad company takes its charter subject to the general police power of the State to regulate the rates of charge, and the general management of the railway, look- ing to the safety and welfare of its people, and that this general power of the State will be constitutionally exercised, unless a charter exemption from future general legislation is granted expressly or by clear implication.” It has not been decided in any of these cases that the State may not bind itself by contract not to regulate the charges of a railroad company. In the Lake Front Cases,” the Supreme Court held that the 1 Railroad Co. v. Iowa, 94 U. S. id. 418; Railroad Co. v. Wellman, 155. 143 id. 339; Railroad Co. v. Bristol, 2 Railroad Co. v. Miller, 132 U. S. 151 id. 556. 75; Railroad Co. v. Minnesota, 184 3 146 U. S. 887. 868 CONSTITUTIONAL LAW. [$ 390. -- State had not the power to alienate to a railroad company the public use of Lake Michigan and its bed, that the con- tract of the State was ultra vires, and that the repeal of the law alienating the public use of the lake did not impair a contract, for it was not valid as such. A law of the State of Iowa giving double damages against a railroad for cattle killed by it is not contrary to this four- teenth amendment." Nor does this amendment, which in- hibits the State from depriving a person of property without due process of law, apply where there is no right of property as to the thing legislated upon.” § 390. What, then, is “due process of law” referred to in this section of the amendment? Whatever in the regular administration of law in a State is general and impartial in its operation on all persons is “due process.” An indict- ment which is defective in form, though not in substance or in the requirements of the sixth amendment, is within the meaning of “due process; ” “but it must, with reasonable cer- tainty, apprise the defendant of the nature of the crime with which he is charged." Nor is a person denied “due process of law'” who is tried and sentenced by a de facto judge of a de jure court.” So trial, without a jury, for breach of a municipal regulation, does not contravene this section." The statute of limitations fairly operating on the remedy is not repugnant to this clause nor to the one forbidding a State to pass any law impairing the obligation of contracts.” And so a law which converts a defendant's appearance in 1Minneapolis Ry. Co. v. Beckwith, 4 Caldwell v. Texas, 137 U.S. 692; 129 U. S. 26. Leeper v. Texas, 139 id. 462. 2 New Orleans v. New Orleans 5 Rosen v. United States, 161 U. S. Water Works Co., 142 U. S. 79; 29. Williamson v. New Jersey, 130 id. 6 In re Manning, 139 U. S. 504. 189; Essex Public Road Board v. 7 Natal v. Louisiana, 139 U. S. 621; Skinkle, 140 id. 334; Com’rs of Lara- Murray's Lessee et al. v. Hoboken mie County v. Com’rs of Albany Land & Improvement Co., 18 How. County, 92 U. S. 307. 272. See also Holden v. Hardy, 169 8 Walker v. Sauvinet, 92 U. S. 90; U. S. 366. Caldwell v. Texas, 137 id, 692. 8 Wheeler v. Jackson, 137 U. S. 245. § 390.] LIMITATIONS ON POWERS OF STATES. 869 court for the purpose of contesting the jurisdiction of the court, and for that purpose alone, into a general appearance for all the purposes of the suit, does not deny to him “due process of law; ”’ and a statute of a State has been upheld which provided that “not more than two new trials shall be granted to any party in any action at law,”* as also a stat- ute which allowed the State a larger number of peremptory challenges in certain cities, in the organization of juries, than in the counties at large.” In the case of Louisiana v. Mayor of Wew Orleans “it was held that the State could take away from a municipal corporation the power of levying a tax to pay a judgment against itself, and by such prohibition the owner of the judgment was not deprived of his property without “due process of law.” If a State, through its laws, provides “due process,” and does not deny “equal protec- tion,” etc., and the State court departs from these statutory provisions by an erroneous decision, there is no relief. The State has not failed to provide “due process,” etc., but its court has, against its legal provisions.” In the case of Yick Wo v. Hopkins, Sheriff," an ordinance of the city of San Fran- cisco wested in the board of supervisors the arbitrary power, without restraint, to give or refuse consent to carry on pub- lic laundries, without regard to the competency of persons applying therefor. It was held that the ordinance violated the provisions of the fourteenth amendment by making ar- bitrary and unjust discriminations. This case is differentiated from Arrowsmith v. Harmoning, supra. In the former, arbi- trary discretion is given the board of supervisors to defeat personal right. In the latter, judicial power, by its decision, puts aside the legislative enactment which the State had pro- vided for all alike. Many cases have arisen under this amend- 1 York V, Texas, 137 U. S. 15. 4 109 U. S. 285. * Louisville, etc. R. Co. v. Wood- 5 Arrowsmith v. Harmoning, 118 son, 134 U. S. 614, U. S. 194; Davis v. Texas, 139 id, 3 Hayes v. Missouri, 120 U. S. 68, 651. See also Cross v. North Carolina, 6 118 U. S. 356. 132 id. 131; Missouri v. Lewis, 101 id, 22. 870 CONSTITUTIONAL LATW. [$ 390. ment, deciding what is “due process” in the exercise of “eminent domain.” The taking of private property for pub- lic use only, on just compensation, is in accordance with Magna Carta. To determine the question whether it is taken for real public use, and what is just compensation therefor, requires “due process of law.” Such a taking is an enforced sale to the public of private property, and therefore to take private property for private use or for public use without just compensation is not “due process of law.” The same rule of construction given to the fifth amendment in its ap- plication to the Federal government applies with equal force to the States in this clause of the fourteenth amendment.” In Virginia the owner must be fully compensated for the property taken and also damages to the residue of his land beyond the peculiar benefits.” The compensation to which the owner may be entitled must be provided for by judicial procedure in order to meet the requirement of “due process of law.”* The interruption of the use of property without its actual seizure,” as also riparian rights,” and the right to the use of water, are within this clause. This right exists in the government of the United States for the purpose of exer- cising the powers conferred in the Constitution;' but what should be the limitations of the exercise of such power within the States has been the subject of much controversy. The destruction of property may be ground for payment, but if destroyed to prevent the spread of fire, either by pub- 1 James River & Kanawha Co. v. Turner, 9 Leigh, 313; Bloodgood v. Mohawk, etc. R. R. Co., 18 Wend. (N. Y.) 9; Tyler v. Beacher, 44 Vt. 648; Monongahela Nav. Co. v. United States, 148 U. S. 312; Loan Ass’n v. Topeka, 20 Wall 655; Missouri Pa- cific Ry. Co. v. Nebraska, 164 U. S. 403. * Cole v. La Grange, 113 U. S. 1. *Mitchell v. Thornton, 21 Gratt, 164, *United Statee v. Jones, 109 U. S. 513; Cherokee Nation v. Southern Kansas Ry. Co., 135 id. 641; Boom Co. v. Patterson, 98 id. 403. * Pumpelly v. Green Bay Co., 13 "Wall. 166. * Kaukauna Co. v. Green Bay, etc. Canal, 142 U. S. 255. 7 Kohl v. United States, 91 U. S. 367; United States v. Gettysburg Electric R. Co., 160 id. 668; Luxton v. North River Bridge Co., 147 id. 337. § 390.] LIMITATIONS ON POWERS OF STATES 871 lic authority or private persons, it creates no liability under the clause. In such cases fire is a common enemy; — if the enemy has possession of A's house, from which B and C may be assailed, the fortress may be destroyed." In criminal procedure this constitutional right has been frequently invoked. In Hurtado’s Case” the Constitution of California authorizing prosecutions for felonies on informa- tion rather than indictment, and the statutes passed in pur- suance thereof, were upheld as not denying “due process of law” to the prisoner. The rule would be different in a court of the United States under the fifth amendment. A law passed after a crime is committed cannot add solitary confinement until execution to the death penalty,+it is ea. post facto; * but if after the commission of the offense the law is changed in immaterial respects, this is not ea post facto nor against the provision for “due process of law; ”* and so where the law before the commission of the crime made solitary confinement until execution a part of the penalty, the law was held not to be against the eighth amendment, nor the right to “due process of law,” provided in the fourteenth amendment." Nor will mere irregularity in the State procedure, not involving the essential rights of the prisoner, be construed as contrary to “due process of law; ”* nor will the due administration of its laws by the State be interfered with." At the time of the decision of Strauder's Case,” he being a negro, the laws of West Virginia, in effect, provided that no negro should sit on a jury. On the part of the prisoner it was urged that such laws denied to him “the equal protec- 1 Beach v. Trudgain, 2 Gratt. 219; 4 Holden v. Minnesota, 137 U. S. American Print Works v. Law- 483. rence, 3 Zabr. 603; Jones v. City of 5 McElvaine v. Brush, 142 U. S. Richmond, 18 Gratt. 517. But see 155. | Wallace v. City of Richmond, 94 6 Cross v. North Carolina, 132 U.S. Va., 204. 131. 2 110 U. S. 516; Hodgson v. Ver- 7 In re Wood, 140 U. S. 278–284. mont, 168 id. 262. 8100 U. S. 303. 8 Medley's Case, 134 U. S. 160. 872 CONSTITUTIONAL LAW. [$ 390, tion of the laws” as well as “due process of law'” secured to him by the fourteenth amendment. He was convicted, and on appeal the court of appeals of the State affirmed the decision of the lower court; but on appeal to the Supreme Court of the United States, under the twenty-fifth section of the Judiciary Act of 1789, the judgment was reversed and the original objection sustained. About the same time a similar case" arose in Virginia; the law of Virginia did not exclude negroes from the juries. In this case the prisoner, a negro, moved the court to so modify the venire that one- third or some portion of the jury should be composed of negroes. This motion was refused. On petition for removal, under section 641 of the Revised Statutes, the district judge of the United States ordered the case to be docketed in the circuit court of the United States, after refusal to remove had been made by the State court, and under a writ of habeas corpus cum causa took the prisoner out of the custody of the State. Virginia applied for a mandamus to compel Judge Rives, the district judge of the United States for the western district of Virginia, to remand the cause to the State court and deliver up the prisoner to her custody. The man- damus was granted, because there was no ground for re- moval, since the Virginia law did not exclude negroes from the jury, though the composition of the jury might be only white men. The law, therefore, did not deny equal protec- tion, etc., and the prisoner had no right to demand that negroes should be summoned on the venire, as the fourteenth amendment only required that the State, through its laws, must not exclude them; but if the legislature or courts or executive of the State prevents a jury from being constituted of both races, then the State denies the equal protection of its laws to all its citizens alike, and the case, on petition, under section 641 above mentioned, must be removed, or if not, on conviction, an appeal to the Supreme Court will lie. In Eº parte Virginia,” Judge Coles, the judge of a county court in the State of Virginia, was indicted in the district, 1 Virginia v. Rives, 100 U. S. 313, 2 100 U. S. 339. § 390.] LIMITATIONS ON POWERS OF STATES. 873 court of the United States for the western district of Vir- ginia, under the act of 1875, for excluding and failing to summon negroes on the grand and petit juries because they were negroes. He was held liable, for he acted for the State, and his action was in effect that of the State in denying the equal protection of its laws, etc. Judges Field and Clifford dissented in strong opinions. In Weal. v. Delaware," as the laws of the State of Delaware contained no prohibition against negroes sitting as jurors, on indictment in the State court, the petition of the prisoner (a negro) for removal of the cause under section 641 of the Revised Statutes of the United States to the circuit court of the United States was properly denied, but as the jury commissioners excluded negroes from the juries because of race, the Supreme Court held that the indictment should have been quashed, and the State court having refused to do so an appeal was properly had to the Supreme Court.” In this case the court followed the decision in Ee parte Virginia, supra. These decisions have been re-affirmed in the late case of Chicago, B. dº Q. R. Co. v. Chicago,” but they have not been accepted without crit- icism by high authority in some quarters. They are largely based on the dissenting opinions of Judges Clifford and Field in Æe parte Virginia, Supra, and the objections may be stated as follows: 1st. To remove a criminal case from a State court to a Pederal court is neither necessary nor proper.” For if the State court decides against a right secured under the Consti- tution or laws of the United States, an appeal lies to the Supreme Court under the twenty-fifth section of the Judi- ciary Act. The removal, therefore, is not necessary for the protection of such right. Nor is it proper (“bona fide ap- propriate, etc.”); for with what propriety cana United States court try a prosecution set on foot by the State under her criminal laws, and for an Offense against her laws? Under 1 103 U. S. 370. 3166 U. S. 226. *See also Bush v. Kentucky, 107 * Const. U. S., Art. I, Sec. 8, clause TJ. S. 110; In re Ward, 140 id, 278– 18. 370, 874 CONSTITUTIONAL LAW. [$ 390. what law will the jury be selected ? challenges made 2 ap- peals allowed ? and in case of conviction who may pardon 2 the President of the United States or the Governor of the State 2 2d. The amendment protects rights, but does not grant political power. If rights be not equal because power is not (as was argued), the negro must, not may, be on every jury to try negro or white; and so if the exclusion of the negro from a jury is the denial of equal protection, is not his exclu- sion from the office of judge, member of the legislature or executive the same? Must the State make the negro eligi- ble to all of these in order to equality? If not, why as to juries? 3d. If a like constitution of juries for both races be not equality, how is it to be attained ? Must all the jury for a white man be white? and for a negro all be negroes? Or how many ? and if they must not (as the court admits), how is practical equality reached by a “May?” and if such consti- tution of the jury be essential to equality, how shall a male jury try a female? or adults try an infant? Or an American citizen a Chinaman? Equality to persons is secured by the amendment. How then as to a corporation ? It cannot serve on a jury. - 4th. When the fourteenth amendment was adopted, th negro had no right to vote, and, until adopted, no right to hold office, if denied by the States. It may well be asked what “equal protection ” could he have, with no vote in making the laws? Yet with no such power, with absolute disfranchisement, the fourteenth amendment assumed that “equal protection ” to the negro might be secured without any political power; for if not denied by the refusal of suf- frage, how could it be so denied by excluding him from the court and jury? When the fifteenth amendment was adopted, it secured to him suffrage, but nothing else. 5th. These decisions, it is claimed, make the negro a fa- vored class. Foreigners, women and children, non-freehold- ers, etc., may be tried and have no peer on the jury, but a negro cannot be. APPENDIX. June 15th, A. D. 1215. MAGNA CARTA. 9. Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris suffi- ciunt ad debitum reddendum; nec pleggii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solu- tionem debiti; et si capitalis debitor defecerit in solutione debiti, non habens unde solvat, pleggii respondeant de deb- ito; et, si voluerint, habeant terras et redditus debitoris donec sit eis satisfactum de debito quod ante pro eo solver- int, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem pleggios. 12. Nullum scutagium velauxilium ponatur in regno nos- tro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum mili- tem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad haec non fiat nisi rationabile auxilium: simili modo fiat de auxiliis de civitate Londoniarum. 13. Et civitas Londoniarum habeat omnes antiquas liber- tates et liberas consuetudines suas, tam per terras, quam per aquas. Praeterea volumus et concedimus quod omnes aliae civitates, et burgi, et villae, et portus, habeant omnes libertates et liberas consuetudines suas. 14. Et ad habendum commune consilium regni, de auxilio assidendo aliter quan in tribus casibus praedictis, vel de 876 APPENDIX. scutagio assidendo, summoneri faciemus archiepiscopos, epis- copos, abbates, comites, et majores barones, sigillatim per litteras nostras; et praeterea faciemus summoneri in gener- ali, per vicecomites et ballivos nostros, Omnes illos qui de nobis tenent in capite; ad certum diem, scilicet ad terminum qüadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonitionis causam summomitionis exprimemus; et sic facta summonitione negotium ad diem assignatum procedat secundum consilium illorum qui prae- sentes fuerint, quamvis non omnes summoniti venerint. » C. C. Q. C û « © � Θ � O ç 17. Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo. ; « > () � � � © O. © O C () � «… 20. Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemen to suo; et mercator eodem modo salva mercandisa sua; et villanus eodem modo amercietur salvo Wainmagio suo, si inciderint in misericordiam nostram; et nulla, praedictarum misericor- diarum ponatur, nisi per sacramentum proborum hominum de visneto. • • • • © © © © © © © © • 28. Nullus constabularius, vel alius ballivus noster, capiat; Blada, vel alia catalla alicujus, nisi statim inde reddat dena- rios, aut respectum inde habere possit de voluntate venditoris. 30. Nullus vicecomes, vel ballivus noster, vel aliquis alius, capiat equos vel caretas alicujus liberi hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis. 31. Nec nos nec ballivi nostri capiemus alienum boscum. ad castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit. • © � o « » • T » � (O � C. ę Q» 39. Nullus liber homo capiatur, vel imprisonetur, aut dis- saisiatur, aut utlagetur, aut exuletur, aut aliquo modo des- IMAGNA CA RTA, 877 truatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae. 40. Nulli vendemus, mulli negabimus, aut differemus, rec- tum aut justiciam. 61. . . . Et mos nihil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et lib- ertatum revocetur vel minuatur; et, si aliquid tale impetra- tum fuerit, irritum sit et inane et numquam eo utemur per nos nec per alium. •*•v- £. * • ę ç c_» C. � ¢ * � O C. (… � () * 63. Quare volumus et firmiter praecipimus quod Anglicana ecclesia libera sit et quod homines in regno nostro habeant; et teneant omnes praefatas libertates, jura, et concessiones, bene et in pace, libere et quiete, plene et integre, sibi et haeredibus suis, de nobis et haeredibus nostris, in omnibus rebus et locis, in perpetuum, secut praedictum est. Juratum est autem tam ex parte nostra, quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observa- l)untur. Testibus supradictis et multis aliis. Data per manum nostram in prato quod vocatur Runingmede, inter Windele- sorum et Stanes, quinto decimo die Junii, anno regni nostri septimo decimo. Stubbs' “Select Charters,” pp. 296—306. 878 APPENDIX. A. D. 1628. FETITION OF RIGHT. 3 Car. I., C. i. The petition exhibited to his Majesty by the Lords Spirit- ual and Temporal, and Commons, in this present Parliament. assembled, concerning divers Rights and Liberties of the sub- jects, with the King's Majesty's royal answer thereunto in full Parliament. To the King's Most Excellent Majesty: “Humbly show unto our Sovereign Lord the King, the Lords Spiritual and Temporal, and Commons in Parliament assembled, etc., etc.” After reciting the Statute De Tallagio non Concedendo, and several others in the reign of Edward III,_and that the people had been compelled to lend money to the King, and reciting the Magna Carta, chapter 39,- and its violation in many cases, and reciting that soldiers had been quartered on the people without their consent, and that martial law had been, by commissioners of his Majesty, enforced so as to adjudge to death subjects not in the army, the Petition closes thus: “X. They do therefore humbly pray your most excel- lent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined or otherwise molested or dis- quieted concerning the same or for refusal thereof; and that no free-man, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no. PETITION OF RIGHT. 879 commissions of like nature may issue forth to any person or persons whatever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land. “XI. All which they most humbly pray of your most ex- cellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings and pro- ceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you ac- cording to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this king- dom. “Qua quºdem petitione lecta et plenius intellecta per dictum, dominum regem taliter est responsum in pleno parliamento, viz. Soit droit fait come est desiré.” (Statutes of the Realm, v. 24, 35.) Stubbs’ “Select Charters,” pp. 515, 517. 880 * APPENDIX. A. TX. 1689. BILL OF RIGHTS. I Will. & Mar., Sess. 2, c. 2. Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully, fully, and freely repre- senting all the estates of the people of this realm, did, upon the thirteenth day of February, in the year of our Lord one thousand six hundred and eighty-eight, present unto their majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain declaration in Writ- ing, made by the said Lords and Commons, in the words following, viz.: Whereas the late King James II, by the assistance of diverse evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom: 1. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament. 2. By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the same assumed power. 3. By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes. 4. By levying money for and to the use of the Crown, by pretence of prerogative, for other time, and in other manner than the same was granted by Parliament. 5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law. * 6. By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law. PILL OF RIGHTS. 881 7. By violating the freedom of election of members to serve in Parliament. 8. By prosecutions in the Court of King's Bench, for mat- ters and causes cognizable only in Parliament; and by di- verse other arbitrary and illegal courses. 9. And whereas of late years, partial, corrupt, and un- qualified persons have been returned and served on juries in trials, and particularly diverse jurors in trials for high trea- son, which were not freeholders. 10. And excessive bail hath been required of persons com- mitted in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. 11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. 12. And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied. All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm. And whereas the said late King James II, having abdi- cated the government, and the throne being thereby vacant, his Highness, the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of deliver- ing this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and diverse principal persons of the Commons) cause letters to be writ- ten to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons as represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty and eight, in order to such an establishment, as that their religion, laws and liberties might not again be in dan- ger of being subverted; upon which letters, elections have been accordingly made. And thereupon the said Lords Spiritual and Temporal, 56 882 APPENDIX. and Commons, pursuant to their respective letters and elec- tions, being now assembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done), for the windicating and asserting their ancient rights and , liberties, declare:— s 1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been as- sumed and exercised of late, is illegal. 3. That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other com- missions and courts of like nature, are illegal and pernicious. 4. That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal. 6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. 7. That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law. 8. That election of members of parliament ought to be free. 9. That the freedom of speech, and debates on proceed- ings in parliament, ought not to be impeached or questioned in any court or place out of parliament. 10. That excessive bail ought not to be required, nor ex- cessive fines imposed; nor cruel and unusual punishments inflicted. PILL OF RIGHTS. 883 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason Ought to be freeholders. 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, par- liament ought to be held frequently. And they do claim, demand, and insist upon all and singu- lar the premises, as their undoubted rights and liberties; and that no declarations, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example. To which demand of their rights they are particularly en- couraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said High- ness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and lib- erties: II. The said Lords Spiritual and Temporal, and Commons, assembled at Westminster, do resolve, that William and Mary, Prince and Princess of Orange, be, and be declared, Ring and Queen of England, France and Ireland, and the dominions thereunto belonging, to hold the Crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said kingdoms and domin- ions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess Anne of Denmark, 384 APPENDIX. and the heirs of her body; and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess to accept the same accordingly. © º © o © © Ç © IV. Upon which their said Majesties did accept the Crown and royal dignity of the kingdoms of England, France, and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration. W. And thereupon their Majesties were pleased, that the said Lords Spiritual and Temporal, and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties’ royal concurrence make effectual provision for the settlement of the religion, laws, and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted; to which the said Lords spiritual and Temporal, and Commons, did agree and proceed to act accordingly. VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in parliament assem- bled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the partic- ulars aforesaid shall be firmly and strictly holden and ob- served, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majes- ties and their successors according to the same in all times to come. VII. And the said Lords Spiritual and Temporal, and Com- mons, seriously considering how it hath pleased Almighty BILL OF RIGHTS. SS5 God, in his marvellous providence, and merciful goodness to this nation, to provide and preserve their said Majesties’ royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto Him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly, and in the sincerity of their hearts, think, and do hereby recognize, acknowledge, and declare, that King James II having abdicated the government, and their Majesties having accepted the Crown and royal dignity aforesaid, their said Majesties did become, were, are, and of right ought to be, by the laws of this realm, our sovereign liege Lord and Lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, in and to whose princely persons the royal State, Crown, and dig- nity of the same realms, with all honours, styles, titles, re- galities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining, are most fully, right- fully, and entirely invested and incorporated, united, and annexed.” Chapter VIII declares the succession to William and Mary, and to the survivor of them for the life of such survivor, then to the heirs of the body of her Majesty, and in default thereof, to Princess Anne of Denmark. Chapters IX and X exclude Papists from the throne, and require every person, who succeeds to the Crown, to take a. coronation oath abjuring Papacy, and declaring in all and every such case or cases, “the people of these realms shall be and are hereby absolved of their allegiance; ” and that the next in succession shall inherit the Crown, as if the Papist successor were naturally dead. “XI. All which their Majesties are contented and pleased shall be declared, enacted, and established by authority of this present parliament, and shall stand, remain, and be the law of this realm forever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in parliament as- sembled, and by the authority of the same, declared, enacted, or established accordingly.” 386 - APPENDIX. MISCELLANEOUS RESOLUTIONS. Friday, October 14, 1774. “The Congress met according to adjournment, and resum- ing the consideration of the subject under debate—made the following declaration and resolves: Whereas, since the close of the last war, the British par- liament, claiming a power, of right, to bind the people of America by statutes in all cases whatsoever, hath, in some acts, expressly imposed taxes on them, and in others, under various pretences, but in fact for the purpose of raising a revenue, hath imposed rates and duties payable in these colonies, established a board of commissioners, with uncon- stitutional powers, and extended the jurisdiction of courts of admiralty, not only for collecting the said duties, but for the trial of causes merely arising within the body of a county. And whereas, in consequence of other statutes, judges, who before held only estates at will in their offices, have been made dependant on the crown alone for their salaries, and standing armies kept in times of peace: And whereas, it has lately been resolved in parliament, that by force of a stat- ute, made in the thirty-fifth year of the reign of king Henry the eighth, colonists may be transported to England, and tried there upon accusations for treason, and misprisions, or concealments of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned: And whereas, in the last session of parliament, three stat- utes were made; one entitled, “An act to discontinue, in such manner and for such time as are therein mentioned, the land- ing and discharging, lading, or shipping of goods, wares, and merchandize, at the town, and within the harbour of Boston, in the province of Massachusetts-Bay in North-America; ” another entitled, “An act for the better regulating the gov- ernment of the province of Massachusetts-Bay in New Eng- land; ” and another entitled, “An act for the impartial JMISCELLANEOUS RESOLUTIONS. 88'ſ administration of justice, in the cases of persons questioned for any act done by them in the execution of the law, or for the suppression of riots and tumults, in the province of the Massachusetts-Bay in New England; ” and another statute was then made, “for making more effectual provision for the government of the province of Quebec, &c.” All which statutes are impolitic, unjust and cruel, as well as unconsti- tutional, and most dangerous and destructive of American rights: And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the crown for redress, have been repeatedly treated with contempt, by his majesty’s ministers of state: The good people of the several colonies of New Hampshire, Massachusetts-Bay, Rhode Island, and Providence Planta- tions, Connecticut, New York, New Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Vir- ginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of parliament and adminis- tration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted: Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of at- taining the ends aforesaid, do, in the first place, as English- men, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, DECLARE, That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or com- pacts, have the following RIGHTS: Resolved, N. C. D. 1. That they are entitled to life, liberty and property: and they have never ceded to any sovereign 888 APPENDIX. power whatever, a right to dispose of either without their Consent. Jęesolved, N. C. D. 2. That our ancestors who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and im- munities of free and natural-born subjects, within the realm of England. Jºesolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy. Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circum- stances, cannot properly be represented in the British par- liament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed: But, from the necessity of the case, and a regard to the mutual interest of both coun- tries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of se- curing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its re- spective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in Amer- ica, without their consent. Resolved, N. C. D. 5. That the respective colonies are en- titled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law. Resolved, 6. That they are entitled to the benefit of such MISCELLANEOUS RESOLUTIONS. S89 of the English statutes, as existed at the time of their colo- nization; and which they have, by experience, respectively found to be applicable to their several local and other cir- cumstances. Resolved, N. C. D. 7. That these, his majesty’s colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws. Jęesolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal. Jºesolved, N. C. D. 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law. Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council ap- pointed, during pleasure, by the crown, is unconstitutional, dangerous and destructive to the freedom of American legis- lation. All and each of which the aforesaid deputies, in behalf of themselves, and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures. In the course of our inquiry, we find many infringements and violations of the foregoing rights, which, from an ardent desire, that harmony and mutual intercourse of affection and interest may be restored, we pass over for the present, and proceed to state such acts and measures as have been adopted since the last war, which demonstrate a system formed to enslave America. 890 APPENDIX. Resolved, N. C. D. That the following acts of parliament are infringements and violations of the rights of the colonies; and that the repeal of them is essentially necessary, in order to restore harmony between Great Britain and the Ameri- can colonies, viz.: - ' ' - The several acts of 4 Geo. III., ch. 15 and ch. 34; 5 Geo. III, ch. 25; 6 Geo. III., ch. 52; 7 Geo. III, ch. 41 and ch. 46; 8 Geo. III., ch. 22, which impose duties for the purpose of raising a revenue in America, extend the power of the admiralty courts beyond their ancient limits, deprive the American subject of trial by jury, authorize the judge's cer- tificate to indemnify the prosecutor from damages, that he might otherwise be liable to, requiring oppressive security from a claimant of ships and goods seized, before he shall be allowed to defend his property, and are subversive of American rights. Also 12 Geo.III., ch. 24, intitulated, “An act for the better securing his majesty's dock-yards, magazines, ships, ammu- nition, and stores,” which declares a new offence in America, and deprives the American subject of a constitutional trial by jury of the vicinage, by authorizing the trial of any per- son, charged with the committing any offence described in the said act, out of the realm, to be indicted and tried for the same in any shire or county within the realm. Also the three acts passed in the last session of parlia- ment, for stopping the port and blocking up the harbour of Doston, for altering the charter and government of Massa- chusetts-Bay, and that which is entitled, “An act for the better administration of justice, &c.” Also the act passed in the same session for establishing the Roman Catholic religion, in the province of Quebec, abolishing the equitable system of English laws, and erect- ing a tyranny there, to the great danger (from so total a dissimilarity of religion, law and government) of the neigh- boring British colonies, by the assistance of whose blood and treasure the said country was conquered from France. Also the act passed in the same session, for the better pro- MISCELLANEOUS RESOLUTIONS. 891 viding suitable quarters for officers and soldiers in his maj- esty's service, in North America. Also, that the keeping a standing army in several of these colonies, in time of peace, without the consent of the legis- lature of that colony, in which such army is kept, is against law. To these grievous acts and measures, Americans cannot submit, but in hopes their fellow subjects in Great Britain will, on a revision of them, restore us to that state, in which both countries found happiness and prosperity, we have for the present, only resolved to pursue the following peaceable measures: 1. To enter into a non-importation, non-con- Sumption, and non-exportation agreement or association. 2. To prepare an address to the people of Great Britain, and a memorial to the inhabitants of British America: and 3. To prepare a loyal address to his majesty, agreeable to reso- lutions already entered into. 1 Journals of Congress, pp. 26–30. In December, 1798, the General Assembly of Virginia passed certain resolutions: “Resolved, That the general assembly of Virginia doth unequivocally express a firm resolution to maintain and de- fend the constitution of the United States, and the constitu- tion of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former. “The general assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges all its powers; and that for this end it is their duty to watch over and oppose every infraction of those princi- ples, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence, and the public happiness. “That this assembly doth explicitly and peremptorily de- clare that it views the powers of the federal government as resulting from the compact, to which the states are par- 892 APPENDIX. ties, as limited by the plain sense and intention of the instru- ment constituting that compact; as no farther valid than they are authorized by the grants enumerated in that com- pact; and that in case of a deliberate, palpable and danger- ous exercise of other powers not granted by the said com- pact, the states, who are parties thereto, have the right and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. “That the general assembly doth also express its deep regret that a spirit has in Sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to ex- pound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumer- ation which necessarily explains, and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable re- sult of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy. “That the general assembly doth particularly protest against the palpable and alarming infractions of the constitu- tion, in the two late cases of the “alien and sedition acts,” passed at the last session of congress; the first of which exer- cises a power no where delegated to the federal government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of free govern- ment, as well as the particular organization and positive provisions of the federal constitution; and the other of which acts exercises, in like manner, a power not delegated by the constitution; but, on the contrary, expressly and posi- tively forbidden by one of the amendments thereto: a power, which, more than any other, ought to produce universal JMISCELLANEOUS RESOLUTIONS. 893 alarm; because it is leveled against that right of freely ex- amining public characters and measures, and of free Com- munication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right. “That this state having by its convention which ratified the federal constitution, expressly declared, ‘that among other essential rights, “the liberty of conscience and of the press cannot be canceled, abridged, restrained or modified by any authority of the United States,”’ and from its ex- treme anxiety to guard these rights from every possible attack of sophistry and ambition, having with other states recom- mended an amendment for that purpose, which amendment was in due time annexed to the constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other. “That the good people of this commonwealth, having ever felt and continuing to feel the most sincere affection to their brethren of the other states; the truest anxiety for estab- lishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happi- ness; the general assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining un- impaired, the authorities, rights, and liberties reserved to the states respectively, or to the people.” The Kentucky legislature, November 10, 1798, passed the following resolution: “I. Resolved, That the several states composing the United States of America, are not united on the principle of 894 APPENDIX. unlimited submission to their general government; but that by compact under the style and title of a constitution for the United States, and of amendments thereto, they consti- tuted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self- government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state ac- ceded as a state, and is an integral party, its co-states form- ing as to itself, the other party: That the government cre- ated by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitu- tion, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.” The House of Representatives of Delaware passed the fol- lowing resolution February 1, 1799: “Resolved, By the senate and house of representatives of the state of Delaware, in general assembly met, that they consider the resolutions from the state of Virginia, as a very unjustifiable interference with the general government and constituted authorities of the United States, and of danger- ous tendency, and therefore not a fit subject for the further consideration of the general assembly.” The State of Rhode Island and Providence Plantations, in General Assembly, February, 1799, passed the following resolutions: “1. Resolved, That in the opinion of this legislature, the second section of the third article of the constitution of the United States, in these words, to-wit: The judicial power shall extend to all cases arising under the laws of the United AStates, vests in the federal courts exclusively, and in the Su- MISCELLANEOUS RESOLUTIONS. - 895. preme court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the congress of the United States. “2. Resolved, That for any state legislature to assume that authority, would be, 1st. Blending together legislative and judicial powers. 2d. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort for windicating its own opinion, but to the strength of its OWI) alºnſ). 3rd. Submitting most important questions of law, to less competent tribunals: and 4th. An infraction of the constitution of the United States, expressed in plain terms.” “CoMMONWEALTH OF MASSACHUSETTS, IN SENATE, February 9, 1799. “The legislature of Massachusetts having taken into seri- ous consideration the resolutions of the state of Virginia, passed the 21st day of December last, and communicated by his excellency the governor, relative to certain supposed in- fractions of the constitution of the United States, by the government thereof, and being convinced that the federal constitution is calculated to promote the happiness, prosper- ity and safety of the people of these United States, and to maintain that union of the several states, so essential to the welfare of the whole; and, being bound by Solemn oath to support and defend that constitution, feel it unnecessary to make any professions of their attachment to it, or of their firm determination to support it against every aggression, foreign or domestic. “But they deem it their duty solemnly to declare, that while they hold sacred the principle, that the consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to de- nounce the administration of that government to which the 896 A PPENDIX. people themselves, by a solemn compact, have exclusively committed their national concerns: That, although a liberal and enlightened vigilance among the people is always to be cherished, yet an unreasonable jealousy of the men of their choice, and a recurrence to measures of extremity, upon groundless or trivial pretexts, have a strong tendency to de- stroy all rational liberty at home, and to deprive the United States of the most essential advantages in their relations abroad: That this legislature are persuaded, that the decis- ions of all cases in law and equity, arising under the consti- tution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States. “That the people in that solemn compact, which is de- clared to be the supreme law of the land, have not consti- tuted the state legislatures the judges of the acts or meas- ures of the federal government, but have confided to them the power of proposing such amendments of the constitu- tion, as shall appear to them necessary to the interests, or conformable to the wishes of the people whom they repre- sent. “That by this construction of the constitution, an amica- ble and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption. “But, should the respectable state of Virginia persist in the assumption of the right to declare the acts of the na- tional government unconstitutional, and should she oppose successfully her force and will to those of the nation, the constitution would be reduced to a mere cypher, to the form and pageantry of authority, without the energy of power. Every act of the federal government which thwarted the views or checked the ambitious projects of a particular state, or of its leading and influential members, would be the Ob- ject of opposition and of remonstrance; while the people, convulsed and confused by the conflict between two hostile JMISCELLANEOUS RESOLUTIONS. 897 jurisdictions, enjoying the protection of neither, would be wearied into a submission to some bold leader, who would establish himself on the ruins of both.” The New York legislature passed the following resolu- tion March 5, 1799: “And whereas the senate not perceiving that the rights of the particular states have been violated, nor any unconsti- tutional powers assumed by the general government, cannot forbear to express the anxiety and regret with which they observe the inflammatory and pernicious sentiments and doctrines which are contained in the resolutions of the leg- islatures of Virginia and Kentucky; sentiments and doc- trines no less repugnant to the constitution of the United States, and the principles of their union, than destructive to the federal government, and unjust to those whom the peo- ple have elected to administer it; wherefore, - “Resolved, That while the senate feel themselves con- strained to bear unequivocal testimony against such senti- ments and doctrines, they deem it a duty no less indispen- Sable, explicitly to declare their incompetency, as a branch of the legislature of this state, to supervise the acts of the general government.” The legislature of Connecticut passed the following resolu- tion on the “second Tuesday of May, anno domini, 1799: ” Resolved, That this assembly views with deep regret, and explicitly disavows, the principles contained in the aforesaid resolutions; and particularly the opposition to the “alien and sedition acts,” acts, which the constitution authorized; which the exigency of the country rendered necessary; which the constituted authorities have enacted, and which merit the entire approbation of this assembly. They therefore decidedly refuse to concur with the legislature of Virginia, in promoting any of the objects attempted in the aforesaid resolutions.” 57 898 APPENDIX. The legislature of New Hampshire passed the following resolution June 14, 1799: “Resolved, That the legislature of New Hampshire un- equivocally express a firm resolution to maintain and defend the constitution of the United States, and the constitution of this State, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former. “That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government—that the duty of such decision is properly and exclusively confided to the judicial department.” The legislature of Vermont passed the following resolu- tion October 30, 1799: “Resolved, That the general assembly of the state of Wer- mont do highly disapprove of the resolutions of the general assembly of Virginia, as being unconstitutional in their nat- ure, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclu- sively wested in the judiciary courts of the union: That his excellency the governor be requested to transmit a copy of this resolution to the executive of Virginia, to be communi- cated to the general assembly of that state: And that the same be sent to the governor and council for their concur- rence.” “Resolutions of Virginia and Kentucky.” CONSTITUTION OF THE UNITED STATES OF AMERICA. WE, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tran- quillity, provide for the common defense, promote the gen- eral Welfare, and secure the blessings of liberty to ourselves and Our posterity, to Ordain and establish this Constitution for the United States of America. ARTICLE I. SECTION 1-1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. SECTION 2–1. The House of Representatives shall be com- posed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. 2. No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. 3. Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall 900 APPENDIX. be determined by adding to the whole number of free per- sons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Rep- resentative; and, until such enumeration shall be made, the state of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Planta- tions one, Connecticut five, New York six, New Jersey four, Bennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. 4. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. 5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeach- ment. SECTION 3.—1. The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote. 2. Immediately after they shall be assembled in conse- quence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the sec- ond year; of the second class, at the expiration of the fourth year; and of the third class, at the expiration of the sixth year; so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. CONSTITUTION OF THE UNITED STATES, 901 3. No person shall be a Senator who shall not have at- tained to the age of thirty years, and been nine years a citi- Zen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. 4. The Vice-President of the United States shall be Presi- dent of the Senate, but shall have no vote, unless they be equally divided. 5. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. 6. The Senate shall have the sole power to try all im- peachments. When sitting for that purpose, they shall be On oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. 7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and pun- ishment, according to law. SECTION 4–1. The times, places, and manner, of holding elections for Senators and Representatives, shall be pre- scribed in each state by the legislature thereof: but the Con- gress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators. 2. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in De- cember, unless they shall by law appoint a different day. SECTION 5.— 1. Each House shall be the judge of the elec- tions, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller, number may adjourn from day to day, and may be authorized to compel the attendance of absent mem- bers, in such manner, and under such penalties, as each House may provide. 902 APPENDIX. 2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. 3. Each House shall keep a journal of its proceedings, and, from time to time, publish the same, excepting such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal. 4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. SECTION 6.—1. The Senators and Representatives shall re- ceive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attend- ance at the session of their respective Houses, and in going to, and returning from, the same; and for any speech or debate in either House, they shall not be questioned in any other place. 2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person, holding any office under the United States, shall be a member of either House during his continuance in office. SECTION 7.—1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may pro- pose or concur with amendments as on other bills. 2. Every bill, which shall have passed the House of Rep- resentatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have origi- CONSTITUTION OF THE UNITED STATES. 903 nated, who shall enter the objections at large on their jour- nal, and proceed to reconsider it. If, after such reconsider- ation, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and, if approved by two-thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be de- termined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the jour- nal of each House respectively. If any bill shall not be re- turned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Con- gress, by their adjournment, prevent its return, in which case it shall not be a law. 3. Every order, resolution, or vote, to which the concur- rence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. SECTION 8.—The Congress shall have power '1. To lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare, of the United States; but all duties, im- posts, and excises, shall be uniform throughout the United States: 2. To borrow money on the credit of the United States: 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes: 4. To establish a uniform rule of naturalization, and uni- form laws on the subject of bankruptcies, throughout the United States: 5. To coin money, regulate the value thereof, and of for- eign coin, and fix the standard of Weights and measures: w” 904 S. APPENDIX. 6. To provide for the punishment of counterfeiting the securities and current coin of the United States: 7. To establish post-offices and post-roads: 8. To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the ex- clusive right to their respective writings and discoveries: 9. To constitute tribunals inferior to the Supreme Court: 10. To define and punish piracies and felonies, committed on the high seas, and offences against the law of nations: 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water: 12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years: 13. To provide and maintain a navy: 14. To make rules for the government and regulation of the land and naval forces: 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel inva- sions: 16. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be em- ployed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress: 17. To exercise exclusive legislation in all cases whatso- ever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places, pur- chased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arse- nals, dock-yards, and other needful buildings:– And 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. CONSTITUTION OF THE UNITED STATES. 905 SECTION 9.–1. The migration or importation of such per- sons, as any of the states, now existing, shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. 2. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. 3. No bill of attainder, or ea post facto law, shall be passed. 4. No capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. 5. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties, in another. 6. No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. 7. No title of nobility shall be granted by the United States; and no person, holding any office of profit or trust under them, shall, without the consent of the Congress, ac- cept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. SECTION 10.— 1. No state shall enter into any treaty, alli- ance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ea, post facto law, or law impairing the obligation of contracts, or grant any title of nobility. 2. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by 906 APPENDIX. any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war, in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually in- waded, or in such imminent danger as will not admit of delay. ARTICLE II. - SECTION 1.-1. The Executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term, be elected as follows: 2. Each state shall appoint, in such manner as the legisla- ture thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives, to which the state may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit, under the United States, shall be appointed an Elector. 3. The Electors shall meet in their respective states, and vote by ballot for two persons, of whom one, at least, shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit, sealed, to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certifi- cates, and the votes shall then be counted. The person hav- ing the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one, who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one CONSTITUTION OF THE UNITED STATES. 907 of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall, in like manner, choose the President. But in choosing the President, the votes shall be taken by states, the represen- tation from each state having one vote; a quorum for this purpose shall consist of a member or members from two- thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them, by ballot, the Vice-President. 4. The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States. 5. No person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Con- stitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. 6. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accord- ingly, until the disability be removed, or a President shall be elected. 7. The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive, within that period, any other emolument from the United States, or any of them. 8. Before he enter on the execution of his office, he shall take the following Oath or affirmation: 908 APPENDIX. 9. “I do solemnly swear (or affirm), that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.” * SECTION 2.—1. The President shall be Commander-in-Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and par- dons for offences against the United States, except in cases of impeachment. 2. He shall have power, by and with the advice and con- sent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he 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 other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law west the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. 3. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by grant- ing commissions which shall expire at the end of their next session. SECTION 3.—1. He shall, from time to time, give to the Congress information of the state of the Union, and recom- mend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occa- sions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully CONSTITUTION OF THE UNITED STATES. 909 executed, and shall commission all the officers of the United States. SECTION 4.— 1. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ARTICLE III. SECTION 1-1. The judicial power of the United States shall be wested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensa- tion which shall not be diminished during their continuance in office. SECTION 2–1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting am- bassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of dif- ferent states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects. 2. In all cases affecting ambassadors, other public minis- ters and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. 3. The trial of all crimes, except in cases of impeachment, 910 APPENDIX. shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state the trial shall be at such place or places as the Congress may by law have directed. SECTION 3.—1. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open COurt. 2. The Congress shall have power to declare the punish- ment of treason, but no attainder of treason shall work cor- ruption of blood or forfeiture, except during the life of the person attainted. ARTICLE IV. SECTION 1-1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records, and pro- ceedings shall be proved, and the effect thereof. SECTION 2.— 1. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. 2. A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in an- other state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. 3. No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. SECTION 3.—1. New states may be admitted by the Con- gress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any CONSTITUTION OF THE UNITED STATES. 911 state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress. A / 2. The Congress shall have power to dispose of and make "all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state. SECTION 4–1. The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on applica- tion of the legislature, or of the executive (when the legisla- ture cannot be convened), against domestic violence. ARTICLE V. 1. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Consti- tution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid, to all in- tents and purposes, as part of this Constitution, when rati- fied by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: provided that no amendment which may be made prior to the year one thousand eight hundred and eight, shall, in any manner, affect the first and fourth clauses in the ninth sec- tion of the first Article; and that no state, without its con- sent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. 1. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the Confederation. 912 ; APPENDIX. 2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwith- standing. 3. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VII. 1. The ratification of the conventions of nine states shall be sufficient for the establishment of this Constitution be- tween the states so ratifying the same. Done in convention by the unanimous consent of the States present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty- seven, and of the Independence of the United States of America, the twelfth. In witness whereof we have here- unto subscribed our names. GEORGE WASHINGTON, President and deputy from Virginia. Mew Hampshire, New Jersey, JOHN LANGDON, WILLIAM LIVINGSTON, NICHOLAS GILMAN. DAVID BREARLEY, Massachusetts, . WILLIAM PATTERSON, NATHANIEL GORHAM, JONATHAN DAYTON. RUFUS EING, Pennsylvania, Connecticut, BENJAMIN FRANKLIN, WILLIAM SAMUEL JOHNSON, THOMAS MIFFLIN, ROGER SHERMAN. ROBERT MORRIS, JNew York, GEORGE CLYMER, ALEXANDER HAMILTON. THOMAS FITZSIMONS, CONSTITUTION OF THE UNITED STATES. 913 * — Pennsylvania — continued, Virginia, JARED INGERSOLL, JOHN BLAIR, JAMES WILSON, JAMES MADISON, JR. & GOUVERNEUR MORRIS. INorth Carolina, WILLIAM BLOUNT, RICHARD DOBBS SPAIGHT, HU. WILLIAMSON. South Carolina, J. R.UTLEDGE, C. COTESWORTH PINCKNEY, CHARLES PINCKNEY, Delaware, GEORGE READ, GUNNING BEDFORD, JR., JOHN DICKINSON, RICHARD BASSETT, JACOB BROOM. Maryland, PIERCE BUTLER. JAMES M'HENRY, Georgia, DANIEL OF ST. THO, JENIFER, WILLIAM FEW, DANIEL CARROLL. ABRAHAM BALDWIN. Attest, WILLIAM JACKSON, Secretary. 58 914 APPENDIX, AMENDMENTS TO THE CONSTITUTION ARTICLE I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or ‘abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the gov- ernment for a redress of grievances. ARTICLE II. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. ARTICLE III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor, in time of war, but in a manner to be prescribed by law. ARTICLE IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirma- tion, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE W. No person shall be held to answer for a capital, or other- wise infamous, crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; AMENDIMENTS TO THE CONSTITUTION. 915. nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. ARTICLE VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his de- fence. ARTICLE VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact, tried by a jury, shall be other- wise re-examined in any court of the United States than ac- cording to the rules of the common law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. ARTICLE X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 9:16 * - APPENDIX. ARTICLE XI. The judicial power of the United States shall not be con- strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. ARTICLE XII. 1. The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign, and certify, and transmit, sealed, to the seat of the Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such a majority, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose im- mediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the represen- tation from each state having one vote; a quorum for this purpose shall consist of a member or members from two- thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as Presi- dent, as in case of the death, or other constitutional dis- ability, of the President. AMENDMENTS TO THE CONSTITUTION. 917 2. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of Electors appointed; and if no person have a majority, then, from the two highest numbers on the list, the Senate shall choose the Vice-Presi- dent; a quorum for the purpose shall consist of two-thirds of the whole number of Senators; a majority of the whole number shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of President, shall be eligible to that of Vice-President of the United States. ARTICLE XIII. SECTION 1-Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. SECTION 2.—Congress shall have power to enforce this ar- ticle by appropriate legislation. ARTICLE XIV. SECTION 1-All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any per- son within its jurisdiction the equal protection of the laws. SECTION 2.—Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, exclud- ing Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice- President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhab- *918 APPENDIX. itants of such state, being twenty-one years of age, and citi- zens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. SECTION 3.-Mo person shall be a Senator or Representa- tive in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an ex- ecutive or judicial officer of any state, to support the Con- stitution of the United States, shall have engaged in insur- rection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. SECTION 4.—The validity of the public debt of the United States, authorized by law, including debts incurred for pay- ment of pensions and bounties for services in suppressing in- surrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or eman- cipation of any slave; but all such debts, obligations, and claims shall be held illegal and void. SECTION 5.—The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. ARTICLE XV. SECTION 1.- The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condi- tion of servitude. SECTION 2.—The Congress shall have power to enforce this article by appropriate legislation. DECLARATION OF INDEPENDENCE. 919 DECLARATION OF INDEPENDENCE, ARTICLES OF CONFEDERATION, ETC. I. THE DECLARATION OF INDEPENDENCE. II. THE ARTICLES OF CONFEDERATION. III. RESOLUTIONS AND LETTER TRANSMITTED TO CONGRESS BY THE FED- ERAL CONVENTION. I. A DECLARATION BY THE REPRESENTATIVES OF THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED. WHEN, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long estab- lished, should not be changed for light and transient causes; and, accordingly, all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usur- pations, pursuing invariably the same object, evinces a design 920 APPENDIX. to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies, and such is now the necessity which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having, in direct object, the establishment of an absolute tyranny over these States. To prove this, let facts be sub- mitted to a candid World: º He has refused his assent to laws the most wholesome and necessary for the public good. He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them. He has refused to pass other laws for the accommodation of large districts of people, unless those people would relin- quish the right of representation in the legislature; a right inestimable to them, and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their pub- lic records, for the sole purpose of fatiguing them into com- pliance with his measures. He has dissolved representative houses repeatedly, for op- posing, with manly firmness, his invasions on the rights of the people. He has refused, for a long time after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the State remaining, in the mean time, exposed to all the dangers of invasion from without, and convulsions within. He has endeavored to prevent the population of these States; for that purpose, obstructing the laws for naturali- zation of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new ap- propriations of lands. - DECLARATION OF INDEPENDENCE, 92.1 He has obstructed the administration of justice, by refus- ing his assent to laws for establishing judiciary powers. He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of new offices, and sent hither swarms of officers to harass Our people, and eat out their substance. He has kept among us, in times of peace, standing armies, without the consent of Our legislature. He has affected to render the military independent of, and superior to, the civil power. He has combined, with others, to subject us to a jurisdic- tion foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legis- lation: For quartering large bodies of armed troops among us: For protecting them, by a mock trial, from punishment, for any murders which they should commit on the inhabit- ants of these States: For cutting off our trade with all parts of the world: For imposing taxes on us without our consent: For depriving us, in many cases, of the benefits of trial by jury: For transporting us beyond seas to be tried for pretended Offences: For abolishing the free system of English laws in a neigh- boring province, establishing therein an arbitrary govern- ment, and enlarging its boundaries, so as to render it at Once an example and fit instrument for introducing the same absolute rule into these colonies: For taking away our charters, abolishing our most valu- able laws, and altering, fundamentally, the powers of our governments: For suspending our own legislatures, and declaring them- selves invested with power to legislate for us in all cases whatsoever. 922 r APPENDIX. He has abdicated government here, by declaring us out of his protection, and waging war against us. He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people. He is, at this time, transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny, already begun, with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation. He has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands. He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction, of all ages, sexes, and condi- tions. In every stage of these oppressions, we have petitioned for redress, in the most humble terms; our repeated peti- tions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people. Nor have we been wanting in attention to our British brethren. We have warned them, from time to time, of attempts made by their legislature to extend an unwarrantable juris- diction over us. We have reminded them of the circum- stances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them, by the ties of Our common kindred, to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They, too, have been deaf to the voice of justice and consanguinity. We must, therefore, acquiesce in the necessity which denounces our separation, and hold them as we hold the rest of mankind, enemies in war, in peace, friends. DECLARATION OF INDEPENDENCE, 923 We, therefore, the representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, That these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown, and that all political con- nection between them and the state of Great Britain, is, and Ought to be, totally dissolved; and that, as FREE AND INDE- PENDENT STATES, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which INDEPENDENT STATEs may of right do. And, for the support of this declaration, with a firm reliance on the protection of DIVINE PROVIDENCE, we mutually pledge to each other, our lives, Our fortunes, and Our sacred honor. New Hampshire. JOSIAH BARTLETT, WILLIAM WHIPPLE, MATTHEW TEIORNTON. Massachusetts Bay. SAMUEL ADAMS, JOHN ADAMS, ROBERT TREAT PAINE, ELBRIDGE GERRY. JRhode Island. STEPHEN EIOPKINS, WILLIAM ELLERY. Connecticut. ROGER SHERMAN, SAMUEL HUNTINGTON, WILLIAM WILLIAMS, OLIVER, WOLCOTT. New York. WILLIAM FLOYD, PHILIP LIVINGSTON, FRANCIS LEWIS, LEWIS MORRIS. JoHN HANCOOK. New Jersey. RICHARD STOCKTON, JOHN WITHERSPOON, FRANCIS HOPKINSON, JOHN HART, ABRAHAM CLARK. JPennsylvania. ROBERT MORRIS, BENJAMIN RUSH, BENJAMIN FRANKLIN, JOHN MORTON, GEORGE CLYMER, JAMES SMITH, GEORGE TAYLOR, JAMES WILSON, GEORGE ROSS. Delaware. CAESAR RODNEY, GEORGE READ, THOMAS M’KEAN. Maryland. SAMUEL CHASE, WILLIAM PACA, 924 APPENDIx. 1Maryland—continued. North Carolina. THOMAS STONE, WILLIAM HOOPER, CHARLES CARROLL, of Carroll- JOSEPH HEWES, ton. JOHN PENN. Virginia. South Carolina. GEORGE WYTHE, EDWARD RUTLEDGE, THOMAS HEYWARD, JR., THOMAS LYNCH, JR., ARTHUR MIDDLETON. RICHARD HENRY LEE, THOMAS JEFFERSON, BENJAMIN HARRISON, º THOMAS NELSON, JR., Georgia. FRANCIS LIGHTFOOT LEE, BUTTON GWINNETT, CARTER BRAXTON. LYMAN HALL, GEO. WALTON. II. ARTICLES OF CONFEDERATION And perpetual union between the states of New Hamp- shire, Massachusetts Bay, Rhode Island and Providence Plan- tations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Caro- lina, and Georgia. ARTICLE I. The style of this Confederacy shall be, “THE UNITED STATES OF AMERICA.” ARTICLE II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled. ARTICLE III. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. ARTICLE IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this Union, the free inhabitants of each of these states, paupers, Vagabonds, and fugitives from justice ex- ARTICLES OF CONFEDERATION. 925 cepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state; and shall enjoy therein all the privileges of trade and commerce, Subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively; provided, that such restriction shall not extend so far as to prevent the removal of property imported into any state to any other state, of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction shall be laid by any state on the property of the United States, or either of them. If any person guilty of, or charged with treason, felony, or other high misdemeanor, in any state, shall flee from jus- tice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the state from which he fled, be delivered up and removed to the state hav- ing jurisdiction of his offence. Full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state. ARTICLE W. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and send others in their stead for the re- mainder of the year. No state shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees, or emolument of any kind. Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the com- mittee of the states. 926 APPENDIX. In determining questions in the United States in Congress assembled, each state shall have one vote. Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Con- gress; and the members of Congress shall be protected in their persons from arrests and imprisonment during the time of their going to, and from, and attending on Congress, except for treason, felony, or breach of the peace. ARTICLE VI. No state, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state; nor shall any person, holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more states shall enter into any treaty, con- federation, or alliance whatever between them, without the consent of the United States in Congress assembled, speci- fying accurately the purposes for which the same is to be entered into, and how long it shall continue. No state shall lay any imposts or duties, which may inter- fere with any stipulations in treaties entered into by the United States in Congress assembled with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the Courts of France and Spain. No vessels of war shall be kept up, in time of peace, by any state, except such number only as shall be deemed nec- essary, by the United States in Congress assembled, for the defence of such state or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well-regulated and disciplined ARTICLES OF CONFEDERATION, 927 militia, sufficiently armed and accoutred; and shall provide and constantly have ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage. No state shall engage in any war, without the consent of the United States in Congress assembled, unless such state be actually invaded by enemies, or shall have received cer- tain advice of a resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any state grant com- missions to any ship or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled; and then only against the kingdom or state, and the subjects thereof, against which War has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such state be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise. ARTICLE VII. When land forces are raised by any state for the common defence, all officers of or under the rank of colonel shall be appointed by the legislature of each state respectively, by whom such forces shall be raised, or in such manner as such state shall direct; and all vacancies shall be filled up by the state which first made the appointment. ARTICLE VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress as- sembled, shall be defrayed out of a common treasury which shall be supplied by the several states in proportion to the value of all land within each state, granted to or surveyed for any person as such land and the buildings and improve- ments thereon shall be estimated, according to such mode as the United States in Congress assembled shall, from time to time, direct and appoint. The taxes for paying that pro- 928 APPENDIX. portion shall be laid and levied by the authority and direc- tion of the legislatures of the several states, within the time agreed upon by the United States in Congress assembled. ARTICLE IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of deter- mining on peace and war, except in the cases mentioned in the sixth Article: Of sending and receiving ambassadors: Entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or im, portation of any species of goods or commodities whatever: Of establishing rules for deciding, in all cases, what captures on land or water shall be legal; and in what manner prizes, taken by land or naval forces in the service of the United States, shall be divided or appropriated: Of granting let- ters of marque and reprisal in times of peace: Appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and de- termining, finally, appeals in all cases of captures; provided that no member of Congress shall be appointed a judge of any of the said courts. The United States, in Congress assembled, shall also be the last resort, on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent of any state, in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given, by order of Congress, to the legislative or executive authority of the other state in controversy; and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court ARTICLES OF CONFEDERATION. 929 for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States; and from the list of such persons each party shall alternately strike out one, the peti- tioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy, so always as a major part of the judges, who shall hear the cause, shall agree in the determination. And if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge suffi- cient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each state, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before pre- scribed, shall be final and conclusive. And if any of the parties shall refuse to submit to the authority of such court, or to appear, or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judg- ment or sentence and other proceedings being, in either case, transmitted to Congress and lodged among the Acts of Congress for the security of the parties concerned: Pro- vided that every commissioner, before he sits in judgment, shall take an oath, to be administered by One of the judges of the supreme or superior court of the state where the cause shall be tried, “Well and truly to hear and determine the matter in question, according to the best of his judg- ment, without favor, affection, or hope of reward: ” Provided also, that no state shall be deprived of territory for the benefit of the United States. All controversies concerning the private right of soil claimed under different grants of two or more states, whose 59 930 APPENDIX. jurisdictions, as they may respect such lands and the states which passed such grants, are adjusted, the said grants, or either of them, being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding dis- putes respecting territorial jurisdiction between different states. The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states: Fixing the standard of weights and measures throughout the United States: Regulating the trade and managing all affairs with the Indians, not mem- bers of any of the states; provided that the legislative right of any state within its own limits be not infringed or vio- lated: Establishing and regulating post-offices, from one state to another, throughout all the United States, and ex- acting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office: Appointing all officers of the land forces in the service of the United States, excepting regimental officers: Appoint- ing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States: Making rules for the government and regulation of the land and naval forces, and directing their operations. The United States, in Congress assembled, shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated A COMMITTEE OF THE STATES, and to consist of one delegate from each state, and to ap- point such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction: To appoint one of their num- ber to preside; provided that no person be allowed to serve in the office of president more than one year in any term of three years: To ascertain the necessary sums of money to ARTICLES OF CONFEDERATION. 931 be raised for the service of the United States, and to appro- priate and apply the same for defraying the public expenses: To borrow money or emit bills on the credit of the United States, transmitting every half year to the respective states an account of the sums of money so borrowed or emitted: To build and equip a navy: To agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state, which requisition shall be binding; and there- upon the legislature of each state shall appoint the regi- mental officers, raise the men, and clothe, arm, and equip them, in a soldierlike manner, at the expense of the United States; and the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assem- bled: but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any state should not raise men, or should raise a smaller number than its quota, and that any other state should raise a greater number of men than its quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such state; unless the legis- lature of such state shall judge that such extra number can- not be safely spared out of the same; in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared: and the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled. The United States, in Congress assembled, shall never en- gage in a war; nor grant letters of marque and reprisal in time of peace; nor enter into any treaties or alliances; nor coin money; nor regulate the value thereof; nor ascertain the sums and expenses necessary for the 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 appro- priate money; nor agree upon the number of vessels of war 932 APPENDIX. f to be built or purchased, or the number of land or sea forces to be raised; nor appoint a Commander-in-Chief of the army or navy; unless nine states assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled. The Congress of the United States shall have power to ad- journ to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months; and shall pub- lish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military opera- tions, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Jour- nal, except such parts as are above excepted, to lay before the legislatures of the several states. ARTICLE X. The committee of the states, or any nine of them, shall be authorized to execute, in the recess of Con- gress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine states, shall from time to time think expedient to vest them with; pro- vided that no power be delegated to the said committee, for the exercise of which, by the Articles of Confederation, the voice of nine states in the Congress of the United States as- sembled is requisite. - ~, ARTICLE XI. Canada, acceding to this Confederation, and joining in the measures of the United States, shall be ad- mitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine states. - ARTICLE XII. All bills of credit emitted, moneys bor- rowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed ARTICLES OF CONFEDERATION, 933 and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith, are hereby solemnly pledged. ARTICLE XIII. Every state shall abide by the determina- tions of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every state; and the Union shall be perpetual. Nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Con- gress of the United States, and be afterwards confirmed by the legislatures of every state. * And whereas, it hath pleased the Great Governor of the world to incline the hearts of the legislatures we respect- ively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual TJnion: Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that pur- pose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confedera- tion and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them; and that the articles thereof shall be inviolably observed by the states we respectively represent; and that the Union shall be per- petual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia, in the state of Pennsylvania, the 9th day of July, in the year of our Lord 1778, and in the 3d year of the Independence of America. 934 APPENDIX, III. RESOLUTIONS AND LETTER TRANSMITTED TO CoNGRESS BY THE FEDERAL CONVENTION. IN CoNVENTION, Monday, SEPTEMBER 17, 1787. Present: The States of New Hampshire, Massachusetts, Con- necticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this convention that it should afterwards be sub- mitted to a Convention of delegates, chosen in each state by the people thereof, under the recommendation of its legisla- ture, for their assent and ratification; and that each conven- tion, assenting to and ratifying the same, should give notice thereof, to the United States in Congress assembled. Jęesolved, That it is the opinion of this Convention, that as soon as the conventions of nine states shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the states which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Constitution. That after such publication the electors should be appointed, and the Senators and Representatives elected; that the electors should meet on the day fixed for the election of the President, and should transmit their votes certified, signed, sealed, and directed as the Constitution requires, to the Secretary of the United States in Congress assembled; that the Senators and Representatives should convene at the time and place assigned; that the Senators should appoint a president of the Senate, for the sole purpose of receiving, opening, and counting the votes for President; and that, after he shall be chosen, the Congress, together RESOLUTIONS, ETC. 935 with the President, should, without delay, proceed to execute this Constitution. By the unanimous order of the Convention. GEORGE WASHINGTON, President. WILLIAM JACKSON, Secretary. IN CONVENTION, SEPTEMBER 17, 1787. SIR: We have now the honor to submit to the considera- tion of the United States in Congress assembled, that Con- stitution which has appeared to us the most advisable. The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the corre- spondent executive and judicial authorities, should be fully and effectually vested in the General Government of the Union; but the impropriety of delegating such extensive trust to one body of men is evident: hence results the neces- sity of a different organization. It is obviously impracticable, in the Federal Government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American—the consolidation of our Union — in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seri- ously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magni- 936 APPENDIX. tude than might have been otherwise expected; and thus the Constitution which we now present is the result of a spirit of amity, and of that mutual deference and conces- sion which the peculiarity of our political situation rendered indispensable. That it will meet the full and entire approbation of every state, is not, perhaps, to be expected; but each will doubt- less consider that, had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. With great respect, we have the honor to be, sir, your excellency's most obedient, humble servants. By unanimous order of the Convention. GEORGE WASHINGTON, President. His Excellency the PRESIDENT OF CONGRESS. TNDEX. References are to pages, ABORIGINES — have no right to American continent, 182. ACCUSED — may obtain witnesses by compulsory process of law, 680. shall have right to have counsel, 680. ACT OF 1789 — provisions as to relations between State and Federal courts on State laws involving Federal questions, 765–767. ADMIRALTY AND MARITIME JURISDICTION — belongs to United States, 758, 762, nature and scope of, 772–781. applies to cases of prizes, etc., 778. includes collisions within ebb of tide, 774. includes navigable rivers and canals, 775, 776. crimes, how far punishable under, 779–781, AFFREIGHTMENT, 778. ALASKA TREATY — discussed in connection with treaty-making power, 781. ALIEN — right of, to hold land in a State under terms of treaty of the United States maintained, 732. right of, to sue in Federal courts, 796, 797. AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS- cases involving, fall under jurisdiction of United States, 760. nature of Federal jurisdiction over, 770–772, jurisdiction over cases affecting, is concurrently in Supreme Court and district courts of United States, 771, 772. AMENDMENTS — * to the Constitution, how obtained, 822–824. first twelve, when and why passed, fié5, 666. see FIRST AMENDMENT, SECOND AMENDMENT, ETC, AMNESTY PROCLAMATIONS — nature of, 719, 720. 938 º INDEX. • A References are to pages. ANDERSON 4), DUNN — on power of House of Representatives to punish recalcitrant wit- ness, 435, 436. ANGLES — f original home of, 112. ANNAPOLIS CONVENTION – proposed by Madison, 263. action of, 264. proposes Philadelphia convention, 264. APPOINTMENTS — power of President to make, 732, 740. power of President to make, limited how, 732–734. to remove from, 734–786. to make, after creating the offices, 736–738. power of President to make temporary, 740–742. APPROPRIATION BILLS.– why and how originate in either House under American Constitu- tion, 448–451. APPROPRIATIONS — may be made by Congress for what purposes, 482–492. APPROPRIATIONS, ENGLISH – period of, 160. ARMIES.– power of Congress to raise and support, means what, 578. appropriations for support of, to last no longer than two years, 579. ARMS — right to keep, guaranteed by second amendment, 671, ARMY, STANDING— as instrument of despotism, 52. maintenance of, regulated in 1688, 159. use of, by English king in elections, forbidden, 157. ARREST – members of Congress, when and how privileged from, 438–440, ARTICLES OF CONFEDERATION – the first Federal Constitution of the United States, 287. powers of Congress over revenue under, 456. taxes, how apportioned under, 505. power of Congress over coin, etc., under, 513. commerce power under the, 519, 520. practice of Congress under, as to trade, 523. power of States to interdict trade under, 528. restricted privileges of citizenship to free inhabitants of States, 558. INDEX. - 939 References are to pages. ARTICLES OF CONFEDERATION (continued)— provisions of, why displaced by those of Constitution on citizen- ship, 558. differ how from Constitution on power to coin money, etc., 563. postal power of Congress under, 565, 566. war powers of Congress under, 581, 582. provisions as to admission of new States, 611. as to public acts, records, etc., and the full faith and credit thereof, 625. extradition under, 629. ARYAN — the original language, 108. race, original home of, 109. ASEIBURTON TREATY — discussed in connection with treaty-making power, 731. ASSEMBLY — right of, guaranteed by first amendment, 667. ASSEMBLY, GRAND, OF VIRGINIA— early acts and authority of, 187, 188. ASSIZES — how provided for by Magna Carta, 121. ATHENS — aristocracy in, 86. view of Madison on government in, 86. ATTAINDER — bills of, how used, 420. ATTAINDER, BILL OF — passage of, forbidden, 652. history of clause concerning, 652, 658. operation of, discussed, 653, defined, 653, 654, decisions in cases applying to oath exacted after civil war, 653,654. may not be passed by States, 827. ATTORNEY-GENERAL, ENGLISH – how selected, 173. AULA REGIS — how strengthened royal power, 118. B. BAGEHOT – on hereditary monarchy in England, 164. BAIL — excessive, not to be demanded (eighth amendment), 686. 940 INDEX. ! ~~~ References are to pages. BANKRUPTCY- • ** Congressional power over, discussed, 559–563. power over, how related to prohibition on States to impair obliga- tion of contracts, 559, 560, defined, 560. status of decisions as to constitutionality of laws regarding, 563. BANKS.– no power in Congress to charter, 516, 517. discussed in Federal convention, 518. State, legislated out of existence by Congress, 518. created by Congress, 518. BARON AND FEMME — law making, competent witnesses against one another is ea; post facto, 658. BARONS — power of, how limited that of kings, 119. BELKNAP– impeachment of, 421. BI-CAMERAL PRINCIPLE – in the United States, 99, 100. adopted by Federal convention, 326–328. applied to Congress, 393. BIGAMIST – law preventing, from voting, not eac post facto, 658. BILLS OF CREDIT — w debate in Federal convention on issue of by Congress, 509. nature of, 509, 510, power of Congress to issue may be inferred as means of borrowing, 514, 515. may be emitted by States, but not as currency, 514, 824, defined, 824, 825, - BILL OF RIGHTS (ENGLAND)— enacted under William and Mary, 149. provisions of, 152. BILL OF RIGHTS OF VIRGINIA — theory of human equality in, 4, 6. on relation of individual to government, 48. locates sovereignty in people, 61. adopted, 225. nature of, 225, 226. on source of sovereignty, etc., 352. INDEX. e 941 References are to pages. BILL OF LADING — State tax on interstate, is void, 545. BLACKSTONE – definition of sovereignty, 61. on original status of American colonies, 184, fallacy of, on common law in American colonies, 193, definition of commerce power, 519. BLAND, RICHARD — at Williamsburg Congress, 205. delegate to Continental Congress, 205. BLOUNT— impeachment of, 421. BLUNTSCHLI– confusion of ideas as to sovereignty, 62. BODY-POLITIC — method in study of, 1. defined, 1, 2. study of, how related to sociology, 3. nature of functions of, 12. character as trustee, 13, 14. composition of, 46. will of, how determined, 46. assumption underlying, 47. a growth, 48. how to use government as agent in social reform, 50. de jure and de facto, 53–56. functions of de facto Body-politic, 57. relation to God and society, 54. as author of government, 60, 62. supremacy of, the foundation of American constitutional law, 66. early functions of, in America, 58. functions of representative (see ConVENTION, CONSTITUTIONAL), 72. power of, expressed in three forms, 73, 74. de facto composition of English, under Magna Carta, 121, original colonies not a single, 202. BOROUGHS, ROTTEN – nature of, 153. number of, 154, BORROWING POWER – under Articles of Confederation, 508. debate on, in Federal convention, 508, 509. “BOSTON PORT BILL’” — effect of, 204. 942 INDEX. References are to page3. Bosworth, BATTLE OF- overthrows House of York, 129, BOTTOMRY BONDS, 778, BOUNTIES.– may not be constitutionally paid under form of appropriations, 498– 497. IBRACTON – work on civil and common law, 124. BRADLEY, JUSTICE— - on power of Congress to build railways, 572. BRADWELL v. STATE – decision in, as affecting jurisdiction of States over citizenship, 345. BRIBERY — a subject for impeachment, 416, BRITISH CONSTITUTION.— how differs essentially from American, 349-351. system of taxation under, how differs from American, 507. cabinet system in, 443. differs how from American in treatment of revenue bills, 448. BROWN v. STATE OF MARYLAND — as illustrating distinction between State and Federal powers, 539– 541. IBRYOE — on presidential elections, 709. IBURGESS — general position on the Constitution, 179, BURGESSES, HOUSE OF, IN VIRGINIA— action on taxation, 187. BURKE – on principles of representation, 93, 94, on American taxation, 96, 97. on early powers of the American colonies, 191. BURR, AARON — presidential contest with Jefferson, 701, 702, C. CABINET, ENGLISH – origin of, 152. description of, 165–167. why members cannot be admitted to floor of Congress, 444, 445. CABINET SYSTEM — in England, 443. principle of, would be subversive of American Constitution, 444, 445. INDEX. 943 References are to pages. CABOT, JOHN — discovers America, 181. CADWALADER, GENERAL — authorized to suspend writ of habeas corpus, 648, 649. CAESAR — judgment of, on Teutons, 109, 110. CALEIOUN — on system of “checks and balances,” 94. CALVIN — * case of, as to holding of land of England, 201. CANADA— character of migration into, 113. CANALS — # included in admiralty and maritime jurisdiction, 776. CAPITATION TAX (see TAx). CAPTURES, RULES CONCERNING – scope of power of Congress over explained, 578. CATTLE – import of diseased may be forbidden by States, 542, CERTIFICATES, ELECTORAL – how transmitted by electoral colleges, 701. by whom opened and how counted, 702. CHANCERY, COURT OF – established by Edward I., 127. CHARLES I., OF ENGLAND — reign of, 142–146. CHARLES II., OF ENGLAND — reign of, 146, 147. CHARTERS — of Corporations, are of what character, 829, 830, nature of municipal, 833, 834, CELARTER-PARTY, 778, CHARTER GOVERNMENT — character of in America, 192, 193, CHASE, CHIEF JUSTICE – on limits of legislative authority, 77. opinion of in Ware v. Hylton on Declaration of Independence, 234, in Texas v. White on nature of the Union, 316, impeachment of, 422. in Legal Tender Cases, on limit to use of taxing power, 493, 944 INDEX. References are to pages. CHECKS AND BALANCES, SYSTEM OF – object of described, 93, 94. Burke on, 93, 94. Calhoun on, 94. in government of United States, 100, 101. advantages of, 101. CEIIEF JUSTICE – presides over Senate in impeachment trials, 409. CHINESE – *. power of Congress over commerce applies to migration of, 552. CEIISEIOLM v. GEORGIA — how influences eleventh amendment, 307. CHOATE, RUFUS— on nature of States and United States, 314. CEIRISTIANITY – g influence of upon politics, 14–21. influence of on growth of free institutions, 133. . CHURCH, ENGLISH – how founded by Henry VIII., 137. strengthened under Edward VI., 139. attacked by Mary, 139. recovers old position under Elizabeth, 140. attitude of toward James I. of England, 141. how tends to check power of House of Commons, 171. CITIES — growth of charters of, 120. rights of, how protected by Magna Carta, 121. CITIZEN — who is, of State in legal controversies as to jurisdiction, 792–795, corporation is, of State which created it, 793–795. status of in jurisdictional questions is how established, 796, 797. controversies between, of one State and a State fall under jurisdic- tion of United States, 761. controversies between, of different States fall under jurisdiction of United States, 761. CITIZENSHIP- ' - how defined by fourteenth amendment, 343–848. meaning of, 845. decisions in sundry cases on, 345, 346. defined by fourteenth amendment, 851. immunities belonging to, etc., may not be abridged by States, 852– 854, INDEX. *- 945 References are to pages. CIVIL OFFICERS — meaning in Constitution, 413, 414. CIVIL SERVICE LAW – described, 742, 743. CIVIL WAR — nature of, 340, CLAIMS OF THE UNITED STATES – provisions of Constitution on, 616. CLERGY — attitude of Norman, 124. CLEVELAND, PRESIDENT— on veto of certain portions of appropriation bills, 752, CO-EFFICIENT POWER OF CONGRESS— nature of, 600. discussed, 601. necessary to render other powers effective, 601, 602, COIN — - regulation of by Virginia, 195. only kind of money Congress may furnish, 512. power of Congress to issue, 512, 513. meaning of word, 513. power over, under Articles of Confederation, 513. States may not issue, 514, Congress must furnish, 516. may regulate relative amount of metal in different kinds of, 516. is only legal tender allowed to States, 825. COLE v. LA GRANGE – opinion of Justice Gray in, on exercise of taxing power by the leg- islature, 79. COLONIAL SYSTEM — how checks power of House of Commons, 172, COLONIES, AMERICAN — position of, in American Revolution, 97. reply of, to England regarding representation, 98. unfortunate position with reference to Great Britain, 98. doctrine of independent sovereignty of each established, 194–196. original political status of, 197–200. land tenure in, as evidence of original status, 200, 201. citizenship in, 201. sovereignty in original, 202. political independence of, 203. relation to Continental Congress, 209–228. status as separate Bodies-politic, 218, 226. 60 946 INDEX. Feferences are to pages. COLONIES, AMERICAN (continued)— sovereign character of, established by action as to Declaration of Independence, 236. as embryos of the States, 238. COLONIZATION — three methods of, in America, 183. COLONY — defined by Grotius, 186, COMMANDER-IN-CHIEF — functions of President as, 716–718, COMMERCE – meaning of, discussed and defined in connection with commerce power, 523. COMMERCE POWER — of Congress, described, 519. defined by Blackstone, 519. history of, 1, 519–522. how interpreted in compact between Maryland and Virginia, 521. meaning of, 522–536. not the same as taxing power, 522. covers what, 523. extends to migration of persons in travel, 524, 525. extends to telegraph, etc., 525, 526. extends to passage of navigation laws, 527, 528. Field on object of, 528. two canons of, stated, 534. does not prevent States from inspecting products, 541. must not be so used as to destroy the reserved rights of States, 548. applies to District of Columbia and Territories, 553. also to internal trade of such regions, 553. interstate commerce commission constituted under, 553. decided inapplicable to certain slaves before civil war, 554. are improvements to rivers and harbors included by, 559. power over light-houses, etc., included in, 557. COMMERCE, POWER TO REGULATE– originally conceded to Parliament, 226. devolves on original thirteen States, 227. reserved to States under Articles of Confederation, 248. belongs to States, under Confederation, 261. “regulate ’’ commerce, defined, 526. “COMMON DEFENSE * — object of Constitution to provide for, 387. meaning of phrase, 474, interpreted by Hamilton in Report on Manufactures, 475, INDEX. 94.7 References are to pages. COMMON LAW, OF ENGLAND — Blackstone on transference of to America, 193, as modified in colonies, 194, COMMON PLEAS, COURT OF — localization of, by Magna Carta, 121. differentiated from other courts, 127. COMMONS, HOUSE OF — date of, as separate body, 125. effect of recognition of, on taxation, 126. functions of, 127, 128. attitude toward Lollards, 129. power of, injured by House of York, 130. jealousy of, toward taxing power under Henry VII, 132. contest of, with Wolsey, 132. controversy with Charles I, 142–144, unification of power in, under Charles II, 146. power of, impaired after 1688, 152, 153. analysis of powers of, 158–157. Bagehot on, 156. how controls tenure of office of ministers, 168, how controls royal prerogative, 168. inclusiveness of power of, 169, 170. influence of, how checked, 170–172. COMMONS, OF ENGLAND — attitude toward Henry VIII., 187, 138. COMMONWFALTH — defined, 1. COMMUNISM — outgrowth of paternalism, 82,83. COMPACTS — between States not to be entered into, 844, 845. CONFEDERACY — citizen of, how placed in peculiar position, 590. acts of government of, held to be null and void, 594, acts affecting private rights of persons in, valid, 594, CONFEDERATION OF CERTAIN COLONIES IN NEW ENGLAND — described, 196. CONFEDERATION, ARTICLES OF – origin of, 239, 240. adoption of, 240, 242. provisions of, 240. proposed amendment to, 240. 948 INDEX. References are to pages. CONFEDERATION, ARTICLES OF (continued)– history of, as bearing on relation of States to Union, 240, 241. signed, 243, 244. analysis of, 244-248. sovereignty, etc., retained by States under, 244-240. final judgment as to position of States under, 252. vicious character of, 256, 257. Hamilton on, 256. how originally ratified, 257, 258. views of Madison on ratification of, 258. how violated in adoption of Constitution, 270. see ARTICLES OF CONFEDERATION. CONFISCATION – how exercised by United States during civil war, 591, 592. applied only during life of offender, 592. became void after pardon, 592. operated only upon life-estate of offender, 592, 593. of captured and abandoned property, 593. CONFISCATION ACTS — - held not in conflict with fifth and sixth amendments, 681. CONGRESS — composition of, 99, 318, 393. accepts territory from Virginia (bearing on doctrine of reserved rights of States), 240, 241. adoption of bi-cameral plan for organization of, 328. powers of determined and classified, 365. principles of exercise of power of, 371-374, use of taxing power by, 373. use of power to organize the militia, 374, legislative powers vested in, 392. frequency of meeting, 426. . quorum in, according to Constitution, 427, 428, records of, 430, 431. discussion of meaning of quorum, 432, 433. adjournment of, 432–434. members, how paid, 437, 438. members, when privileged from arrest, 438–440. freedom of speech guaranteed to members of, 440, 441. members of cabinet could not be admitted to floor of, 445. taxing power corresponds to what revenue power under Articles of Confederation, 456. power to lay and collect taxes discussed, 457–470. power as to taxation compared with that of the States, 466–470, may not tax articles exported from States, 460. - INDEX. 949 References are to pages. CONGRESS (continued)— purposes for which taxes may be levied by, 470-482. may appropriate money for what purposes, 482-492. enumerated powers of, adequate, 491, 492. must use taxing power for revenue purposes only, 493-504, power of, to borrow money, etc., 509, 510. w sundry cases on legal tender power of, cited, 509, 510. has no power to issue currency except gold and silver coin, 510, 513, 514. - may coin money, etc., 512–516. has what power over banks, 516–518. power over commerce discussed, 519–558. power over commerce applies to migration of Chinese, 550. power over commerce applies to District of Columbia and to Terri- tories and includes power over internal commerce in such re- gions, 553. could not forbid importation of slaves into States, 555. Question whether contract involved in negotiable paper can be regulated by, 557. power of, to establish uniform rule of naturalization, 558, 559. power of, to establish uniform rule of bankruptcy, 559, 560. may not impair obligation of contracts except by a uniform rule of bankruptcy, 561. t power of, to coin money, etc., 563, 564, postal power of, 565–572. postal power of, under Articles of Confederation, 565, 566. power to establish post roads, 570–572. contract of, with Central Pacific, valid irrespective of constitution- ality, 571-572. power to grant copyrights and patents, 572, 573. power over inferior courts, 573. over piracy, 574. over punishment of offenses against law of nations, 575. over declaration of war, 576, 577. act of, necessary to constitute state of war, 577. power to grant letters of marque and reprisal, 578. power to raise and support armies, 578–580. over calling out militia, etc., 581. war powers under Articles of Confederation, 581, 582. power over militia, how limited, 583. .s. over seat of government, forts, arsenals, etc., 597, 598. “co-efficient power” of, 600–602. power over admission of new States, 602. nature of power of, over territory as deduced from history of orig- inal “Northwest Territory,” 605. 950 INDEX. References are to pages. CONGRESS (continued)— power to acquire new territory established by reference to history, 605–608. - duty to organize and rule the Territories, 608, 609. relation of, to Territories adjudicated upon in the Dred Scott case, 609, 610, may attach what conditions to admission of new States, 614, 615. power over treason, 621. this power how limited, 621-624. power over public acts, records, proving judgments, etc., 624–626. acts as guarantor of republican form of government in States, 637, 638. may suspend writ of habeas corpus, when, 643. has sole power to declare war, etc., 645, refuses to suspend writ of habeas corpus under Jefferson, 647. may not pass bills of attainder, ea, post facto laws, etc., 652. manner of levying direct and capitation taxes, 659. may not lay duty on articles exported by States, 659, 660, may give no preference to ports of one State, 660. appropriation by, necessary before money can be drawn from treas- ury, 661. - consent of, necessary before officers of United States can accept titles of mobility, etc., 664. members of, may accept presents, titles, etc., from foreign powers, 665. may establish no religion, may not abridge freedom of speech, etc., 667. shall not infringe right to keep and bear arms, 671, 672. incidental powers necessary to make powers of Executive effective are vested in, 694, members of, may not be presidential electors, 696, functions of, in election of President, 702–707. determines time of choosing presidential electors, 711. war power of, how related to that of President, 716–718, discussion on powers of, in connection with treaties, at time of Treaty of Ghent, 828. has power to decide what officers to be appointed by President and what to be merely nominated by him, 733, 734. Imay be adjourned by President, when, 743, 744, jurisdiction of inferior courts determined by Congress, 756, appellate jurisdiction of Supreme Court, how regulated by Con- gress, 757 scope of admiralty power of, how limited, 778, 779, powers in granting and limiting jurisdiction, 798–800. may not vest judicial power of United States in State courts, 800– 802, INDEX. - 951 References are to pages. CONGRESS (continued)— power of, to distribute jurisdiction among inferior courts, 807–810. may establish courts in the Territories and regulate them, 819, 820. power of, to coin money is exclusive, 823, 824. may revise State laws levying duties, 841. consent of, necessary to levy of duties of tonnage by States, 844. has no power under fourteenth amendment to afford affirmative protection within States, 856. cannot invade domain of State legislation under fourteenth amend- ment, 858, 859. CONGRESS, CONTINENTAL – declaration of rights by, 198. § Story on sovereign powers of, 213. failure of to pass laws, 213. nature of, seen from utterances of, 213–218. from status of delegates, 218. from action of, 218. from letter written by, 218, 219. from other circumstances, 219, 220. from financial responsibility, 220. from action as to treason, etc., 221. y attitude of, toward Declaration of Independence, 232. lack of sovereignty in, shown by action in referring Declaration of Independence, 236. source of powers exercised by, during Revolutionary War, 239. action of, as to Articles of Confederation, 240–242. evidence as to lack of sovereignty in, 241. issues letters accompanying Articles of Confederation, 242, 248, record of, as to ratification, 243, 244. asks for certain powers from the States, 259, 260. calls Philadelphia convention, 265. refers report of Federal convention to States, 268. CONGRESS, FIRST CONTINENTAL – meets, 205. nature of, 205. Story on, 205. attitude of different colonies toward, 205–208. status of delegates to, 208. views of, on its own status, 209. lack of sovereignty in, 209. nature of evidenced by its utterances, 214, 215. CONGRESS, SECOND CONTINENTAL – status of delegates to, 210. nature of, 210. 952 INDEX. References are to pages. CONGRESS, SECOND CONTINENTAL (continued)— addresses to people issued by, 210. nature of, evidenced by its utterances, 214–216. extracts from journal of 215–217, n. CONNECTICUT – º a charter government, 192, 193. becomes a State, 223. action as to Declaration of Independence, 230. first State Constitution of, 252. ratifies Constitution of the United States, 275. attitude toward First Continental Congress, 206, 207. CONQUEST, NORMAN — results of, 117–119. CONSCRIPTION ACT – constitutionality of, as passed by Confederate Congress, decided by Court of Appeals of Virginia, 579, 580. CONSTITUTION.— defined, 58. as creature of Body-politic, 60. - authority to create, rests with Body-politic, 63. different kinds of, 67. importance of care in methods of framing, 84. CONSTITUTION, ENGLISH – views of Gladstone upon, 68. Magna Carta, the first written form of, 123. status of at accession of Henry VII., according to Eſallam, 130. process of growth of, 131, 132. first fully developed by English Bill of Rights under William and Mary, 150. judgment on, 176, 177. Chatham on, 177. Webster on, 177. CONSTITUTION OF MISSISSIPPI – how adopted, 70. i CONSTITUTIONS, STATE– paramount authority of, established in Hawkins v. Kamper, 63. in Marbury v. Madison, 64. how originally framed and ratified, 69. recent methods of adopting, 69. CONSTITUTION OF THE UNITED STATES — Scope of, how limited, according to Marshall, 64–66. a written instrument, according to American precedent, 68. binding upon all States of the Union, 70. º INDEX. 953 References are to pages. CONSTITUTION OF THE UNITED STATES (continued)– origin and ratification of, 71. how limits legislative power, 100. germ of fundamental doctrine of, found in Magna Carta, 122, how differs from English as to taxing power, 155. two schools of thought concerning, 178, 179. five eras in history of, 180. questions as to nature of, 258. by whom ordained, 258. history of adoption of, 258–337. formulation of a, favored by convention of New England States, 259. advocated by Washington, 262. on need for regulation of commerce by Congress, 263. recommended by Federal convention, 266-268. referred to States, 268. views of sundry members of Federal convention on ratification of, 267. Madison on adoption of, 270. on ratification of, 271, 272. work of Federalist regarding, 271. nature of, according to Hamilton and Madison, 271, 272. how finally ratified, 274. history of ratification by the several States, 274, 281. only valid so far as ratified by the several States, 281–287. reservation of certain powers to States desired by Federal conven- tion, 281, 282. position of, if not ratified by all the States, 286. Story on interpretation of preamble to, 288. preamble to, explained, 289. provisions of, as to ratification of, 290. Patrick Henry on preamble to, 291. Edmund Pendleton on preamble to, 292. Henry Lee on preamble to, 292. Madison on nature of, 292. Chief Justice Marshall in McCulloch v. Maryland on nature of, 294–296. * meaning of “United States’’ in preamble to, 296. evidence drawn from language of on Sundry subjects, as to who ordained Constitution, 301–304. how affected and interpreted by tenth amendment, 304–307. by eleventh amendment, 307. propositions to extend scope of, how rejected, 308. opinion of Sundry persons on such propositions, 308. Morris on nature of, 309. * 954. INDEX. References are to pages. CONSTITUTION OF THE UNITED STATES (continued)– Madison on nature of, 309, 310. Hamilton on nature of, in Federalist, 310–312. rival plans for, in Federal convention, 326, 327. mode of election of members of Congress accepted by Federal con- vention, 328. how affected by civil war, 338–348. three theories as to nature of, in connection with secession, 338– 340. nature of, not changed by civil war, 340, 841. made permanently binding by civil war, 347, 348. general analysis of, 349. how differs from British, 350, 351. difference between, and Constitutions of the States, 353, 354. evidence as to method of construing, 356–365. canons of construction of, 365. supremacy of, extends over what, 376–378. unconstitutionality of acts, how determined under, 376–380. preamble analyzed, 381–389. nature of preamble, 381, 382, Story on preamble, 382. by whom ordained, 382. object of, as to union, 382. how an improvement over Articles of Confederation, 383, 384, object of, as to establishing justice, 384. as to domestic tranquillity, 385, 386. as to common defense, 887. as to general welfare, 387. as to securing liberty, 388, 389. how influenced by Montesquieu, 389–391. separation of departments under, 391. provides against office-holding by members of Congress, 391. how violates maxim of Montesquieu, 392. vests legislative powers in Congress, 892. provisions as to House of Representatives, 393–400. provisions as to Senate, 400–407. on impeachment, 408-423. on meeting of Congress, 426. on quorum, 427. --se on power of Houses of Congress over own members, 428–430. on records of Congress, 430, 431. on yea and nay voting, 431, 482. on adjournment of Houses of Congress, 433, 434. on payment of members of Congress, 437, 438. INDEX. 955 | References are to pages. CONSTITUTION OF THE UNITED STATES (continued)– On privileges of members of Congress as to arrest, 438–440. on freedom of speech in Congress, 440, 441. provisions as to office-holding by members, 441–443. provisions as to revenue bills, 446. on veto power, 452–456. on power of Congress to lay and collect taxes, 457–470. on power of Congress “to pay the debts and provide for the com- mon defense and general welfare,” 470–482. use of taxing and appropriating power under, 482–508. defective method of apportioning direct taxes under, 505. operation of tax mechanism under, how hampered, 506—508. on power to borrow money, etc., 509–512. on power to coin money, etc., 512-516. grants no power to charter banks, 516–518. on commerce power of Congress, 519. provisions as to slave trade, 524, 525. on privileges and immunities of citizens in relation to the com- merce power, 530. on uniform rule of naturalization, 558, 559. on bankruptcy, 559, 560. on coinage of money, etc., 563, 564. on postal power of Congress, 565. on copyrights and patents, 572, on inferior courts, 573. on piracy, 574. - on offenses against law of nations, 575. on declaration of war, 576, 577. on letters of marque and reprisal, 578. on raising and Support of armies, 578. on calling out militia, 581. on power of Congress over seat of government, etc., 597, 598. on “co-efficient power” of Congress, 600, 601. on admission of new States, etc., 602–615. on “claims of the United States,” etc., 616. on treason and punishment thereof, 618–621. on “full faith and credit’” of public records, etc., 624–626, on privileges and immunities of citizens, 621. on extradition and fugitives from service or labor, 629, guarantees republican form of government, 634. on protection of States against invasion, 640, against domestic violence, 640. on suspension of writ of habeas corpus, 643. on bills of attainder and ea post facto laws, 652, 956 Af INDEX. References are to pages. CONSTITUTION OF THE UNITED STATES (continued)– on method of levying direct and capitation taxes, 659. forbids levy of duties on articles exported by any State, 659. forbids preference to ports of one State over those of another, 660. on withdrawal of money from treasury, 662. on non-grant of titles of nobility, 664. first amendment to, 667. second amendment to, 671. third amendment to, 672. fourth amendment to, 672. fifth amendment to, 673. sixth amendment to, 678, 679. seventh amendment to, 682. eighth amendment to, 686. , ninth amendment to, 687. tenth amendment to, 689. discussion of provisions on nature of Constitution and election of executive, 693–701. twelfth amendment to, 701, 702, 706, 707. on qualifications, etc., of executive, 707–714, on oath of President, 715. on investiture of executive power, 716. - on division of war power between legislative departments, 716–718. on power of President to ask for opinions of executive officers in writing, 718, 719. on power of President to grant pardons and reprieves, 719. on making of treaties, 720. on appointing power of the President, 732. on power of President to fill vacancies, 740. not clear regarding appointive power, 742. on President's duty to give information and recommend measures to Congress, 743. on President’s duty to adjourn Congress, 744. on duty of President to take care of execution of the laws, 748. on impeachment as a means of removing faithless officers, 748, 749. on organization of judicial department, 753. on jurisdiction of Supreme Court, 757, 767–769. on judicial power of the United States, 757, 758. cases arising under, fall within jurisdiction of United States why, 763–767. on cases affecting ambassadors, etc., 770–772. on admiralty and maritime jurisdiction, 772. on jurisdiction of Federal courts, 784–786. eleventh amendment to, 786–792. INDEX. - 95'ſ References are to pages. CONSTITUTION OF THE UNITED STATES (continued)— forbids States to make treaties, 822. or grant letters of marque and refusal, 823. or coin money, 823. or emit bills of credit, 824, or make anything but gold and silver coin a tender, 825, or pass any bill of attainder, etc., 827. or grant titles of nobility, 840, 841. or lay duties except for executing inspection laws, 841-844. or keep troops or ships of war, etc., 844, 845. - or enter into compact with another State, etc., 845, 846. thirteenth amendment to, quoted and discussed, 848–850. fourteenth amendment to, discussed, 850–874, CONSTITUTION OF VIRGINIA — origin and history of, 70. adopted, 225. nature of, 225. first State, 255, 256. CONTRACTS — regulation of, proper function of legislative department, 75. integrity of, injuriously affected by exercise of legal-tender power, 512. laws impairing, may not be passed by States, 827. kinds of, 828. “obligation ” of, means what, 886–840. CONTROVERSIES TO WIFIICH THE UNITED STATES SHALL BE A PARTY (see UNITED STATES). CONVENTION, CONSTITUTIONAL – functions of, 68, 69. character as representative body, 72. CONVENTION, FEDERAL, OF 1787– acts of, how ratified, 69. see PHILADELPHIA CONVENTION. CONWICTS — may be debarred, by impeachment, from holding office under United States, 415. COOLEY, JUDGE — on discriminating taxation, 78, 79. on distribution of powers between the States and the United States, 362—364, on unconstitutionality, 879. 958 INDEX. References are to pages, COPYRIGHTS AND PATENTS — power of Congress to grant, 572, 573. defined, 573. do not include trade-marks, 573. are subordinate to State laws forbidding use or sale of articles re- ferred to, 573. CORFIELD v. CORYELL – “privileges and immunities” defined in, by Justice Washington, 532. privileges and immunities of citizens explained in, 627. CORPORATIONS – nature of, 829, 830. charters of, are contracts with State, and may not be invalidated unless such power is reserved, 830, 831. charters of eleemosynary, are irrepealable, 832. nature of municipal, 832, 833. fall within scope of fourteenth amendment, 863, 864. may be specially taxed despite fourteenth amendment, 864, 865. CORRUPTION OF BILOOD — does not follow from conviction of treason, 621-624. COUNSEL– right of accused to, guaranteed by sixth amendment, 681. COUNTERFEITING — power of Congress to punish, 564, 565. COUPONS — on State bonds, not bills of credit, 825. States may not impair own obligations to receive, 829. COURT OF CILAIMS — establishment and functions of, 783, 784, COURTS (see INFERIOR COURTS). COURTS-MARTIAL — nature, jurisdiction and functions of, 818, 819. CRANMER — o work in English reformation, 139. CRIMES — no one to be held to answer for certain, except on presentment, in- dictment by grand jury, etc. (fifth amendment), 673. “capital,” are what, 673. “infamous,” are what, 674. how far punishable under admiralty jurisdiction, 779–781. See HIGH CRIMES AND MISDEMEANORS, INDEX. 959 References are to pages. CRIMINAL PROCEDURE – meaning of “due process of law'” as mentioned in fourteenth amendment, in connection with, 871. CROMWELL — protectorate of, 146. CURTIS — on lack of interdependence of the colonies, 200. CUSHING, ATTORNEY-GENERAL — opinion of, that distribution of incendiary mail matter may be pro- hibited by States, 569, 570. D. DARTMOUTH COLLEGE CASE – evidence of, on State sovereignty, 251, 252. DEBTOR — land of, how protected by Magna Carta, 120. DEBTS — power of Congress to pay, see PAY THE DEBTS AND PROVIDE FOR THE GENERAL WELFARE. DECLARATION OF INDEPENDENCE – theory of human equality in, 4, 6. attitude of, toward government, 13. on relation of man to government, 45. on nature of government, 353. DECLARATION OF RIGHTS — evidence of, on nature of Continental Congress, 211. framed in 1765, 198. DECLARATION OF RIGHTS OF 1688 — basis of constitutional monarchy, 68. DECLARATION OF RIGHTS OF WIRGINTA – position of on Suffrage, 90. DE DONIS — principles of statute of, 126. DELAWARE — attitude toward First Continental Congress, 207. first State Constitution of, 252. DELEGATED POWERS — characteristic of government of the United States, 691, 692. DE LOLME – on hereditary character of English monarchy, 163. 960 - INDEX. 0. References are to pages, DESPOTISM – strength of, 50, 51. agencies of, 50–52. DE TALLA GTO NON CONCEDENDO – statute of, controversy over under Charles I., 142, 143. principles of statute of, 126. triumph of, 169. DICKINSON, JOHN — signs call for Philadelphia convention, 264. DIRECT TAX (see TAx). DISABILITY (see INABILITY). DISTRICT OF COLUMBIA — power of Congress to govern, 598–600. citizenship in, 600. DOMESTIC VIOT_ENCE – States guaranteed against, 640. Madison on nature of, 640, 641. President decides as to what is the legitimate government of a State, 641, 642. DRAKE BILL — takes away power of Supreme Court to hear habeas corpus, 818. DRED SCOTT v. SANDFORD — decision of, on citizenship, 343. bearing of, on relation of Congress to the Territories, 609, 610, HDRUMMERS — may be taxed by States under what conditions, 543, 544, IDUE PROCESS OF LAW — means what, 868. working and interpretation of, 869–874. in connection with right of eminent domain, 869, 870, in connection with criminal procedure, 871. DUNMORE, GOVERNOR OF VIRGINIA — dissolves Virginia Assembly, 204, re-assembles Assembly in 1775–76, 223, DUTIES — levied by Congress, 457. not defined in Constitution, 457. probable meaning, 459, 460, must be uniform, 461. kinds of, 463. - may not be imposed on articles exported from States, 465, protective, unconstitutional, 498–501. INDEX. ' 961 References are to pages. DUTIES (continued)— may not be laid on articles exported from States, 659, 660. on imports and exports may not be laid by States, except for exe- cuting inspection laws, 841, 842. when laid, proceeds shall be for use of United States, 841. State laws levying, are subject to revision by Congress, 841. of tonnage, may not be laid without consent of Congress, 844. E. EAST INDIA COMPANY — action of Virginia Assembly against, 204. EDWARD I., OF ENGLAND — policy of, 124, 125. EDWARD IV., OF ENGLAND — share of Commons in legislation under, 125. injures House of Commons, 129. EIGHTH AMENDMENT— quoted and discussed, 686, 687. ELECTIONS — freedom of, established in 1688, 152, ELECTORAL COMMISSION BILL – nature of, 703. constitutionality of, 704. ELECTORS — qualification of, for House of Representatives, 394. ELECTORS, PRESIDENTIAL — functions of, 695, by whom appointed, 695. number of, 695, 696. qualifications of, 696. how selected, 696, 697. meet where, 700. vote how, and for whom, 700–702. mode of voting for President and Vice-President, how and why changed by twelfth amendment, 701, 702. certificates of votes of, to whom transmitted and by whom opened and counted, 701, 702. number of voters of, requisite to election of a President, 704–709. unexpected working of system, 708–710. time of choosing determined by Congress, 711. ELEVENTH AMENDMENT – Chisholm v. Georgia, how influences, 307. quoted and discussed, 786–792. 61 962 INDEX. References are to pages. FLIZABETH, OF ENGLAND – effects of reign of, 140, 141. ELLSWORTH — on ratification of acts of Federal convention, 267. ' . On co-equality of States in Senate, 330. EMINENT DOMAIN, RIGHT OF — can be employed only for public objects, opinion of Justice Gray, 79. conditions of exercise of, 677, 678. how affected by fourteenth amendment, 862, 863. meaning of “due process of law” under exercise of, 869, 870. 18NGLAND — views of Gladstone on Constitution of, 68. EQUALITY, HUMAN — current doctrine of, refuted, 4–7. explained in true sense, 8, 9. in property, not essential to doctrine of natural right, 33, 34. in political rights, does not imply equality in exercise of political power, 88. “EQUAL PROTECTION OF THE LAWS”— in fourteenth amendment, discussed, 871-874, EVESHAM – battle of, 124. EXCHEQUER, COURT OF – established by Edward T., 127. EXCISE — * not defined in Constitution, 457. probable meaning, 460. must be uniform, 461, 463. kinds of, 463. EXECUTIVE — relation of to judiciary, 102. EXECUTIVE DEPARTMENT— composition of, 320, 321. evidence from composition of, as to nature of the Union, 322. described in Article II of the Constitution, 349, discussed, 693–752. history of discussion in Federal convention on organization of,697– 700. EXECUTIVE, ENGLISH- g analysis of powers of, 162–165. EXECUTIVE FUNCTION.— as one of three functions of government, 73,74, INDEX. 963 References are to pages. EXECUTIVE OFFICERS OF UNITED STATES — opinions of, may be required in writing, 718, 719. EXECUTIVE POWER — wested in President of the United States, 693. nature and scope of in the United States, 693, 694, FXPLOSIVES — right of citizens to mix, for sale, adjudged constitutional in United States v. Dewitt, 503. EXPORTS — debates in Federal convention as to duties on, 335–337. no duty to be levied on, from States, 659, 660. EX POST FACTO TAW — passage of, forbidden, 652. history of clause concerning, 652, 653. defined, 655. ; nature of, 656, 657. applies to what, 657–659. may not be passed by States, 827. EXPULSION — may be practiced against own members by both Houses of Congress under what conditions, 428, 429. EXTRADITION — principles of, 629–631. F. “FAITH AND CREDIT' OF RECORDS, ETC.— language of Constitution as to, shows States were original sover- eigns, 303. of each State guaranteed in every other State, 625–627. FEDERAL CONVENTION (see PHILADELPHIA CONVENTION). |FEDERAL COURTS — - relations between, and courts of the States, 764, 765, 767–769, 797– 802, in dealing with cases on account of character of parties, administer law as State courts would do, 802—804, principles of removal of cases to, from State courts, 810–815. method of procedure in some such cases, 813–815. FEDERALIST – origin of, 271. Madison in, on nature of Constitution of United States, 294, Madison and Hamilton in, on nature of Constitution, 310–312, 964 INDEX, References are to pages. , FEDERALIST (continued)— - Hamilton in, on powers of the States, 358. on use of taxing power, 467. argument in, on “common defense and general welfare * and pow- ers of Congress, 478. doctrine of, on objects for appropriations, 485, 486. Madison in, on meaning of “privileges and immunities of citizens,” 531, 532. Madison in, on change introduced by Constitution as to powers of Congress over naturalization, 558. Hamilton in, on limits of State and Federal authority over natural- ization, 559. Hamilton in, on checks upon power of President as commander-in- chief of army, 579. Madison in, on guarantee of republican form of government, 636. Hamilton in, believes bill of rights out of place in Federal Consti- tution, 687, 688. on removals from office, 734, on reception of ambassadors by President, 744, 745. FEDERAL POWER – demand for limitations on, 642, limitations on, 642–652. FEDERAL SYSTEM OF UNITED STATES — balance of power between two branches of Congress under, 99. FEDERAL THEORY OF UNION – cases based on, 587–597. FERA. NATURA – doctrine of, 27–32. FEUDALISM – effects of, 119. FIELD, JUSTICE– in Legal Tender Cases on constitutional construction, 361. On object of granting commerce power to Congress, 528. FIFTH AMENDMENT – quoted, 673. discussed, 673–678. FILMER, SIR ROBERT – doctrines of, 19. advocates paternalism, 81. criticism of ideas of, 81. FINES — excessive, not to be imposed, 686. INDEX. - 965 References are to pages. IFIRST AMENDMENT – quoted and discussed, 667–671. FISCAL ACTION OF GOVERNMENT - defined, 75. FISKE, JOHN — on methods of conquest, ancient and modern, 87. FLETCHER v. PECK — opinion of Marshall in, as to limits of government authority, 77. FLORIDA — treaty acquiring, discussed in connection with treaty-making power, 731. FOURTEENTEI AMENDMENT - provisions of, on citizenship, 343–345. discussed, 850–874. |FOURTH AMENT)MENT – quoted, 672. history and origin of, 672, 673. ERANKLIN — author of plan for union of colonies in 1753, 197. proposition of, for perpetual union of colonies, 285. on need of compromise as to co-equality of States in Senate, 330,831. FREEDOM — extent and limits of personal, 20–25. kinds of, 24–27. instinct of, how related to social instinct, 39–41. duty of government to secure, 75, 76. FREEDOM OF PRESS - guaranteed by first amendment, 667. FREEDOM OF SPEECH – guaranteed by first amendment, 667. FREEMAN — on Aryan civilization, 108. FUGITIVE SLAVE ACTS (see SLAVES). G. GARFIELD — objects to use of foreign matter in appropriation bills, 451. GENERAL WELFARE- object of Constitution to promote, 888. meaning of phrase, according to Hamilton, 475, according to Monroe, 476. - according to Madison, 476, 477. See WELFARE, 966 INDEX. References are to pages. GEORGE I., OF ENGLAND — nature of Parliament under, 153. GEORGE III., OF ENGLAND — Grenville act passed under, 203. GEORGIA— evidence drawn from case of, as to nature of Continental Congress, 218. first State Constitution of, 253. ratifies Constitution of the United States, 276. GERMANIA, OF TACITUS — description of Teutons in, 110. GHENT, TREATY OF – discussion of treaty-making power in connection with, 728. * GIBBONS v. OGDEN — Marshall in, on relation of States to the United States, 360, 361. Marshall in, on division of taxing power between States and Con- gress, 468. on use of taxing power by Congress, 481. on interpretation of commerce power of Congress, 522, 523. on line of demarcation between Federal and State powers, 536– 538. opinion of Chief Justice Marshall in, on position of States, 251. GILBERT, SIR HUMPHREY — discoveries of, 181. GLADSTONE – views on British Constitution, 68, 350. GLANVILLE, CHIEF JUSTICE – work of, on common law, 120. GOD — man’s relation to, 7–20. as author of Body-politic, 48. has provided no special form of government, 58. relation to Society and government, 59. GOVERNMENT – distinguished from Body-politic, 2. earliest form of, 36. limitations on exercise of power of, 45. how to assist in social reform, 49. limits of interference of, 59. relation to God and society, 59. as agent of Body-politic, 60. INDEX. 967 References are to pages. GOVERNMENT (continued)— wltra vires action of, opposed to doctrine of sovereignty, hence void, 62. three kinds of power necessary to, 74. limits to power of, 75, 106. modes of abuse of power of, 76, 77. two policies of, 80. three kinds in American colonies distinguished, 192. See SEAT OF GOVERNMENT. GOVERNMENT OF THE UNITED STATES — Marshall on authority of, in Marbury v. Madison, 64. subordination of, to Body-politic the foundation of American con- stitutional law, 66. GRANT, PRESIDENT— vetoes resolutions of Congress as to communications between the TJnited States and certain foreign countries, 749, 750. on veto of certain portions of appropriation bills, 751, 752. GRAY, JUSTICE— opinion in Cole v. La Grange, on exercise of taxing power, 79. GREAT BRITAIN — position of, as to American Revolution, 98, 99. checks and balances in parliamentary system of, 99. GREAT COUNCIL — composition of, under William I., 117. membership, how regulated by Magna Carta, 121. power over taxation recognized by Magna Carta, 123. GREECE — pre-eminent among Aryan nations, 108. GRENVILLE ACT – effect of, 203. GROTIUS — definition of colony, 186. . GUADALUPE-HIDALGO, TREATY OF- discussed in connection with treaty-making power, 781, GUIZOT — definition of political legitimacy, 42. H. HABEAS CORPUS, WRIT OF – origin of, 147. when finally established, 161. Hallam on, 161. { \ 968 INDEX. References are to pages. HABEAS CORPUS, WRIT OF (continued) — when and by whom to be suspended, 643–645. history of, in England, 643, 644. President has no power over, 645, 646, Story and Tucker on, 646. Marshall on, 647. suspension recommended by President Jefferson, 647. power to suspend, usurped by President in 1861, 648. cases on usurpation of power by President, to suspend, 648–651, States not forbidden to suspend, 651. object of constitutional provisions as to, 651, 652. exercise of appellate jurisdiction of Supreme Court by use of, 815, 816. BIALLAM!— - on status of British Constitution in 1486, 130. on jealousy of Commons toward exercise of taxing power, 132. on Mutiny Bill, 160. FIAMILTON.— rule proposed by, for constitutional construction, 361. HAMILTON, ALEXANDER — on ratification of Constitution of the United States, 271, 273, on nature of Constitution, 310–312. on legal status of the States in suits, 312, 313. on “necessary and proper” laws, 366, 367. on use of taxing power, 467. on meaning of common defense and general welfare, 475, 477. objections to reasoning of, on common defense and general welfare, 480–482. on limitations to powers of Congress, 492. in Federalist on limits of State and Federal authority over naturali- zation, 559. in Federalist on check to power of President over army, 579. on power of States over militia, 585, 586. believes bill of rights out of place in Constitution, 687, 688. anticipations of, on working of presidential electoral system, 708, 709. on treaty-making power, 721–723. IHAMPIDEN — position of, on ship money, 96, 144. HARE – general position on the Constitution. 179. HARLAN, JUSTICE – - on distinction between State and Federal powers, 556. INDEX. 969 References are to pages. HARRISON, BENJAMIN — at Williamsburg Congress, 205. delegate to Continental Congress, 205. HAWKINS v. KAMPER – establishes authority of State Constitution, 63. of Constitution of Virginia, 70. EIAYES — presidential contest with Tilden, 702–704. HENRY I., OF ENGLAND — grants of rights by, 120. HENRY II, OF ENGLAND- grants of rights by, 120. HENRY III., OF ENGLAND – charter granted by, provisions on mortmain, 122. policy of, 124. wars of, 124. HENRY VII., OF ENGLAND — accession of, marks beginning of modern history, 129. grants commission to John Cabot, 181. HENRY VIII., OF ENGLAND — attitude of toward reformation, 136. objects of, in breaking with the pope, 137. HENRY, PATRICK — at Williamsburg Congress, 205. delegate to Continental Congress, 205. on preamble to the Constitution of the United States, 201. HEPTARCHY, SAXON.— constitution of, 46. BHIGH CRIMES AND MISDEMEANORS — meaning of, discussed, 416–420. HOLT, LORD — on colonization, in Smith v. Brown, 184. HOUSE OF COMMONS.– place of in constitutional system of England, 99. see COMMONS, HOUSE OF. EIOUSE OF LORDS.– how preserved, 99. character of, 127. See LORDS, EIUNDRED — as a Saxon institution, 114, 970 * INDEX. fêeferences are to pages. I. IMPEACHMENT— power of House of Commons over, 155. as a means of removing faithless officers, 748, 749, power of, belongs to House of Representatives, 399. power to try, belongs to Senate, 408. Senate as body for trial of, 408,409. who is presiding officer in cases of, 409. judgment in case of, extends how far, 410. process of, may be applied to what officers, 411. in what cases employed, 411. acquittal does not excuse from ordinary trial, 411. is a political proceeding, 411, 412. English differs how from American process, 412, who are subject to, 412. senators not subject to, 413. representatives not subject to, 414, to whom theoretically applicable, 414. object of, 414, 415. what offenses subjects for, 416–423. history of, in England, 420, 421. in the United States, 421–423. procedure in cases of, 423–425. IMPERIUM — Teutonic idea of, 104. IMPORT DUTIES — power to lay, asked for by Continental Congress, 260, IMPOST – levied by Congress, 457. not defined in Constitution, 457. probable meaning, 460. kinds of, 463. must be uniform, 463. ' IMPRESSMENT – power of exercised by Virginia, 195. INABILITY OF PRESIDENT – consists in what, and is how determined, 712–714. INCOME TAX— decision regarding, in 1894, 462, 463, INDEPENDENCE — Secured by colonies, 249. terms of, 249. JNDEX. 971 References are to pages. INDEPENDENCE, DECLARATION OF- point of view of, 225. Story on nature of, 227. Jefferson on, 227—229. moved by Lee, 227. arguments for, 228, 229. passage postponed, 229. reported by Jefferson, 229. adopted, 229, 230. action of several colonies as to, 230, 231. nature of, 231. relation of colonies to, 231, 232. language of, as indicating its own status, 233. INDIANS — commerce with, to be regulated by Congress, 519, 558. not citizens of United States, under fourteenth amendment, unless naturalized, 559. INDIVIDUALISM – as a government policy, 80. INFERIOR COURTS — power to establish, 573. judicial power partly vested in, 755. jurisdiction determined by Congress, 756. number and organization of, 756, 757. possible modes of attaining uniform interpretation through the, 764, 765. have concurrent jurisdiction over cases affecting ambassadors, etc., 771, 772. power of Congress to distribute jurisdiction among, 807–810. INJURIES, MARITIME, 778. INQUIRY — *ºr right of Houses of Congress to make, secured how, 446. INSOLVENCY — defined, 560. INSPECTION LAWS — States may levy duties to carry out, 841. INSURRECTION (see Revolution). . INTERSTATE COMMERCE — how to be regulated by Congress under the Constitution, 528–530. power of Congress to regulate, not commensurate with power over foreign commerce, 583. may not be taxed, as such, by States, 545. 972 \ INDEX, IReferences are to pages. JNVASION — States guaranteed by United States against, 640. IREDELL, JUDGE– in Penhallow v. Doane's Administrator, on early relation of States to Congress, 235. IRELAND, HOME RULE IN- contest for, based on what, 92, 93. IRON-CLAD OATH – cases regarding, 653, 654, J. JAMES I., OF ENGLAND — reign and character of, 141, 142. JAMES II., OF ENGLAND – reign of, 148. JEFFERSON, THOMAS — on relation of States to the Union, 262, on nature of the Union, 317. recommends suspension of writ of habeas corpus, 647. draws act for religious freedom, 668. contest with Burr, 701, 702, first to send written messages to Congress, 743. JEOPARDY OF T.IFE AND LIMB- no one shall twice suffer, for same offense, 675, 676, JOHN, KING, OF ENGLAND — summons first Parliament, 123, 124. JOHNSON, DR.— on co-equality of States in Senate, 830. JOHNSON, JUSTICE – on Scope of bills of attainder clause, 656. JOHNSON v. MCINTOSH – Chief Justice Marshall in, as to right of United States to American continent, 181, 182. JOHNSON, PRESIDENT – impeachment of, 422. JUDGE – how far may express opinion on facts to jury, 685, 686. duty under Constitution, 378. INDEX. 973 References are to pages, JUDICIAL DEPARTMENT — evidence from, as to nature of the Union, 321. described in Article III of the Constitution, 349. members of, cannot be members of Congress, 391. may hold office under executive department, 392. discussed, 753–820. is to be separate from other departments, 753. includes what, 755, 756. has no right to exercise any political power, 816. Cases of this, cited and discussed, 817, 818. JUDICIAL FUNCTION — as one of three functions of government, 73, '74, JUDICIAL POWER OF THE UNITED STATES — by citizens of those States, 786, 787. includes suits by States against citizens of other States, 778. States as stockholders may be included under, 788. includes appeals, by persons convicted of crime, from State courts, 788. includes no power over courts-martial, 818. nature of, 757, 758. extends to what cases, 758–760. extends to cases in law and equity both at common law and in chancery, 769. does not extend to cases begun by citizens of a State against an- other State, 786. JUDICIARY — of United States, how checks legislative, 100. function of, in the several States, 101. must be separate from legislative and executive, 102. power of, how affected by eleventh amendment, 307. JUDICIARY, ENGLISH – history and mechanism of, 173–175. JURISDICTION — retained by the States under Articles of Confederation, 244-246. provisions of Constitution on, show sovereignty originally resident in States, 302, 303. JURY — right to trial by, guaranteed by sixth amendment, 679. right to trial by, extends to what crimes, 681. right of trial by, to be preserved in suits where value in contro- versy exceeds $20,682. facts tried by, not to be re-examined except according to rules of common law, 682, 683. 974 INDEX. References are to pages. JURY (continued)— cases on submission of suits to trial by, 684. laws concerning constitution of, etc., how affected by fourteenth amendment, 871-874. JURY, GRAND — indictment by, necessary to hold persons for certain crimes, 673,674. exceptions to foregoing requirement, 674, 675. JURY SYSTEM – origin of, 122. principle of trial by, established in 1688, 152. JUS DIVINUM REGUM — shattered by civil liberty, 16. maintained by Filmer, 19. JUSTICE – free administration of, how secured by Magna Carta, 121. object of Constitution to establish, 384. JUSTINIAN — on jural right, 26. JUTES — original home of, 112. K. RAMPER v. HAWKINS (see HAWKINS v. KAMPER). EILBOURN v. THOMPSON – f modifies decision in Anderson v. Dunn (g, v.), 437. decision, how affects guarantee of freedom of speech, etc., in Con- gress, 441. KING- functions in Saxon commonwealth described, 117. RING'S BENCH, COURT OF – when first established, 127. L. LA GRANGE v. COLE (see CoLE v. LA GRANGE). LAMARTINE – action in French Revolution of 1848, 43. LAND — inheritance of, in Virginia, 200. claims to, under grants of different States to citizens of same State, to be adjudicated in Federal courts, 796, 797. INDEX. 975 References are to pages. LAND BILLS.– not included under revenue bills, 451. TAW — defined, 2, 73. duty of, to secure personal rights, 75. whence derived by Teutonic peoples, 103, 104. LAW OF NATIONS — power to punish offenses against, 574, 575. LEE, GEN. HENRY — on preamble to Constitution of the United States, 292. LEE, RICHARD HENRY — at Williamsburg Congress, 205. delegate to Continental Congress, 205, moves Declaration of Independence, 227. IEGAL TENDER — no power in Congress to bestow quality of, 509, 510. use of, prohibited to States, 518–515. LEGAL TENDER CASES — Field in, on constitutional construction, 361. Chase in, on limit to use of taxing power, 493. LEGISLATIVE DEPARTMENT — composition of, 318–320. evidence of, as to nature of the Union, 320. described in Article I of the Constitution, 349. power of, vested in Congress, –. importance of, 75. necessary powers of, 75–78. how limited by Constitution, 100, , , Montesquieu on, as related to judiciary, 102. maxims for construction of, 104. LEGISLATIVE FUNCTION – as one of three functions of government, 73, 74, T.EGISLATOR — duty under Constitution as to legislation, 380. LEGITIMACY — as basis of revolution, 42. LEICESTER, EARL OF — contest with Henry III, 124. LENOX — obtains charter for Massachusetts, 199. 976 INDEX. ſ 3. Feferences are to pages. LIBERTY — defined, 9. analyzed, 24, 25. duty of man to sustain, 34. relation of, to government, 35. relation to other social facts, 43. increase in demands of, 50. how to be safeguarded, 85. protection to personal, in Magna Carta, 121. provisions for personal, in English Bill of Rights, 152. object of Constitution to secure, 388. may not be taken from individual without due process of law, 676. LICENSE — to carry on business cannot be granted by Congress, 552, LIENS, MARITIME, 778. LIFE – may not be taken without due process of law, 676, LIFE, LIBERTY AND PROPERTY – States may not deprive of without due process, 854, LIMITATIONS, STATUTE OF – not repugnant to fourteenth amendment, 868. LINCOLN, PRESIDENT— on relation of States to the Union, 237. ' LIQUOR – conflict between State and Federal authority as to traffic in, dis- cussed, 546—549, prohibition of manufacture for sale as beverage within a State is valid, 546, 547. ſº importation into a State may not be forbidden, 547. manufacture for export from State may not be forbidden, 548. LOAN ASSOCIATION v. TOPEKA — opinion of Justice Miller in, on government interference in distri- bution of wealth, 78. Miller in, on limit to use of taxing power, 498–495, LOCKE – views on the State, 44. locates sovereignty in the people, 61. LOLLARDS — persecution of, 128. Commons object to persecution of, 129. I/ONG PARLIAMENT – demands of, 145. INDEX. º º 977 References are to pages. LORDS, HOUSE OF – composition of, 157. functions of, 157, 158. action toward Mr. Gladstone, 158. change in nature of, since Reform Bill, 158. provisions of, as to bills of supply, 159. claim of, to power over executive, 162. , how checks power of House of Commons, 171. until recently supreme appellate tribunal, 175. LOUISIANA — character of migration into, 113. LOUISIANA TREATY — discussed in connection with treaty-making power, 780, 731. LUTEIER — work of, 132. IM. MADISON – on form of government in Athens, 86. on ratification of the Confederation, 258. proposes Annapolis convention, 264. description of Philadelphia convention given by, 266. on regulation of commerce by Congress, 268. joint author of Federalist, 271. on nature and ratification of Constitution, 271, 272. on need for more authority than in Articles of Confederation, 297. on nature of Constitution of United States, 310. on co-equality of States in Senate, 329. on relation of States and the United States, 359, 360. on power to pay the debts and provide for the general welfare, 471, 472, 476. f on appropriations and unenumerated powers, 485. on debates of Federal Convention on chartering banks, etc., 517, 518. on meaning of “privileges and immunities” of citizens, 531, 532. on change introduced by Constitution as to power of Congress over maturalization, 558. on power of Congress to construct post-roads, 571. on power of States over militia, 586, 587. on need for guarantee of republican form of government, 636. on subversion of State governments and furnishing of aid by United States, 640, 641. on limits to treaty-making power, 726. transmits treaty of Ghent and asks for legislation, 728, 62 978 INDEX. References are to pages. MAGNA CARTA — origin of, 119. predecessors of, 120. analysis of, 120–124. confirmation and violation of, 124. controversy over 39th chapter of, under Charles, 143. implied doctrine as to sovereignty, 63. as guarantee of municipal rights, 105. MAINE, SIR HENRY — on origin of property rights, 31. on evolution of nations, 39. MAJORITY – danger of tyranny of, over minority, 93. government by, of localized minority, foreign rule, 99.) concurrent, of both houses of Congress necessary to legislation, 100. MALFEASANOE IN OFFICE – power of President in cases of, 734–736. MARBURY v. MADISON — establishes authority of State Constitutions, 64. MARQUE AND REPRISAL, LETTERS OF – may not be issued by States, 823. power of Congress to grant, 578. MARSHALL, CHIEF JUSTICE – on authority of the Constitution, in Marbury v. Madison, 64–66. on limits of legislative authority, in Fletcher v. Peck, 77. on meaning of “commerce among the several States,” 534, on action of the President in suspending writ of habeas corpus, 648, 649. on reception of ambassadors from revolted portions of foreign countries, 746. on right of United States to American continent, 181, 182, opinion in Gibbons v. Ogden on position of States, 251. in McCulloch v. Maryland on nature of Constitution of the United States. 294, 295. on source of powers of the States, 357, 358. in Gibbons v. Ogden on relation of States to the United States, 360, 361. in McCulloch v. Maryland on constitutional construction, 361. on exercise of taxing power, in Gibbons v. Ogden, 373, 468, 481. canon of, on constitutionality, 490, on limit to use of taxing power, 493. MARTIN v. HUNTER — Story in, on relation of States and the United States, 360. INDEX. 979 References are to pages. MARTIN v. WADDELL — Judge Story in, on sovereignty of the United States, 237. MARYLAND — attitude toward First Continental Congress, 207. first State Constitution of, 253. views of, on regulation of commerce, 263. ratifies Constitution of United States, 277. interprets commerce power in compact with Virginia, 519. MARY, QUEEN OF SCOTLAND — trial and death under Elizabeth, 140, 141. MASON, GEORGE — in Federal Convention on anticipated danger from tax system, 506. MASSA CHUSETTS – early colonial history of, 189, 190. a charter government, 192, 193. becomes a State, 223. communicates Boston Port Bill, etc., to Virginia Assembly, 204. first State Constitution of, 253, ratifies Constitution of the United States, 275. Constitution of, on source of sovereignty, etc., 352, MATTHEWS, JUSTICE – states doctrine of sovereignty in Yick Wo v. Hopkins, 62. MCCULLOCH v. MARYLAND — Chief Justice Marshall in, on nature of Constitution of the United States, 294–296. Marshall in, on constitutionality of measures, 361. M'LEAN, JUSTICE – opinion of, in Wheeler v. Smith, on sovereignty of States, 251. MEMBERSHIP — Congress judge of qualification for, in itself, 426,427. MERRYMAN, JOHN — case of, is illustration of violation of constitutional provisions as to writ of habeas corpus, 648. MESSAGE — presidential, originated how, 743. MIGRATION — nature of Teutonic, on Continent and in Britain, 112. nature of, in Canada and Louisiana, 113. MILITIA, CALLING OUT — * description of power over, 580, 581. Congress to put militia under command of President, 581, 584. history of clause providing for, 584, 585. 980 INDEX. References are to pages. MILLER, JUSTICE – on government interference and distribution of wealth, 78. on danger of abuse of taxing power, 491. on limit to use of taxing power, 493–495. in certain cases, on difference between commerce and taxing pow- ers, 522, 523. on privileges and immunities of citizens, 532, 533. on taxation of drummers, 533. on ea post facto laws, 657. on presidential appointments to fill vacancies, 742. MILLER Q9, UNITED STATES — on power of United States to confiscate property of Confederates during civil war, 591. MILLIGAN'S CASE – * on right of Congress to try citizen by military court during civil war, 595. MILTON.— views on the State, 44. MINISTRY, ENGLISH – vote by House of lack of confidence in, means what, 155, 156. membership of, how made up, 156. MINOR, Q, EIAPPERSETT — decision in, on suffrage and citizenship, 345. MINORITY — how to be protected from tyranny of majority, 93–95. government of, by localized majority, foreign rule, 99. TMINT BILLS.– not included under revenue bills, 451. MISDEMEANORS (see HIGH CRIMES AND MISDEMEANORS). MISSISSIPPI CONSTITUTION (see CONSTITUTION OF MISSISSIPPI). MISSOURI COMPROMISE – provisions of, 609. how affected by Dred Scott decision, 609, 610. Judge Story on, 614, 615. MONARCHY, CONSTITUTIONAL – dates in England from adoption of English Bill of Rights, 150. MONARCHY, ENGLISH – analyzed, 155–177. y checks power of House of Commons, 170, 172, MONEY — may not be coined by States, 823. power of Congress to coin, etc., 563, 564, to punish counterfeiting of, 564, 565. INDEX. * 981 f References are to pages. IMONOPOLY — grant of, illegitimate exercise of government authority, 77. laws creating, are subversive of basis of property, 33. MONROE, PRESIDENT— on power of Congress to construct post-roads, 571. on meaning of “common defense and general welfare,” 476. MONTESQUIEU, BARON DE— influence of, on political development in America, 389. on the Constitution of the United States, 389, 390. violation of maxim of, by Constitution, 391, 392. On treason, 616. on need for harmony in forms of government in a federation, 635. MONTFORT, SIMON DE (see LEICESTER). MORMON CHURCEI- disestablishment of, constitutional, 668. MORRIS, GOUVERNEUR — on ratification of acts of Federal Convention, 267. on nature of Constitution of United States, 309. proposes taxation in proportion to representation, 333. proposition of, on “common defense and general welfare” clause, 488. IMUNICIPALITIES — . self-government of, under Roman Empire, 103, 104. MUTINY BILL — origin and nature of, 160, 161. N. NATION – defined, 1. NATIONS — common genesis of, 107. NATURALIZATION — power of, exercised by Virginia, 194. power to establish rule for, in Congress, 558. power over, does not include power over suffrage, 559. NAVIGATION — power over, asked for by Continental Congress, 260. demand acceded to by Virginia, 260. NAVY — power of Congress to provide and maintain, 580. power differs how, from that over army, 580. 982 INDEX. References are to pages. “NECESSATY AND PROPER 22 — t meaning of words defined by Hamilton, 865–367. Marshall. On construction of, 367–370. true construction of, 370–374, NEW HAMPSHIRE – attitude toward First Continental Congress, 207. action as to Declaration of Independence, 230. first State Constitution of, 254. ratifies Constitution of United States, 277. NEW JERSEY — attitude of, toward First Continental Congress, 207. becomes a State, 223. action as to Declaration of Independence, 230. first State Constitution of, 254, action of, on regulation of commerce by Congress, 264. ratifies Constitution of the United States, 275. NEW YORK — peculiarity in origin of, 191. not represented at passage of Constitution, 269. attitude of, toward First Continental Congress, 207. first State Constitution of, 254. ratifies Constitution of the United States, 279. NICHOLSON, SIR FRANCIS — as governor of Virginia urges plan for loose union of colonies, 196, 197, NINTH AMENDMENT — f quoted and discussed, 687–689. “NISI PRIUS ’’— $. courts of, when established, 127. NOBILITY, NORMAN – feudal status of, 118. NOMINATIONS (see APPOINTMENTS). NORTH CAROLINA — attitude of, toward First Continental Congress, 205, becomes a State, 223. action as to Declaration of Independence, 230, , first State Constitution of, 255. ratifies the Constitution of the United States, 280, evidence from history of, as to ratification of Constitution by States, 284, NORTH, LORD — on jurisdiction of Parliament over American colonies, 185. unfortunate policy of, 204. INDEX. 983 References are to pages, NORTHERN CITIZENS — constitutional rights of, violated by Congress during civil war, 595. NORTHWEST TERRITORY — history of cession to Unitéd States by Virginia, 602–604. deductions from deeds ceding, as to sovereign character of States, 604, proposition of Madison relative to, 604, 605. * O. OATH – of President, when taken, 714, quoted, 715. OBSCENE MATTER – carriage of through mails may how far be prohibited by Congress, 567–569. OFFICES — power of President to appoint to, 732–740. to remove from, 732–734. to create, 736–738. OPINIONS — of executive officers may be required by President, 718, 719. ORDERS IN COUNCIL — effect on action of Virginia as to grant of power to Congress, 260. OWINGS v. SPEED — on time when Constitution of United States took effect, 269. P. PAGUS — nature of, 103, 111. PAINS AND PENALTIES, BILLS OF – described, 653. PAPACY — struggle of reformers with, 129. PARDON — - * power of, given to President, except in impeachment cases, 422, 719. PARLIAMENT — power of, to legislate for American colonies, 185. first beginnings of, 128, 124. development of, 125–128. division into two houses, 126. deposes kings, 128. 984. * INDEX. References are to pages. PARLIAMENT (continued)— made annual, 128. frequency of meeting of, established in 1688, 152. general description of, 159–162. period of life of, 162. t PARLIAMENT, ENGLISH- power of in seventeenth century, 50. action on reform bill, 53. PARLIAMENT, MEMBERS OF – independence of, secured, 157. PASSENGERS — accommodation of white and black in separate coaches not uncon- stitutional within States, 857–859. PATENTS.– ‘ though granted by Congress, States may forbid sale of articles to which applied, 551. see COPYRIGHTS AND PATENTS, IPATERNALISM — g as a government policy, 80. strong in ancient states, 80. in Plato's Republic, 81. in work of Sir Robert Filmer, 81. most vicious under democratic government, 82. f bad results of, 82, 83. PATRIA POTESTAS — limitations on, 11, 12. views of Filmer upon, 18. limits to, 19, 20. earliest form of government, 36. extent of, in early times, 36. views of Filmer, Locke, Rousseau, 38. ' as basis of Body-politic, 54. impediment to growth of freedom, 133. PATRIARCHA — defined as system of paternal government, 81. criticised, 81. T’ATRONAGE — as agency of despotism, 51. PATRONAGE, ENGLISH – in hands of the monarchy, 170. ſ PATTERSON – constitutional plan of, kept commerce distinct from taxing power, 521, * INDEX. 985 References are to pages. PATTERSON, JUDGE – opinion of, in Penhallow v. Doane’s Administrator, on relation of States to Congress, 234, 235. plan of, for Constitution, 326, 327. “PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE *— meaning of clause discussed, 470–482. origin of power in first scheme of the Constitution, 487–489, PECK — impeachment of, 422. PECK v. FLETCHER (see FLETCHER v. PECK). PENDLETON, EDMUND — at Williamsburg Congress, 205. on preamble to Constitution of the United States, 292. PENHALLOW v. DOANE'S ADMINISTRATOR — opinion of Judge Patterson on relation of States to Congress, 234, 235. Judge Iredell in, on same, 235. IPENNSYLVANIA — attitude toward First Continental Congress, 207. action as to Declaration of Independence, 280. first State Constitution of, 255. ratifies Constitution of United States, 275. “PERSONS ’’— may not be deprived of life, liberty, etc., without due process, 854. PETITION — right of unrestrained, established in 1689, 152. PETITION OF RIGHT – nature of, 67. PETITION, RIGHT OF – guaranteed by first amendment, 667. IPEIILADELPEIIA CONVENTION — proposed by Annapolis convention, 264. called by Congress, 265. delegates to, how appointed, 266, Randolph and others on ratification of acts of convention, 266–268. Burgess on action of, 268. testimony of Hamilton and Madison as to nature of, 271,4272. conclusion as to nature of, 278. sends copy of Constitution to the several States, 274. status of States at time of, 300. membership of, 325, 986 INDEX. References are to pages. * PHILADELPHIA CONVENTION (continued) — nature of work of, 325, 326. rival plans presented to, 326, 327. plan of Randolph presented to, 326. - Of Patterson, 327. treatment of revenue bills in, 448, 449. proposition in, regarding use of taxing power to pay debts and pro- vide for general welfare, 471. Mason and Rutledge in, on defects in proposed tax mechanism, 506. debate and verdict of, on issue of bills of credit and on legal tender quality, 508—510. discussion in, on charter of banks, etc., 517, 518. action of, on commerce power, 521. debates of, on suspension of writ of habeas corpus, 644, 645. history of discussions in, on organization and functions of exec- utive department, 699, 700. PHILIP II, OF SPAIN– alliance with Mary, Queen of England, 139. PICKERING, JOHN — impeachment of, 421. PINCFONEY — on need for increase of congressional powers, 264. plan of, for Constitution, 326, 327. first draft of Constitution by, 298. propositions of, on export tax and on regulation of commerce, 384. provisions of, as to commerce power, 521, 522. PIRACY — power to punish and define. 574. defined, 574. PITKIN — on proposed union of American colonies, 197. BLATO — paternalistic point of view of, 81. PLEBS, ROMAN — position of, 92. history of, 95, 96. illustrate theory of representation, 95. legislative power, how measured by, 102, 103. PLYMOUTH COLONY — declares against taxation without popular consent, see MASSACHU- SETTS, 190. POLICE POWER — of States, how affected by fourteenth amendment, 859, 860, INDEX . 987 References are to pages. T'OLITICAL SCIENCE – Scope of, 1–4. fundamental problems of, 35. postulate of, 47. nature of, 48. a canon of, 49. discovery of American, as to sovereignty, 62. Canons of as to extent of legislative interference, 83. POMEROY — general position on the Constitution, 179. JPOPULATION — how and why selected as basis of representation by Federal Con- vention, 333. |PORTS — of one State may not be favored by Congress at expense of another, 660, particular, of one State may be favored at expense of others in Same State, 661. POSTAL POWER — of Congress, discussed, 565–572. how far an exclusive power, 566, 567. post-roads, power to construct under, goes bow far, 570–572, POST-OFFICE BILL– not included under revenue bills, 451. POST-ROADS — power of Congress to construct, 570. views of Madison and Monroe on “establishment of,” 571. franchise to build, may not be taxed by States, 572. includes railways, 572, power over building of, applies only to use for postal purposes, 572. POWER — distinguished from tyranny, 38. how related to right, 44. original holder of, according to Blackstone, 61. how involved in question of representation, 92. POWERS (see RESERVED Powers). PRATT, LORD CHIEF JUSTICE – decision on royal prerogative, 175. PRESBYTERIAN CHURCH — attitude toward James I., of England, 141. 988 --> INDEX. References are to pages. PRESIDENT OF THE UNITED STATES — relation of to legislation, 100. appointment and powers of, 320, 321. evidence from powers of, on nature of the Union, 322. when tried by Senate on impeachment, Chief Justice must preside, * 409. provisions as to trial of, on impeachment, 409. for what subject to impeachment, 410, 411. penalty if impeached and convicted, 410, 411. power to call special session of Congress, 433, 434. responsibility to constituency, 444, 445. veto power vested in, why and how, 452–455. how exercises veto power, 455, 456. may not plunge country into war without at least tacit declaration by Congress, 577. * - to call out militia when needed, 581. commander-in-chief of militia, 581–584. must be governed by rules for regular forces, in controlling militia, 584, may not suspend writ of habeas corpus, 643–645. has no power to declare war or suppress rebellion, 645. hence has no authority over writ of habeas corpus, 646, 647. usurps power to suspend writ, 648, 649. executive power vested in, 693,694. term of office, 694, 695. manner of electing, 695, 696. mode of electing, how and why changed by twelfth amendment, 701. number of electoral votes required for election of, 704. mode of election in case electoral colleges fail to make a choice, 704– 707. unexpected working of system of electing, 708–710. needed reforms in system of electing, 710. qualifications for election as, 711. succeeded by Vice-President in case of “inability,” 711, 712. “inability” consists of what, and is how determined, 712–714. compensation of, rules concerning, 714, takes oath of office, how and when, 714, 715. powers and duties of, 714–752. 4 duties as commander-in-chief, 716–718. power over military forces, how limited by war power of Congress, 716–718. may ask for opinions of executive officers in writing, 718, 719. may grant pardons and reprieves, when, 719, 720. INDEX. g 989 References are to pages. PRESIDENT OF THE UNITED STATES (continued)– may make treaties by and with advice and consent of Senate, 720- 723. limitations on, in matter of making treaties, 724, 726. appointing power of, 732–740. power to remove officers, 734–736. can create offices and appoint to them, when, 736–738. power of, to fill vacancies, 740. duty to give Congress information and recommend measures, 743. power to adjourn Congress, 743, 744. duty to receive ambassadors, etc., 744–748. duty to see that laws are faithfully executed, 748. as agent of Congress in carrying into effect a declaration of war, 749. - - PRINCEPS — functions of, 111. PRIVILEGE – grant of, illegitimate exercise of government authority, 76, PRIVILEGES AND IMMUNITIES — of citizens, clause relating to, bears how on commerce power of Congress, 530–532. defined by Justice Washington in Corfield v. Coryell, 532, Miller on, 532, 533. of citizens of each State guaranteed to citizens of every other, 627. defined by Justice Washington, 627, 628. corporations not citizens under clause relating to, 628. do not include right to practice law, 628, do not include certain property rights acquired by marriage, 628. of citizens, guaranteed, 851—854, defined, 855. PRIVY COUNCIL — functions of, after Revolution of 1688, 152. TRIZE CASES — on power to blockade ports of Confederacy, 588, 589. PRIZES — fall within admiralty jurisdiction, 774. PROCEDURE – becomes regular under Edward I, 128. required to be in English, 128. ſ PROCEEDINGS — of each House of Congress prescribed by itself, 456. PROCESS OF LAW, DUE — * ~. necessary to deprive individual of life, liberty or property, 676. 990 INDEX. Jºeferences are to pages. ' PROPERTY — may not be taken from individual without due process, 676. not to be taken without just compensation, 677. origin and definition of, 4, 22. of man in self, 23, 25. basis of, 25–32. views of Spencer regarding landed, 30. Maine on origin of, 31. created chiefly by labor, 32, 33. security of private, how provided for by Magna Carta, 121. PROPRIETARY GOVERNMENT— character of, in America, 192. PROTECTIVE DUTIES – theory of, 498. use of, shown to be unconstitutional, 498–500, nature of, 501. Cooley on, 501, 502. PROVINCIAL GOVERNMENT — character of, in America, 192. PUBLIC ACTS, RECORDS, ETC.— power of Congress to provide for use, proving of, etc., 624, 625, PURITANS — attitude toward king and dissenters, 141, 144, QUARANTINE – Q laws on, passed by States do not exercise power to regulate com- merce, 535, QUEEN'S COUNSEL — how selected, 173. QUIA EMPTORES — principles of statute of, 126. QUORUM — in Congress, how constituted, 427, 428. - meaning discussed and adjudicated by Supreme Court, 432, 433. R. RAILROAD CO. v. BOSWORTH — on confiscation power of United States during civil war, 595. RAILWAYS – State tax on agents of interstate, is void, 544, - operations of interstate, may not be taxed by States, 545. property of interstate, may be taxed by States, 545. INDEX. 991 References are to pages. RALEIGH, SIR, WALTER– discoveries of, 181. RANDOLPH — f Constitutional plan of, kept commerce distinct from taxing power, 521. RANDOLPH, JOHN — plan of, for Constitution, 327. RANDOLPH, PEYTON – at Williamsburg Congress, 205. delegate to Continental Congress, 205. RATES, RAILWAY — may be regulated by the States despite fourteenth amendment,865– 868. RATIFICATION OF CONSTITUTION — mode of, prescribed by Article VII of the Constitution, 349. RECESS — vacancies occurring in, how provided for, 740–742. RECOGNITION – of revolted portions of foreign countries, left to President, 745–748. RECONSTRUCTION ACTS — provisions of, 546. never passed upon by Supreme Court, 597. would never have been sanctioned by Supreme Court, 597. nominally passed under clause guaranteeing republican form of government, 638, 639. RECORDS (see PUBLIC ACTs, RECORDS, ETC.). RE-ELIGIBITITY — discussions on, of President, in Philadelphia Convention, 697, 698. feeling concerning, of President, 715. REFORMATION — origin of, 132. peculiar conditions of, in England, 135, attitude of Henry VIII, toward, 136. strengthened under Edward II., 189, REFORM BILL — effect of, 50. passage of, 50. origin and nature of, 158. supported by William IV, 154, 992 . . . . INDEX, * References are to pages. PELIGION – attitude of author toward, 3. regulation of, by Congress forbidden by first amendment, 667. what is regulation of, 668. RELIGIOUS FREEDOM.– act for, drawn by Jefferson, 668. REMOVAL – of criminal cases from State to Federal courts under fourteenth amendment, 872. REMOVALS — ºt from Federal offices to be made by whom, 734–736. REPRESENTATION.— modern method of government, 87. how correlated with power of taxation, 89. principles of, 91, 92. how may protect minority from majority, 93–95. reply of colonies to Great Britain regarding, 98. right of, secured to House of Commons, 127. system of, how now divorced from tax system, 504. REPRESENTATIVES — prohibition on appointment to newly-created offices, 391." cannot hold office, 391. *. how often elected, 393. qualifications of, 394. how elected, 394. how apportioned, 395. number of, 396. first apportionment, effect of, 397. not subject to impeachment, 418, 414. to whom answerable, 415. may be expelled how and when, 428,429. how paid, 437, 438. when privileged from arrest, 438–440. freedom of speech guaranteed to, 440, 441. may not hold office or be appointed to newly-created offices, 441–443. REPRESENTATIVES, EIOUSE OF — power of, how checked by Senate, 100. as representative of the people themselves, 319. mode of election of members of, adopted by Federal Constitution, 328. basis of representation in, chosen by Federal Convention, 332–337. members of, cannot be appointed to newly-created offices, 391. INDEX. 993 References are to pages. . REPRESENTATIVES, HOUSE OF (continued)– members cannot hold office, 391. period of election of members, 393. members, by whom elected, 393, 394. qualifications of electors, 394. suffrage for, fixed by the States, 394. qualifications of members as to age, citizenship and residence, 394, 395. States powerless to fix qualifications for membership in, 395. members, how apportioned among States, 395, 396. size of, how determined, 396. * vacancies in, how filled, 398. speaker, how elected, 399. power of impeachment belongs to, 399. power Over own members, 415, 428, 429, articles of impeachment drawn by, 423. judge of qualifications of members, 426. Quorum, how constituted, 427. must keep journal, 430. meaning of quorum in, 432, 433. adjournment of, 433, 434. power to punish intrusion on, 434–437. instances of exercise of this power, 435–437. members, how paid, 437, 438. W members, when privileged from arrest, 438–440. freedom of speech in, 440, 441. right to make inquiries, how secured, 446. revenue bills must originate with, 446. prescribes own order of proceedings, 456. intended exercise of functions by, as to taxation, how transferred at present, 507. functions in electing President of the United States in contested cases, 706, 707. adjournment of, may be made by President, 748, 744, adjournment of, how regulated, 744, REPRIEVES (see PARDONs). REPUBLICAN FORM OF GOVERNMENT— provisions of Constitution guaranteeing. 634. originally proposed in Randolph's plan for a Constitution, 635. Madison on new provisions for guarantee of, 686, clause guaranteeing, not inconsistent with slavery, 637. clause not applicable to case of Texas, 685. reconstruction acts passed under clause guaranteeing, 688, 639. 63 , 994. INDEX. J References are to pages. RESERVED POWERS — of States, recognized by Federal Convention, 281, 282. apply to things and persons not in transitu, 534. may not be used as pretext to regulate commerce, 539, 540. Brown v. State of Maryland, as illustrating, 539, 540. of people, not infringed by enumeration of certain rights in Con- stitution (ninth amendment), 687. of people, are all those not delegated to United States by Constitu- tion, 689. discussion of doctrine of, 689–692. Constitution on what are, of States, 821. REVENUE — amount of, of Federal government and States, 83, 84. REVENUE BILLS — must originate where, 446. l history of legislative treatment of, 447–452. ' do not include post-office, mint, or land bills, 451. REVOLUTION — as an ultimate political remedy, 41. as reserved right of peoples, 50. why easily checked in England, 172. reception of ambassadors from foreign countries in cases of, 745. REVOLUTION, AMERICAN — assumptions of, 42, 47. issues involved in, 96–99. bearing of, on history of representation, 98, 99. REVOLUTION, ENGLISH- assumptions of, 42, 47. issues involved in, 96. . bearing of, on theory of representation, 96. REVOLUTION, ENGLISH, OF 1688– effect on constitutional monarchy, 150. principles established by, 152. REVOLUTION, FRENCEI — assumptions of, 42, 47. REVOLUTION, FRENCE, OF 1848– how instituted, 43. assumptions of, 47. REX. v. CREEVY — decision in, on freedom of legislative speech, 441. INDEX. 995 \ REIODE ISLAND — a charter government, 192, 193. accedes to call of for Continental Congress, 205. attitude toward First Continental Congress, 206. becomes a State, 223. d action as to Declaration of Independence, 230. first State Constitution of, 255. not represented in Federal Convention, 269. ratifies Constitution of United States, 280, - evidence from history of, as to ratification of Constitution by the States, 284. IRICHARD III, OF ENGLAND – overthrown at Bosworth, 129. RIDLEY — work in English Reformation, 139. RIGHT — derivation, 25. basis of law, 25. defined, 38. relation to power, 44. jural, as ideal standard, 56. RIGHTS (see RESERVED RIGHTS). RIVERS, NAVIGABLE – included in admiralty and maritime jurisdiction, 775, 776. |ROME — suffrage in, under republic of, 95, 96, delegation of powers to municipalities by, 102. work of, in giving jurisprudence to Aryan nations, 109. ROSES, WARS OF – political effect of, 132. TOUSSEAU – on duty of man to himself, 13. on social compact, 18. on expression of will of Body-politic, 46, 47. hypothesis of, as to rights of majorities, 48. “RUMP PARLIAMENT*— dissolution of, 146. FUTLEDGE – report of, in Federal Convention, on Sundry powers to be granted to Congress, 835. in Federal Convention, on limitations on tax system, 506. References are to pages. 996 . INDEX. References are to pages. S. SALWAGE, 778. SAXONS.– original home of, 112. introduce their systems of government into England, 113. commonwealth of, described, 116. institutions of, survive Norman conquest, 118. persistence of institutions of, in Magna Carta, 122. predisposition of, toward reformed faith, 186. SCUTAGE — levy of, how regulated by Magna Carta, 121. SEAMEN'S WAGES, 778. SEARCHES AND SEIZURES.– freedom from unreasonable, guaranteed by fourth amendment, 672. SEAT OF GOVERNMENT — power of Congress over, 597, 598, SECESSION — three theories as to right of, 338–340. right of, how affected by fourteenth amendment, 347, 348, decisions based on denial of right of, 588–597. SECOND AMENDMENT — quoted and discussed, 671, 672. SECRET JOURNAL OF CONGRESS.– language of, as to Declaration of Independence, 284, SECRETARIES — in certain order, act as President under what circumstances, 713,714. how appointed, 734, 735. SECRETARY OF THE TREASURY- status and duties of, 668, 664. SEDITION LAW — passed, 669. contents, 669. cases under, 669–671. SENATE — power of, how checked by House of Representatives, 100. as the representative of the States, 319. t mode of election of, adopted by Federal Convention, 328–332. members cannot hold offices or be appointed to newly-created ones, 391. INDEX. 99'ſ References are to pages, SENATE (continued)– composition of, 400. provisions as to members of, 400. object in method of appointment of members to, 400. exact mode of election to, left doubtful by the Constitution, 401. membership, why small, 401. forecast as to probable size of, 401. membership in, why longer than in House, 401. renewal of membership every three years, how arranged for, 402, 403. temporary vacancies, how filled, 403, 404, vacancies cannot be filled until they occur, 404, qualifications of members compared with those for Representatives 405. proposed change in mode of electing to, 406. presiding officer is the Vice-President of the United States, 406. history of presiding officer of, 406, 407. other officers, how chosen, 407. power to try impeachments, 408. expediency of trying impeachments through the Senate, 408. Story and Rawle on trial of impeachments by, 408. is best available tribunal for such trial, 408,409. presided over by Chief Justice when President of United States is, tried, 409. two-thirds of those present required to convict, 409. functions of presiding officer, 410. judgment in case of impeachment extends how far, 410. power over own members, 415, 428, 429. procedure in case of impeachment, 424, 425. judge of qualifications of members, 426. Quorum, how constituted, 427. must keep journal of proceedings, 430. yea and may vote, when to be recorded, 430, 431. meaning of quorum in, 432, 433, adjournment of, 433, 434. power to punish intrusion on, 484, 435. ? payment of members, 437, 438. members, when privileged from arrest, 438–440. freedom of speech in, 440, 441. right to make inquiries, how Secured, 446. power as to revenue bills, 446–451. prescribes own order of proceedings, 456. functions of president of, in election of President of the United States, 702. functions of, in making treaties, 720–723. 998 INDEX, References are to pages. SENATE (continued)— functions in appointing officers, in connection with the President, 732, 733, -adjournment may be made by President, when, 748, 744. adjournment, how regulated, 744. SENATORS — prohibition on appointment to newly-created offices by, 891. cannot hold office, 391. provision of Constitution as to, 400. object in method of appointment, 400. exact mode of election left doubtful by the Constitution, 401. number of, 401. term of, why longer than for Representatives, 401. one-third of, elected every three years, 402, 403. first division into three classes, how made, 403. how appointed in case of temporary vacancy, 403, 404. cannot be appointed until vacancy actually occurs, 404. qualifications of, 405. qualifications compared with those of Representatives, 405. proposed changes in mode of electing, 405, 406. must be on oath when sitting for purpose of impeachment, 409. not subject to impeachment, 418, 414. to whom answerable, 414. may be expelled, how and when, 428,429. how paid, 437, 438. & when privileged from arrest, 438–440. freedom of speech of, 440, 441. may not hold office or be appointed to newly created offices, 441- 443. SERVICE OF PROCESS — constructive, subjects property, 626, cannot be foundation of personal judgment, 626, 627. SEVENTH AMENDMENT – Quoted and discussed, 682–686. SEIIP-MONEY — contest over, in England, 96, 144. SHIPS OF WAR — not to be kept by States in time of peace, 844, 845. SHIRE – defined and described, 116. SHIREMOOT – Stubbs’ views on, as a Saxon institution, 115. INDEX. J 999 r References are to pages. SILVER DOLLAR — constitutional status of, 516. SIXTH AMENDMENT – quoted, 678,679. SLAUGHTER-HOUSE CASES —" decision in, on nature of fourteenth amendment, 345. SLAVERY — abolition of, by thirteenth amendment, 341–343, 848. SLAVES — how provided for in basis of representation in Congress, 333. trade in, how regulated in Constitution, 336, 337. provisions of Constitution on surrender of fugitive, 629. discussed, 631, 632. acts concerning fugitive, 632. cases concerning fugitive, 632–634. freedom of, certain how affected before civil war by question of commercial transitus, 554. importation into States could not be forbidden by Congress, 555. SLAVE-TRADE — provisions of Constitution as to, 336, 337. provisions of Constitution as to regulation of, by Congress, 524,525, SMITH 49, BROWN — opinion of Lord Holt in, on colonization, 184, SOCIAL COMPACT — theory of, 3, 4. Rousseau on, 18. objections to theory of, 40. when realized, if ever, 46. real scope for, where found, 72. SOCIETY — man's place in, 2, 3. object of, 11. origin of, 18, 19. relation of to personal liberty, 22–24, , how related to individual freedom, 39–41. relation to government and individual, 43. necessary to human existence, 48. how to be reformed by agency of government, 49. classification of members of, 51. must secure maximum social liberty, 58. SOLDIERS — shall not be quartered in time of peace, 692. 1000 INDEX. References are to pages. ' SOLEMN LEAGUE AND COVENANT – persecution of adherents of, 144, SOLICITOR-GENERAL, ENGLISH- how selected, 173. SOUTH CAROLINA — attitude of, toward First Continental Congress, 208, first State Constitution of, 255. ratifies Constitution of the United States, 277. 'SOVEREIGNTY — } defined, 2. in whom wested, 60. to whom delegated, 60. nature of, 60–67. defined by Blackstone, 61. provisions of Magna Carta regarding, 63. taken from people by constitutional extensions, 67. in original colonies, 202. rights of, reserved by the States, 244, 245. of States, how shown in sundry cases, 251, 252. not possessed by “United States,” 300. resides in States, etc., 301, 303. SPENCER, HERBERT – on personal freedom, 23, 24. on landed property, 30. on abuses of democracy, 83. on distinction between political rights and political powers, 87. SPENSER, EDMUND — gives name to Virginia, 186. “STAMP ACT?”— leads to union of colonies, 197, 198. STAR CHAMBER, COURT OF — how strengthened by Henry VIII, 136. STATE — defined, 1. position in ancient and modern philosophy, 44. STATE COURTS — relations between, and Federal, 764, 765, 767–769. ~~~~~ relations between, and Supreme Court of United States, 797–800, may not be interfered with by Congress or Federal courts, 800–802. may take jurisdiction of cases arising under Constitution or laws of United States, 804–806. removal of cases from, to Federal courts, principles for, 810–815. INDEX. . 1001 References are to pages. STATES OF UNION — restrictions on suffrage in, prior to Revolution, 90. have how disposed of reserved rights, 100. created out of various colonies, 223. opinions of Chase, Patterson and Iredell on early relation of, to Congress, 234, 235. how related to original colonies, 235. retain original rights under Articles of Confederation, 244, 245. enter into “firm league of friendship,” 246. other stipulations of and reservations in Articles of Confederation, 246–248, relation of to Congress shown in transfer of property by Virginia to Congress, 250, 251. sovereignty of, established in sundry cases, 251, 252. first Constitutions of, show reservation of sovereignty, 256. possess power to regulate commerce under Confederation, 261. copy of Constitution sent to the several, for ratification, 274. reservation of power to, desired by Federal Convention, 281, 282. ratification of Constitution by each of the, necessary to formation of Union, 282–287. why not named in preamble to Constitution, 297, 300. peoples of, only people who could ordain Constitution, 301. Sovereignty of, recognized by Constitution of United States, 303. reserved powers of, guaranteed and explained by tenth amendment, 305-307. powers and rights of, how protected by tenth amendment, 304–307. by eleventh amendment, 307. Hamilton on status of, in suits, 312, 313. represented by the Senate, 318, 319. status of, how shown in composition of legislative, executive and judiciary departments, 318–324. final conclusion as to status of, in the Union, 324, principle of co-equality of, in Senate, accepted by Federal Conven- tion, 329–332. powers of, over citizenship abridged by fourteenth amendment, 343– 847. nature of Constitutions of, 353, 354. tenth amendment on powers prohibited and reserved to, 355. evidence on source of powers of, 356, 357. John Marshall on source of powers of, 357. exercise of taxing power by, 372-374. legislative powers not granted to Congress are reserved to, 392. cannot fix qualifications for membership in House of Representa- tives, 395. legislatures appoint Senators, how, 400. 1002 INDEX. References are to pages. STATES OF UNION (continued)– prohibited from issue of coin, etc., 518–515. may emit bills of credit, but not as currency, 514, . commerce between, regulated by Congress, 519. power of, to interdict trade under Articles of Confederation, 528. citizens of each of the, entitled to immunities of citizens in each of the others (bearing of this clause on commerce power of Con- gress), 530–532. Justice Miller on power of States over privileges and immunities of citizens, 533. on taxation of drummers, 533. have power over things and persons not in transitu, 534, Marshall on meaning of “commerce among the several States,” 534. do not exercise power over commerce in passing quarantine laws, 535. may inspect articles, under reserved powers, 541. may tax drummers under what conditions, 543, 544. principles of taxation by, on interstate commerce, 544–546. conflict between Federal authority and authority of, as to traffic in liquor, 546—549. reserved powers of, must not be infringed by exercise of commerce power, 548. may prohibit sale of articles brought into the State from another, 549. may not tax upon transport of commodities, 549, 550. may regulate commerce when Congress fails to do so, 550. may perform commercial functions which do not obstruct com- merce, 550. may levy tax on passengers carried out of State by transportation companies, 552. importation of slaves into, could not be forbidden by Congress, 555. rights of, must not be trespassed upon, unless plainly violating the National Constitution, 556. may not impair obligation of contracts, 559, 560. powers of, as to bankruptcy (co-ordinately with Congress), 561. may pass bankrupt laws, but such laws are subordinate to those of Congress, 560. may discharge obligation of future contracts, but between own citizens only, 562, 563. may not coin money, etc., 563. may punish counterfeiting, 565. may exercise postal power where not interfering with postal power of Congress, 567. may, according to Attorney-General Cushing, prohibit distribution of incendiary mail matter, 569, 570. INDEX. $. 1003 - ~ References are to pages. " STATES OF UNION (continued)– laws of, forbidding use or sale of articles, are paramount to copy- rights or patents granted by Congress, 573. may not grant letters of marque and reprisal, 578. or engage in war unless actually invaded, 578. may not keep troops or ships of war in time of peace without con- sent of Congress, etc., 582, 583. #" militia subject to control of, 583. power to train militia according to congressional discipline re- served to, 584. admission of, 602. cannot rule Territories, 608. new, of what constituted, 610, 611. case of admission of Vermont, 611. new, how related to Union, 612. how admitted, 613. what conditions may be attached to admission of, 614, 615. republican form of government guaranteed to, by Constitution, 634. to be protected by the United States against invasion, 640. against domestic violence, 640. application for aid against domestic violence, how made by, 640. what is legitimate government of, decided how, 640–642. may suspend writ of habeas corpus, 651. no tax to be levied by Congress on articles exported from, 659, 660. may limit power to keep and bear arms, 671, 672. may seize papers of individuals, 673. sixth amendment does not apply to, 681. not limited by eighth amendment, 686, 687. powers of, are all those not delegated to United States by Constitu- tion, 689–692. manner of appointing presidential electors, 695-697. shall not enter into treaties, 720. controversies between, fall under jurisdiction of United States, 761. discussed, 784, 785. controversies between one of the, and citizens of another of the, fall under jurisdiction of the United States by terms of original Constitution, 761. controversies between citizens of different, fall under jurisdiction of the United States, 761. relations between courts of, and of the United States, 764, 765. vessels in possession of sheriffs under process of, cannot be seized under admiralty jurisdiction of United States, 781. may not be sued in Federal courts by citizens of other States (eleventh amendment), 786. may not be sued in Federal courts by own citizens, 787. 1004 INDEX. References are to pages. STATES OF UNION (continued)— may sue citizens of other States in Federal courts, 788. may be sued as stockholders by citizens, 788. e officers of, so far as they represent, may be sued by citizens, 789– 791. may not be sued in Federal courts by other States acting as agents for citizens, 792. * not decided whether States may be sued in Federal courts by for- eign States, 792. who is citizen of, in legal controversies, 792–795. corporation as citizen of, 793–795. courts of, how related to Supreme Court, 797–800. limitations on power of, 821–874. may enter into no treaty, alliance, etc., 822, 823. may not grant letters of marque, 823. may not coin money, 823, 824, - or emit bills of credit, 824. or make anything but gold and silver coin a tender, 825–827. or pass any bill of attainder, eac post facto law, or law impair- ing obligation of contracts, 827–840. may not impair own contracts, 829. are bound how by charters of corporations, 829–836. may not grant titles of nobility, 840, 841. may lay no duties except those necessary for executing inspection laws, 841–844. may not lay duties of tonnage without consent of Congress, 844, or keep troops or ships of war in time of peace, 844, 845, or enter into compact with other States, etc., 845, 846. have large majority of all powers of government, 846–848. power to maintain slavery removed by thirteenth amendment, 848, 849. forbidden to abridge privileges or immunities of citizens, etc. (four- teenth amendment), 851–854. may not deprive persons of life, liberty, etc., without due process, 854, police power of, how affected by fourteenth amendment, 859, 860. may regulate railway rates, etc., despite fourteenth amendment, 866–868. laws concerning constitution of juries, how affected by fourteenth amendment, 871-874. STEPHEN — on jurisdiction in original American colonies, 185. STOCKDALE v. HANSARD — principle involved in, 175. f INDEX. 1005 References are to pages. STORY, JUDGE – general position on the Constitution, 179. on origin of American colonies, 184. on early history of certain colonies, 191. on character of early colonial governments, 193. on sovereignty in the colonies, 199, 200. inconsistency of, how evaded, 200. on land tenure as evidence regarding status of original colonies, 201. equivocal character of “one people’’ as used by, 202. on nature of Continental Congress, 205, 206, 210. on action of “people” in constituting, 209. on colonies as single Body-politic, 210. on Continental Congress as sovereign, 213. on Declaration of Independence, 233. in Martin v. Waddell, on sovereignty of the United States, 237. on interpretation of preamble to Constitution of the United States, 288. in Martin v. Hunter, on relation of States to the United States, 360. On common defense and general welfare, 479. wrong view of, on original intent of common defense and general welfare clause, 489. On lack of power of Congress to appropriate money refuted, 504, on faulty method prescribed by Constitution for apportioning di- rect taxes, 505. on injurious character of legal tender power, 512. On conditions which may be attached by Congress to admission of new States, 614, 615. on writ of habeas corpus, 646. 'STUBBS — on Teutonic influences in England, 109. on Saxon institutions in England, 114, on composition of witenagemot, 117. on composition of Parliament under Edward I, 125. SUBJECT-MATTER – cases falling within jurisdiction of United States on account of, 760–767. SUCCESSION, ENGLISH – regulated by Bill of Rights, 149–152. hereditary, 162, SUFFRAGE — - right of, in constitutional conventions, how determined, 68. right to exercise of, depends upon capacity, 88. exercise of to be granted by Body-politic, 89. nature of in England before and after Reform Bill, 153, 154. 1006 INDEX. References are to pages. SUGAR — mode of levying duty on, how illustrates principle of uniformity, 469. SUPREME COURT — . complaint against appellate jurisdiction of, 682. “judicial power” vested in, 753. nature of, and number of judges in, 755. organization of, 756. jurisdiction of, 757. final appellate jurisdiction of, 767–769. action where no appellate jurisdiction exists, 768. action on unconstitutional State laws, 769. has concurrent jurisdiction over cases affecting ambassadors, etc., 771, 772. restrictions on appellate jurisdiction of, 806, 807. exercise of appellate jurisdiction of, through writ of habeas corpus, 815, 816. Drake bill deprives of power to hear habeas corpus, 818. SUPREME JUDGES — tenure of office and compensation of, 754, 755. number of, how fixed, 755. SURRATT, MRS.— case of, is instance of violation of constitutional provisions as to writ of habeas corpus, 650. T. TACITUS — description of Teutons by, 110. TAX – defined by Cooley, 78. may be levied by Congress, 457. not defined in Constitution, 457, 458. word where found in Constitution, 458. probable meaning, 458, 459. direct, how levied, 460, 461. subjects of direct, are what, 461, 462. direct, of 1862, refunded, 464, may not be laid upon State property or salaries paid by States, etc., 464, 465. how laid upon inhabitants of Territories and of District of Colum- bia, 468, 469. must be for revenue only, 497–504, broadness of system of apportioning direct, 504. INDEX. 100'ſ References are to pages. TAX (continued)— faulty method of apportioning direct, 505. how apportioned under Articles of Confederation, 505, capitation and direct, how to be laid, 659. TAXATION.— properly a function of legislative department, 75. why paid, 75. Justice Miller on differential, 78. Cooley on differential, 78. can legally be employed for public purposes only, 79. power of, how related to representation, 89. how involved in English and American revolutions, 96–99. Burke on American, 96, 97. collection of, how arranged for by Magna Carta, 123. power of House of Commons over, how first recognized, 126. by Parliament only, established in 1688, 152. power of in England reserved to Eſouse of Commons, 155. methods of Parliament as to, 159. not affected by fourteenth amendment, 859, 861, 862. may be specially applied to corporations despite fourteenth amend- ment, 864, 865. TAX-CONSUMER – distinguished from tax-payer, 80. TAXES — of various kinds, involving sovereign authority, levied by Virginia, 194, 195. direct, how apportioned among States, 395, 396. difficulty in just apportionment of direct, 398. TAXING POWER — use of, when unconstitutional, 873, may not be used to suppress business, 465, 466. Marshall on use of, 466, 468, 481, Hamilton on use of, 467. how related to power to pay debts and provide for general welfare, 470–482. Miller on danger of abuse of, 491. Marshall, Chase and Miller on limit to use of, 493, 495. may not be used in aid of commercial enterprises, 496. or of schools in the States, 497. use for protective purposes unconstitutional, 498–502. intended exercise of, how hampered at present, 507. not the same as commerce power, 522. Justice Miller on distinction between commerce and taxing pow- ers, 522, 523. 1008 , , ". INDEX. References are to pages. TAX-PAYER – distinguished from tax-consumer, 80. , TAYLOR — views of, on development of Saxon institutions, 117. TENTH AMENDMENT – on reservation of powers to States, 304. interpretation of, 304, 307. on powers of the States and of the United States, 355, 356. TENURE-OF-OFFICE ACT — history and discussion of, 739, 740, TERRITORIES — duty of Congress to organize and rule, 608, 609. how governed, 613. how become States, 613. what conditions may be attached to admission of as States, 614, 615, TERRITORIES, COURTS OF THE– nature of, 819, 820, judges of, how appointed, 820. TERRITORY, NEW — nature of power exercised by Congress over, 605. may be acquired by Congress, 605–608. “TEST ACT?” — abolition proposed by James II, 147. TEUTONS — origin of traditions of, 103. ideas of early, 103, 104. point of view as to nature of the State, 104. influence of, in England, 109. description by Caesar of, 109, 110. by Tacitus, 110. government among, 111. difference between, in England and in Gaul, 112. TEXAS v. WHITE – Chase in, on nature of the Union, 316. THIERRY — on English Reformation, 185. THIRD AMENDMENT – quoted and discussed, 672. THIRD ESTATE — contest of, after Revolution, 52. INDEX. 1009 References are to pages. THIRTEENTEI AMENDMENT — nature of, 340, 341. effect of on Constitution, 341. principles of, 342, 343. quoted and discussed, 848–850. THORINGTON 0%. SMITEI — held contracts between persons in Confederate States binding, 594, TILDEN – presidential contest with Hayes, 702–704. TITLE – of nobility, not to be granted by United States or accepted by offi- cers thereof from foreign powers, etc., 664. TONNAGE – levy of duties of, by States, requires consent of Congress, 844. TONNAGTE AND POUNDAGE — controversy over, under Charles L., 143. TOPEKA v. LOAN ASSOCIATION (see LOAN Association v. ToPEKA). TORY PARTY — origin and nature of, 152. TOWNSEIIP – origin of, 111. TRANQUILLITY – object of Constitution to establish, 385, 386. TRANSITUS, COMMERCIAL– doctrine of, 534–589. beginning and end of, as defined by courts, 548–550. how affected certain slaves before civil war, 554, TREASON – first defined, 128. - language of Constitution on, shows Constitution was ordained by States, 302–304. a subject for impeachment, 416. history of English law of, 616–618. provisions of Constitution on, analyzed, 618–621. defined, 619. conviction of, 620. TREASURY — money, how to be drawn from, 661. status of, in England and America, 662, 668. 64 1010 INDEX. References are to pages. TREATIES – how far authoritative, 376. to be made by President by and with advice and consent of Senate, 720. nature of power to make, 721–723. power to make, where vested in English Constitution, 721, 722. limits of scope that may be given to, 723–726. nature, as international compacts, 729–782, may not be entered into by States, 822. TREATY-MAKING POWER, ENGLISH — how controlled by House of Commons, 169. TREATY POWER — exercised by Virginia, 195. TREVETT v. WEEDEN – on illegality of legal tender quality, 512. TRIAL — right to speedy and public, guaranteed by sixth amendment, 678. 679, by impartial jury, 679. by jury of State where crime is committed, 679, 680. TROOPS — not to be kept by States in time of peace, 844,845. TUCKER, JUDGE – on common law of England as brought to Virginia, 184. on writ of habeas corpus, 646. TWELFTEI AMENDMENT — quoted and discussed, 701, 702. TYRANNY — distinguished from right and power, 88. in ancient States, 85, 86, how prevented by proper system of representation, 94. U. UNCONSTITUTIONALITY – defined, 376, determined by judicial department, 376, 377. may exist in case of part of an act, 378. views of Cooley on, 379, TJNION — age of, as compared with that of the States, 237–239. what is nature of, 256. established only so far as Constitution was ratified by the States, 285. INDEX. 1011 JReferences are to pages. DNION (continued) — Choate on nature of, 314–316. tenth amendment on nature of, 315. Chase in Texas v. White on nature of, 316. Jefferson on nature of, 317. nature of, finally established, 318. nature of, how displayed in composition of legislative department, 320. of executive department, 321. of judiciary department, 321. nature of, how affected by civil war, 338–348. object of Constitution to form more perfect, 382. UNION, FEDERAL – nature of, 72, 73. income of, 83. principle of, 105, 106. TJNION OF AMERICAN COLONIES — protective, proposed under William and Mary, 196. rejected by Virginia, 197. Second attempt to establish, 197. TJNITED STATES OF AMERICA — name first used in Articles of Confederation, 244. meaning of, in preamble to Constitution, 296. why used in preamble instead of names of individual States, 300. sovereignty not possessed by, 300. status of, as holder of delegated powers merely, made clear by tenth amendment, 304–307. Choate on nature of, 314–316. government of, is what, 318. Chief Justice Waite in, on relation of powers of States, etc., of TJnited States, 364, 365. power to blockade ports of Confederacy, 588, peculiar status of, during civil war, 589, 590. power to confiscate property of Confederate citizens during civil war, 591. history of cession of Northwest Territory by Virginia to, 602–604. guarantees republican form of government to States, 634. guarantees States against domestic violence, 640. when to send aid in such cases, 640. may not grant titles of nobility, 664. powers not delegated to, by Constitution, are reserved to States or to the people (tenth amendment), 689. cases to which United States is a party fall under jurisdiction of, 764, 765. these cases discussed, 782–784. 1012 INDEX. References are to pages. TUNITED STATES v. CRUIESEIANK – decision in, on citizenship, 345, 346. TJNITED STATES v. DEWITT – on right to mix and sell explosives, 503, 504. TJNITED STATES v. KLEIN – on captured and abandoned property, 593. TJTILITARIANTSM – theories of, as to politics, defective, 14, 18. W. VACANCIES — power of President to fill, 740. WALLANDIGHAM'S CASE — on right of military commission to try northern citizen during civil war for alleged disloyalty, 595. VERMONT — history of admission of, to Union, 611. admission forms precedent for admission of Texas, 611. TVESSELS — principles of State taxation of, 545, 546. VETO POWER — object of, 452, 453. nature of, 454, 455. how exercised, 455, 456. VETO POWER, ENGLISH – vested in executive, 162. uselessness of, 169. WICE-PRESIDENT OF THE UNITED STATES — as president of the Senate, 406. limitations on power as president of Senate, 407. vacates seat before end of term, 407. loses place as president of Senate if obliged to fill position of Presi- dent of the United States, 407. does not preside when President of United States is tried on im- peachment, 409. functions as presiding officer in ordinary impeachment trial, 410. for what to be impeached, 410, 411. manner of electing, 695, 701, 704, 706, 707. qualifications for election as, 711. acts as President under what circumstances, 712–714, INDEX. * 1013 References are to pages. VICUS – nature of, 102, 111. VIRGINIA — origin of name of, 186. first settlements in, 186. charter granted to, 186. subsequent history of, 186–189. legislature of colony rejects plan for loose union with others, 196, 197. citizenship in, defined, 201. attitude of, toward First Continental Congress, 208. becomes a State, process reviewed, 223–226. conveys territory to United States, 250. bearing of transfer on doctrine of reserved rights of States, 250, first State Constitution of, 255, 256. grants Continental Congress power as to navigation, 260. provides for delegates to Philadelphia convention, 265. interprets commerce power in compact with Maryland, 519. cedes Northwest Territory to United States, 602–604. consent of, necessary to make Northwest Territory “free” territory, 604. VIRGINIA, ASSEMBLY OF– action on Boston Port Bill, 204, 205. meets in 1776, dissolves, reconstitutes as popular convention, 224, Tucker on convention reconstituted out of, 224. declaration issued by reconstituted, 225. ratifies Constitution of the United States, 278. VIRGINIA CONSTITUTION (see CoNSTITUTION OF VIRGINLA). VIRGINIA, CONSTITUTIONAL CONVENTION OF – debates on preamble to Constitution of the United States, 291–293. VON HOLST – : general position on the Constitution, 179. point of view of, 179. misled by statements of Story, 212. W. WAITE, JUDGE – in United States v. Cruikshank, on relation of powers of States and of United States, 364, 365. WAR — rules and regulations for, to be made by Congress, 580. 1014 INDEX. References are to pages. WAR, DECLARATION OF– power of Congress to make, 576. why usual, 576. words “to declare,” defined, 577. "WAR POWER — includes what, 576. analyzed and discussed, 576-597. WAR POWER, ENGLISH — vested in executive, 162. WARE v. HYLTON – Chase in, on nature of Declaration of Independence, 234, WASHINGTON, CITY OF – how, and why so, governed, 599, 600. WASHINGTON, GEORGE – at Williamsburg Congress, 205. delegate to continental Congress, 205. elected General, 219. commission of, how issued, 219. large powers of, wested in, 221. evidence from status of, as to nature of continental Congress, 221. on need for a Constitution, 262. president of Philadelphia convention, 266. WASHINGTON, JUSTICE – defines “privileges and imamunities” in Corfield v. Coryell, 532. explains “privileges and immunities” of citizens, 627, 628. TVWEIGHTS AND MEASURES — power of Congress over, 563. WELFARE – power of Congress to provide for general, see PAY THE DEBTS AND PROVIDE FOR THE GENERAL WELFARE, WEIEELER v. SMITH — opinion of Justice McLean in, on sovereignty of States, 251. WEHIG PARTY — Origin and nature of, 152. WHITNEY — on original language of the nations, 108. WIDOW — sundry rights of, confirmed by Magna Carta, 120. WILLIAM AND MARY, OF ENGLAND — grant charter to Massachusetts, 190. *- INDEX, 1015 ^s. References are to pages. WILLIAM I, OF ENGLAND — action after conquest of England, 117, 118. accepts English kingship, 148, 149. WILLIAM IV., OF ENGLAND — supports Reform Bill, 154, WILLIAMSBURG — convention of colonial deputies at, 205. WITENAGEMOT — defined by Stubbs, 115. WITNESS — stenographic notes on evidence of, living at time of first trial, may be used at second trial, 857. no one to be compelled to act as, against himself, 676. may be obtained by accused by compulsory process of law, 680. WOLSEY, CARDINAL – contest with the Commons, 132. WYCLIFFE — work of, 128. * Y. YEARDLEY, SIR GEORGE — calls first American legislative assembly, as Governor of Virginia, 186, 187. YICK WO v. HOPKINS — doctrine of sovereignty in, 62. YORK, HOUSE OF — injury done by, to House of Commons, 129. 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