'Or o ^lOSANCFiavA, CO so I "^jUAiNn-awv^ ^OFCAIIFO/?^ >&Aava8nii'<^ ^4,OFCAIIFO/?^ .\WEUNIVER5/A 3 -< %a3AiNnavN^ ^^ ^OFCAIIFO% ,\\\EUNIVERy/A oa vvlOSANCElfj^ t?Aav«an# ^OFCAIIFOR^ ^(^AHvaan^ -n IJ O vL ^>^illBRARY(9/^ ^(i/OJIWDdO"^ ^WEUNIV!R% ^lOSAVC!lfj> ^. vj.lOSANCElfj> ^UIBRARYQ^ ^^^M•lIBRARYC>^ aWEUNIVER^//, %\Z/ \f ^-<^i tJF^ ^g '^^0JnV3J0>^ 5 "^aaAiNn-Jwv** ^lOSANCElfj^. o >&Aava8ii# ^&Aava8niS^ ^OFCAl!F0«»/^ ^ME■lNIVER5'//, ^ 3 ^UIBRARYQr, LECTURES tjIjL constitution THE UNITED STATES BY SAMUEL FREEMAN MILLER, LL.D. K AJf Associate Justice of the Supreme Court of the Unit < States NEW YORK AND ALBANY BANKS AND BROTHERS, LAW PUBLISHE 1893 Copyright, 1891, By banks & BROTHERS. T THIS POSTHUMOUS WORK r. Jtxsticc ptilUv IS RESrECTFLLLY DEDICATED CHIEF JUSTICE AND ASSOCIATE JUSTICES SUPREME COURT OK THE UNITED STATES 770574 PREFACE. The late Mr. Justice Miller, at his death, left a care- fully prepared manuscript of ten lectures upon the Con- stitution of the United States, which had been read by him before the students of the Law School of the National University, in the city of Washington, during the winter of 1889 and early spring of 1890. These lectures were accom- panied by a series of notes, prepared under his direction. This material, and two other papers by him on cognate subjects — the first an address before the Alumni of the Law Department of the University of Michigan on the 29th day of June, 1887, entitled, " The Constitution and the Supreme Court of the United States"; the other " An Oration delivered at the one hundredth anniversary of the framing and promulgation of the Constitution in Independence Square, Philadelphia, on the 17th day of September, 1887" — have been placed in my hands for arrangement and publication. The address and the ora- tion were published together under Mr. Justice Miller's supervision during his lifetime. The ten lectures are now published for the first time. It will be easily seen that no editing of these papers, in the ordinary sense of that term, was necessary, beyond the care required in order to ensure the exact reproduc- VI PREFACE. tion of the thoughts and language of the great judge who has passed away, and the verification of the authorities cited or quoted in the footnotes. The simplicity of style, the directness of statement, the breadth of view, the honesty of purpose, and tlie discriminating analysis to be found in these papers, must arrest the attention and com- mand the admiration of students of Constitutional History, without extraneous suggestions. I have, accordingly, printed Judge Miller's Lectures as they came to me, and have attached to them the footnotes in the condition in which they were left by him, after properly verifying them. I have also taken the liberty to add a short note to each of these Lectures, which in each case will explain itself. I have also added a supplemental chapter con- taining references to minor provisions of the Constitution, not discussed in the Lectures, and an appendix containing (1) a collated copy of the Constitution, with full references to the cases in which it has been construed or discussed ; (2) a collated copy of the Articles of Confederation ; (3) copies of the Randolph draft for a constitution, and of the Pinckney draft for the same, which were submitted to the convention May 29, 1787, both of which proved to be of substantial use in the discussions which followed in the convention. I have endeavored to present this work to the profession and the public in a manner worthy of the great judge who has passed away, so far as the limited time given me, and my duties to the court would allow. If there be any serious shortcoming, no one will regret it more than L It has PREFACE. Vll been to me a labor of love to follow in the footsteps of one whose great intellect, probity, manliness, and direct- ness of purpose were recognized by the whole nation ; whose amiable character was admired by all who knew him ; and whose friendship I was permitted to enjoy for nearly a quarter of a century. Mr. Justice Miller was trained in the school of Chief Justice Marshall. When he died, the bar of the Supreme Court passed a series of resolutions to express their esti- mate of his character, and of the great value of his services to his country. Wlien these resolutions were presented to that court by the Attorney General of the United States, the Chief Justice, in responding, said : "When he took his seat, the country was in the throes of internecine conflict ; when his eyes closed, it was upon a happy, prosperous, and united people, living under the form of government devised by the fathers, the wisdom of whose fabric the event had vindicated. Great problems crowded for solution : the suspension of the habeas corpus ; the jurisdiction of military tribunals ; the closing of the ports of the insurrectionary States ; the legislation to uphold the two main nerves, iron and gold, by which war moves in all her equipage ; the restoration of the predominance of the civil over the military authority ; the reconstruction measures ; the amendments to the Constitution, involving the consolidation of the Union, with the preservation of the just and equal rights of the States, — all these passed in various phases under the jurisdiction of the court, and he dealt with them with the hand of a master. Vlll PREFACE. " While he took his full share in the consideration of every subject of judicial investigation, notably in reference to some, as, for instance, those pertaining to the public lands, yet he chiefly distinguished himself in the treatment of grave constitutional questions, which brought into play the patience, the intuition, the deliberation, the foresight, the intellectual grasp and the breadth of view which char- acterize all who have deserved the name of statesman. And, as with private controversies, so with those concern- ing the public and the Government, he sought to go by the ancient ways and never to incur the' curse denounced on him who removeth the landmarks. His style was like his tread, massive but vigorous. His opinions, from his first in the second of Black's Reports, to his last in the one liun- j dred and thirty-sixth United States, some seven hundred in number (including dissents), running through seventy vol- umes, were marked by strength of diction, keen sense of justice, and undoubting firmness of conclusion. " He had that true legal instinct which qualified him to arrive at the very right of a cause and to apply settled principles to its proper disposition ; while to courage was joined an integrity and simplicity that always commanded respect and generally carried conviction. Benignant in temperament, and with a heart full of sensibility, his inter- course with his fellows was so cordial and kindly as to endear him to all who came within the sphere of his influence." To Gherardi Davis, Esq., of the New York bar, I wish to return my thanks for valuable suggestions in the PREFACE. IX preparation of these Lectures and Notes for publication : and still more for the full references to decided cases which accompany the copy of the Constitution in the Appendix. To Hon. J. B. Moore, Assistant Secretary of State, I am indebted for the collated and certified copies of the Con- stitution, etc., in the Appendix, which cannot but prove interesting to students of constitutional history. J. C. BANCEOFT DAVIS. Washington, July 1, 1891. TABLE OF CONTEXTS. I. Framing of the Coxstitutiox Notes upon Lecture I. 1 35 II, The Principles of Construction of the Constitution 59 Notes upon Lecture II 117 III. The Executive Branch of the Government Notes upon Lecture III. ... IV. The Separate Powers of the Senate and the House of Representatives . Notes upon Lecture IV. V. The Power of Taxation Notes upon Lecture V. VI. Naturalization and Citizenship Notes upon Lecture VI. VII. The Judicial Power of the United States Notes upon Lecture VII. .... VIII. The Supreme Court of the United States Notes upon Lecture VIII. 145 177 189 217 227 263 275 297 309 351 373 419 XI Xii TABLE OF CONTENTS. PAOB IX. Kegulation of Commerce among the States . . 43o Notes upon Lecture IX 474 X. The Right of Trial by Jury 485 Notes upon Lecture X 511 XL Impairment of the Obligation of Contracts . . 523 Notes upon Lecture XL ...... 566 XII. Limitations upon the Powers of States . . . 573 Notes upon Lecture XII 598 XIII. Supplementary: Subjects not discussed elsewhere 601 Appendix I. The Constitution of the United States . . 681 II. Articles of Confederation — 1777 . . . 716 III. Resolutions offered by Mr. Randolph . .728 IV. The Pinckney Plan 732 Index ............ 741 TABLE OF CASES CITED IN LECTURES AND NOTES. Ableman v. Booth, 21 How. 20G 98 Allen I'. Baltimore & Ohio Railroad, 114 U. S. 311 365, 306 Almy V. California, 24 How. 169 80 American Insurance Co. v. Canter, 1 Pet. 511 131, 133, 370 Anderson v. Dunn, 6 Wheat. 204 614 Antoni v. Greenhow, 107 U. S. 769 365 Arkansas Valley Land &c. Co. v. Mann, 130 U. S. 69 520 Asher v. Texas, 128 U. S. 129 269, 270, 475, 483 Austin V. Aldermen, 7 Wall. 694 249, 256 Ayers, In re, 123 U. S. 443 365, 366 Bain, Ex parte, 121 U.S. 1 517 Baiz, In re, 135 U. S. 403 362, 426 Baker r. Portland, 5 Sawyer, 566 322 Bank of Commerce i'. New York, 2 Black, 620 80, 257 Bank of New York v. Supervisors, 7 Wall. 26 258, 266 Bank Tax Case, 2 Wall. 200 80, 257 Banks v. Manchester, 128 U. S. 244 620 Barbier v. Connolly, 113 U. S. 27 659 Barney v. Keokuk, 94 U. S. 324 360 Barron v. Mayor &c. of Baltimore, 7 Pet. 243 93 Bartemeyer v. Iowa, 14 Wall. 21 674 Basey v. Gallagher, 20 Wall. 670 494 Baylis v. Travellers' Insurance Co., 113 U. S. 316 494 Beers v. Hausjhton, 9 Pet. 329 546 Bell Gap Railroad Co. r. Pennsylva- nia, 134 U. S. 232 660 Bennett v. Butterworth, 11 How. 669 319, 522 Board of Liquidation v. McConib, 92 U. S. 531 365, 366 Bond V. Brown, 12 How. 254 494 Bowman v. Chicago & Northwest- ern Railway Co., 125 U. S. 465 425, 474, 477, 483 Boyce's Executors v. Grundy, 3 Pet. 210 319 Boyd V. United States, 116 U. S. 616 647 Bradwell v. The State, 16 Wall. 130 660 Brashear v. Mason, 6 How. 92 424 Brimmer v. Rebman, 138 U. S. 78 425, 475, 485 Briscoe v. Bank of the Common- wealth of Kentucky, 11 Pet. 257 583 Bronson v. Kinzie, 1 How. 311 549 Brown v. Houston, 114 U. S. 622 474, 476 Brown v. Maryland, 12 Wheat. 419 80, 268, 462, 591 Browne v. Strode, 5 Cranch, 303 335 Burgess v. Seligman, 107 U. S. 20 274, 358 Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 620 Butchers' Union Co. r. Crescent City Live Stock Co., Ill U. S. 746 567 Butterworth i: Hoe, 112 U. S. 50 424 XIV TABLE OF CASES. PAGE Buzard v. Houston, 119 U. S. 347 522 Calder v. Bull, 3 Dall. 380 586 Caldwell v. Texas, 137 U. S. 692 072 California v. Central Pacific Kail- road Co., 127 U. S. 1 266, 425, 474, 480 Callaghan r. Myers, 128 U. S. 617 620 Callan v. Wilson, 127 U. S. 540 361, 518, 519 Callanan i\ Judd, 23 Wisconsin, 343 313 Calton V. Utah, 130 U. S. 83 519 Canal Co. v. Clark, 13 W^all. 311 622 Cannon v. New Orleans, 20 Wall. 577 255, 594 Cai'dwell r. American Bridge Co., 113 U. S. 205 474, 478 Cherokee Nation v. Georgia, 5 Pet. 1 314, 320, 335, 401 Chew Heong v. United States, 112 U. S. 53G 324 Chicago, Burlington &c. Eailroad V. Iowa, 94 U. 8. 155 397 Chicago & Burlington Railroad v. Guffey, 120 U. .S. 569; S. C. 122 U. S. 561 265 Chisholm v. Georgia, 2 Dall. 419 02, 77, 83, 331, 379, 423, 652 Chy Lung v. Freeman, 92 U. S. 275 80 Civil Rights Cases, 109 U. S. 3 656, 657, 659 Clay V. Field, 138 U. S. 464 426, 657 Clinton Bridge, 1 Woolworth, 150 447 Coe V. Errol, 116 U. S. 517 252, 474, 477, 592 Cohens v. Virginia, 6 Wheat. 204 76, 98, 317, 318, 335 Cole 1-. Cunningham, 133 U. S. 107 633 Cole V. Lagrange, 113 U. S. 1 265 Colson V. Lewis, 2 Wheat. 377 334 Commissioner of Patents v. White- ley, 4 Wall. 522 424 Concord ;•. Robinson, 121 U. S. 671 272 Converse, In re, 137 U. S. 624 059, 664 Cook V. United States, 138 U. S. 157 361, 425, 520 Cooley V. Port Wardens of Phila- delphia, 12 How. 299 450, 454, 455, 461, 462 Cooper Manufacturing Co. v. Fer- guson, 113 U. S. 727 474, 475, 476 Cooper's Case, 138 U. S. 404 427 Corbin v. Gould, 133 U. S. 308 622 Corson v. Maryland, 120 U. S. 502 114, 269, 474, 483 Cox V. McClenachan, 3 Dall. 478 615 Craig V. Missouri, 4 Pet. 408 524, 581 Crandall v. Nevada, 6 Wall. 35 80, 260, 454, 402, 463 Crowley v. Christensen, 137 U. S. 86 475, 483, 674 Crutcher v. Kentucky, 141 U. S. 47 425 Cummings v. Merchants' National Bank, 101 U. S. 153 260 Cummings v. Missouri, 4 Wall. 277 105, 585 Cunningham v. Mason & Brunswick Railroad, 109 U. S. 446 365 Curran i-. Arkansas, 15 How. 304 583 Dartmouth College Case, 4 Wheat. 518 118, 391, 532, 556 Davis V. Gray, 16 Wall. 203 365, 366 Decatur v. Paulding, 14 Pet. 497 424 De Chastellux v. Fairchild, 15 Penn. St. 18 348 Delaware Railroad Tax, 18 Wall. 206 262 Dobbins v. Erie County Commis- sioners, 16 Pet. 435 258, 267 Dodge V. Woolsey, 18 How. 331 89 Douglass V. County of Pike, 101 U. S. 677 274 Dred Scott v. Sandford, 19 How. 441 83, 114, 403, 405 Duncan, Petitioner, In re, 139 U. S. 449 641 Dunlap V. Black, 128 U. S. 40 ' 424 Eagle (The), 8 Wall. 15 327 Edwards v. Elliott, 21 Wall. 632 493 Edwards v. Kearzey, 96 U. S. 695 632, 639 TABLE OF CASES. XV Eilenbecker v. Plymouth County, 1:^,4 U. S. 31 674 Elk r. Wilkins, 112 U. S. 94 280,602 Essex Public Koad Board v. Skiu- kle, 140 U. S. 334 572 Evansville Bank v. Britton, 105 U. S. 322 260 Fargo V. Michigan, 121 U. S. 230 114, 400,474,479 Fashon v. Greenliow, 135 U. S. 713 568 Fenn v. Holme, 21 How. 481 320 Fisher v. Cockrell, 5 Pet. 248 333 Fisk V. Jefferson Police Jury, 116 U. S. 131 249, 474, 476, 568 Flanders v. Tweed, 9 Wall. 425 494 Fleming v. Page, 9 How. 603 2G4 Fletcher v. Peck, 9 Cranch, 87 555 Foster v. Kansas, 112 U. S. 201 474, 482 Foster v. Neilson, 2 Pet. 253 130, 322 Freehand ;;. Williams, 131 U. S. 405 569 Gaines v. Thompson, 7 Wall. 347 424 Garland, Ex parte, 4 Wall. 333 105, 165 Garnett, Petitioner, In re, 140 U. S. 362 Genessee Chief (The) i'. Fitzhugh, 12 How. 443 111, 133, 327 Geofroy v. Riggs, 133 U. S. 258 627 Georgia v. Stanton, 6 Wall. 50 314, 315, 347, 424 Gibbons v. Ogden, 9 Wheat. 1 80, 231, 394, 397, 442, 446, 447, 449, 454, 459, 462 Gilbert v. Priest, 65 Barb. 444 313 Gilman v. City of Philadelphia, 3 Wall. 713 454, 461, 462 Given i'. Wright, 117 U. S. 648 261 Gloucester Ferry Co. v. Pennsylva- nia, 114 U. S. 196 474, 475, 476, 481 Gon-shay-ee's Case, 130 U. S. 343 425 Goodrich v. Gutlirie, 17 How. 284 424 Gordon v. Hobart, 2 Sumner, 401 319 Gordon v. Longest, 16 Pet. 97 333, 336 Gordon v. United States, 2 Wall. 561 ; 117 U. S. 699 339, 349, 355 Greenwood v. Freight Co., 105 U. S. 13 536 Guy V. Baltimore, 100 U. S. 434 444 PAGE Hagar v. Reclamation District, 111 U. S. 701 666 Hagood V. Southern, 117 U. S. 52 365 Hall V. De Cuir, 95 U. S. 485 81 Hamilton v. St. Louis County Court, 15 Missouri, 3 60 Hans V. Louisiana, 24 Fed. Rep. 55 230, 423, 653 Hans V. Louisiania, 134 U. S. 1 330 363 Hardenburg v. Kidd, 10 California, 402 228 Hardin v. Jordan, 140 U. S. 371 360 Hart V. United States, 118 U. S. 62 179, 181 Hauenstein v. Lynham, 100 U. S. 483 322 Hayburn's Case, 2 Dall. 408 353 Head v. Amoskeag Manufacturing Co., 113 U. S. 9 667 Head Money Cases, 112 U. S. 580 264, 323, 324, 474, 481, 644 Heine v. Levee Commissioners, 19 Wall. 655 228 Henderson v. Mayor of New York, 92 U. S. 259 80, 269, 461, 463 Henderson's Distilled Spirits, 14 Wall. 44 494 Hepburn v. Griswold, 8 Wall. 603 135, 136, 142, 144 Hine (The) v. Trevor, 4 Wall. 555 112 Hinson v. Lott, 8 Wall. 148 251, 591 Hipp V. Babur, 19 How. 271 522 Holland v. Challen, 110 U. S. 15 522 Home Insurance Co. v. New York, 134 U. S. 594 671, 672 Howard v. Bugbee, 24 How. 461 549 Hucless V. Childrey, 135 U. S. 709 568 Hurtado v. California, 110 U. S. 516 493 Huse V. Glover, 119 U. S. 543 255 Hutchins v. Ring, 1 Wall. 53 522 Hylton V. United States, 3 Dall. 171 238, 628 Illinois Central Railroad v. Bos- worth, 133 U. S. 92 €00 XVI TABLE OF CASES. PAGE Insurance Co. v. Comstock, 16 Wall. 258 497 Jackson v. Twcntyman, 2 Pet. Vi6 335 Jones V. United States, 137 U. S. 202 371, 372, 624, 639 Justices (The) v. Murray, 9 Wall. 274 493, 498 Kauft'inan v. Wootters, 138 U. S. 285 672 Keramler's Case, 136 U. S. 436 649, 660, 663 Kendall v. United States, 12 Pet. 524 424 Kennard v. Louisiana, 92 U. S. 480 666 Kentucky v. Dennison, 24 How. GQ 638 Kentucky Railroad Tax Cases, 115 U. S. 321 668, 669 Kidd V. Pearson, 128 U. S. 1 425, 475, 483, 676 Kilbourn v. Thompson, 103 U. S. 168 412, 614 Killian v. Ebbinghaus, 110 U. S. 568 522 Klein, In re, 1 How. 277 110 Knox V. Exchange Bank, 12 Wall. 379 531 Knox V. Lee, 12 Wall. 457 136, 137 Knox County Court v. United States, 109 U. S. 229" 274 Kring v. Missouri, 107 U. S. 221 588 Kunzler v. Kohaus, 5 Hill, 317 110 Leeper v. Texas, 139 U. S. 712 664 Legal Tender Cases, 110 U. S. 421 137, 652 Leisy v. Hardin, 135 U. S. 100 425, 475, 483 Leloup V. Port of Mobile, 127 U. S. 640 269, 425, 474, 482 Lent V. Tillson, 140 U. S. 316 664 Lewis V. Cocks, 23 Wall. 466 522 Lexington (The), 6 How. 344 327 License Tax Cases, 5 Wall. 462 629 Liggett and Myers Tobacco Co. v. Fiuzer, 128 U. S. 514 622 Litchfield v. Webster County, 101 U. S. 773 365 Livingston v. Moore, 7 Pet. 469 493 Livingston v. Story, 11 Pet. 351 130 Loan Association v. Topeka, 20 Wall. 655 104, 105, 231, 243, 246 Lottawanna(The),21 Wall. 558 132, 134 Loughborough v. Blake, 5 Wheat. 317 264 Louisiana v. Jumel, 107 U. S. 711 365, 383 Louisiana v. Mayor of New Or- leans, 109 U. S. 285 567 Louisiana ex rel. Nelson v. St. Mar- tin's Parish, 111 U. S. 716 567 Louisville & Nashville Railroad v. Palmer, 109 U. S. 244 266, 566 Louisville, New Orleans &c. Rail- way Co. V. Mississippi, 133 U. S. 587 475 Lyng V. Michigan, 135 U. S. 161 425 McAlister v. United States, 141 U. S. , 370 McCall V. California, 136 U. S. 104 425, 475, 483 McCracken v. Hay ward, 2 How. 608 549 McCuUoch V. Maryland, 4 Wheat. 316 141, 142, 231, 256, 257, 259, 388, 390, 651, 652 McElrath v. United States, 102 U. S. 426 494 McGahey v. Virginia, 135 U. S. 662 267, 366, 568 Mackey v. United States, 10 Pet. 340 130 Mackin v. United States, 117 U. S. 348 505 Macon County v. Huidekoper, 134 U. S. 332 274 Magnolia (The), 20 How. 296 327 Mahew v. Thatcher, 9 Wheat. 129 130 Manning, In re, 139 U. S. 504 673 Marbury v. Madison, 1 Cranch, 137 384, 387, 424 Martin v. Hunter's Lessee, 1 Wheat. 304 63, 83, 98, 102, 227, 313, 342 Mason v. Haile, 12 Wheat. 370 546 Mayfleld's Case, 141 U. S. 107 426 TABLE OF CAS?:S. XVll PAOE Maynard r. Hill, 125 U. S. 190 ;$o5 Memphis & Little Hock Railroad v. Railroad Coinmissioners, 112 U. S. 609 266 Menendcz r. Holt, 128 U. S. 514 622 Mercantile Bank v. New York, 121 U. S. 138 267 Merrill v. Monticello, 138 U. S. 673 372 Merryman, Ex parte, Taney's C. Ct. Decisions, 246 349 Metropolitan Railroad v. District of Columbia, 132 U. S. 1 627 Miller i'. Mayor of New York, 107 U. S. 385 327, 474, 478 Minneapolis & St. Louis Railway I'. Beck with, 129 U. S. 26 671 Minnesota v. Barber, 136 U. S. 313 425, 475, 477, 484 Minor v. Happersett, 21 Wall. 162 661 Missouri Pacific Railway Co. v. Humes, 115 U. S. 512 669 Missouri Pacific Railway Co. v. Mackey, 127 U. S. 205 670 Mitchell I'. Harmony, 13 How. 113 626 Mitchell V. Smale, 140 U. S. 406 360 Montault v. United States, 12 How. 47 130 Montello (The), 11 Wall. 411 327 Moran v. New Orleans, 112 U. S. 69 80, 474, 480 Morgan v. Gay, 19 Wall. 81 494 Morgan v. Louisiana, 93 U. S. 217 266 Morgan's Steamship Co. v. Louisi- ana Board of Health, 118 U. S. 455 ^55, 474, 480, 594 Mormon Church v. United States, 136 U. S. 1 639, 645 Mugler V. Kansas, 123 U. S. 623 474, 483, 675 Munn V. Illinois, 94 U. S. 113 397, 666 Murdock v. City of Memphis, 20 Wall. 590 346 Murphy v. Ramsey, 114 U. S. 15 645 Nabob of Carnatic v. East India Company, 1 Ves. Jr. 371; S. C 2 Ves. Jr. 56 314 Nashville, Chattanooga &c. Railway Co. V. Alabama, 128 U. S. 96 425 Natal V. Louisiana, 139 U. S. 621 67:h Neagle, In re, 135 U. S. 1 427 Nelson v. St. Martin's Parish, 111 U. S. 717 274 New Hampshire c. Louisiana, 108 U. S. 76 330, 36:'., ;](;(;, 382 New Jersey (Tiie), 10 How. 5«6 327 New Jersey v. Wilson, 7 Cranch, 164 261 New Jersey v. Yard, 95 U. S. 104 565 New Orleans v. Houston, 119 U. S. 265 265 New Orleans Waterworks v. Lou- isiana Sugar Refining Co., 125 U. S. 18 569 New York v. Connecticut, 4 Dall. 4 314,382 Norfolk & Western Railroad Co. r. Pennsylvania, 136 U. S. 1 14 425, 475 Norris v. Jackson, 9 Wall. 125 495 North Missouri Railroad Co. v. Magulre, 20 Wall. 46 235 Ogden V. Blackledge, 2 Cranch, 272 348 O'Reilly v. Morse, 15 How. 62 621 Orleans (The), 11 Pet. 175 133, 327 Osborn c. Nicholson, 13 Wall. 654 657 Osborn v. United States Hank, 9 Wheat. 738 259, 266, 292, 314, 315, 316, 365, 366 Osborne v. United States, 91 U. S. 474 165 Owings V. Speed, 5 Wheat. 420 91 Pacific Insurance Co. v. Soule, 7 Wall. 433 238, 629 Packer v. Bird, 137 U. S. 661 360 Packet Co. v. Catlettsburg, 105 U. S. 559 255, 454 Packet Co. v. Keokuk, 95 U. S. 80 254, 594 Parsons v. Bedford, 3 Pet. 433 494, 496 Passenger Cases, 7 How. 283 80, 269, 461, 463 Pawlet V. Clark, 9 Cranch, 292 334 XVIU TAliLK OF CASES. I'fik V. riiicaito & Northwestern Hailroad, 1)4 U. S. 164 ;?()7 Pembina Mining Co. v. Penns^lva- nia, 125 U. S. 181 425, GGS, 609 Penhallow v. Doane, 3 Dall. 54 47, 121 Penn v. Lord Baltimore, 1 Ves. Sen. 444 314 Pennoyer v. McConnaughby, 140 U. S. 1 268, 364 Pennsylvania v. Wheeling &c. Bridge Co., 9 How. 647; 11 How. 528; 13 How. 518 619 Pennsylvania v. Wheeling &c. Bridge Co., 18 How. 421 619, 620 Penn.sylvania Raih'oad Co. v. Miller, 132 U. S. 75 425, 570 Pensacola Telegraph Co. v. West- ern Union Telegraph Co., 96 U. y. 1 269, 270 People i\ Compagnie G^nerale Transatlantiqae, 107 U. S. 59 269, 460 People V. Weaver, 100 U. S. 539 259 Pervear f. Commonwealth, 5 Wall. 475 649 Philadelphia &c Steamship Co. v. Pennsylvania, 122 U. S. 326 80, 269, 400, 425, 474, 478 Phillips V. Preston, 5 How. 278 494 Pickard i\ East Tennessee, Virginia &c. Uailroad, 130 U. S. 037 266 Pickard v. Pnllmau Southern Car Co., 117 U. S. 34 80,474,478 Pittsburg &c. Kailroad Co. v. South- western Pennsylvania Railway Co., 77 Penn. St. 173 246 Planter (The), 7 Pet. 324 327 Poindexter v. Greenhow, 114 U. S. 270 365, 366 Pollard V. Files, 2 How. 591 130 Pound r. Turck, 95 U. S. 459 454 Powell v. Pennsylvania, 127 U. S. 678 659 Presser v. Illinois, 116 U. S. 252 625, 645, 062 Prigg v. Pennsylvania, 16 Pet. 539 403 Provident Institution for Savings V. Jersey City, 1 13 U. S. 50(5 667 Pullman's Palace Car Co, v. Penn- sylvania, 141 U. S. 18 425 Pnmpelly v. Green Bay Co., 13 Wall. 166 247 Rahrer, Petitioner, In re, 140 U. S. 545 677 Railroad Co. v. Husen, 95 U. S. 465 81, 463, 465 Railroad Co. v. McLure, 10 Wall. 511 531 Railroad Co. r. Rock, 4 Wall. 177 531, 589 Ratterman v. Western Union Tele- graph Co., 127 U. S. 411 269, 425, 474, 482 Rector of Christ's Church v. County of Philadelphia, 24 How. 300 262 Reggie, Ex parte, 114 U. S. 642 638 Reynolds v. Stockton, 98 U. S. 145 645 Reynolds v. Stockton, 140 U. S. 254 631 Rhode Island v. Massachusetts, 12 Pet. 657 314 Robbins v. Shelby County Taxing District, 120 U. S. 489 81, 114, 269, 270, 474, 477, 483 Robinson v. Campbell, 3 Wheat. 211 319 Ross, Petitioner, In re, 140 U. S. 370 Ross V. Prentiss, 3 How. 771 346 Runkle v. United States, 122 U. S. 543 178 Sackett v. Andross, 5 Hill, 327 110 St. John V. Paine, 10 How. 557 327 St. Louis, Iron Mountain &c. Rail- way V. Vickers, 122 U. S. 360 517 St. Louis V. Rutz, 138 U. S. 226 360 Sands v. Manistee River Improve- ment Co., 123 U. S. 288 425 Santa Clara County v. Southern Pacific Railroad Co., 118 U. S. 394 660, 663 Satterlee v. Matthewson, 2 Pet. 413 348, 537, 588 Scholey v. Rew, 23 Wall. 331 264 TABLE OF CASES. XIX Scotland County v. Hill, 132 U. S. 107 274 Scott V. Neely, 140 U. S. lOG 357, 522 Seibert v. Lewis, 122 U. S. 284 569 Simmons v. Saul, 138 U. S. 439 631 Sinnot v. Davenport, 22 How. 227 80 Sioux City Railway Co. i-. Sioux City, 138 U. S. 98 571 Slaughter House Cases, 16 Wall. 36 101,408,411,432,057 Smith V. Alabama, 124 U. S. 4G5 425, 474, 479 Soon Hing v. Crowley, 113 U. S. 703 G59 Soulard v. United States, 4 Pet. 511 130 South Carolina v. Georgia, 93 U. S. 5 423 Spencer v. Merchant, 125 U. S. 345 670 Spies V. minois, 123 U. S. 131 518 Spraigue v. Thompson, 118 U. S. 90 474 Springer v. United States, 102 U. S. 586 237, 628 State V. Fleming, 7 Humphreys, 152 348 State Freight Tax (Case of), 15 AVall. 232 80, 269, 462 State Tonnage Tax Cases, 12 Wall. 204 253 Steamboat Orleans v. Phoebus, 11 Pet. 175 327 Stone V. Illinois Central Railroad, 116U. S. 347 474 Stone V. New Orleans & Northeast- ern Railroad, 116 U. S. 352 474 Stouteuburgh v. Hennick, 129 U. S. 141 425, 475, 483 Story V. Livingston, 13 Pet. 359 130 Sturges V. Crowninshield, 4 Wheat. 122 110,544,540 Telegraph Co. v. Texas, 105 U. S. 460 81 Telephone Cases, 126 U. S. 1 621 Tennessee v. Davis. 100 U. S. 257 321, 336 Tennessee v. Pullman Southern Car Co., 117 U. S. 34 80, 474 PAOE Tennessee v. Sneed, 96 U. S. 69 542 Terry, Exjiarte, 128 U. S. 289 510 Terry v. Anderson, 95 U. S. 528 545 Thaw V. Ritchie, 136 U. S. 519 627 Thomas Jefferson (The), 10 Wheat. 428 111,133,327 Thompson v. Railroad Companies, 6 Wall. 134 522 Thompson v. Whitman, 18 Wall. 457 633 Tomlinson v. Branch, 15 Wall. 460 365 Trade Mark Cases, 100 U. S. 82 622 Transportation Co. c. Parkersl)urg, 107 U. S. 691 255 Turpin v. Burgess, 117 U. S. 504 252, 592 United States v. Arjona, 120 U. S. 479 104, 618 United States v. Arredoudo, 9 Pet. 699 313, 322 United States v. Barlow, 132 U. S. 271 618 United States v. Battiste, 2 Sum- ner, 240 501 L'nited States v. Chicago, 7 How. 185 274 United States v. Clark County, 96 U. S. 211 274 United States v. Coombs, 12 Pet. 72 133, 327 United States ;•. Cruikshank, 92 U. S. 542 521, 662 United States v. Cnrtis, 4 Mason, 232 491 United States v. D'Auterive, 10 How. 609 130 United States v. Ferreira, 13 How. 40 353 United States r. HoUiday, 3 Wall. 417 470 United States v. Howland, 4 Wheat. 108 319 United States v. Jones, 119 U. S. 447 355 United States v. Kagama, 118 U. S. 375 402 XX TABLE OF CASES. United States v. King, 7 How. 833 130 United States v. Klein, 13 Wall. 128 165 United States v. Lee, 106 U. S. 190 328, 341, 350 United States v. Louisiana, 123 U. S. 32 264 United States v. Macon, 99 U. S. 582 274 United States v. Morris, 1 Curtis, 23 501 United States v. Page, 137 U. S. 673 179 United States v. Peters, 5 Cranch, 115 127 United States v. Petit, 114 U. S. 429 504, 505 United States v. The Pirates, 5 Wheat. 184 623 United States v. Railroad Company, 17 Wall. 322 265 United States v. Rauscher, 119 U. S. 407 323, 325 United States v. Reese, 92 U. S. 214 679, 680 United States v. Rice, 4 Wheat. 246 264 United States r. Rillieux, 14 How. 189 130 United States v. Schurz, 102 U. S. 378 386, 424 United States i-. Shive, 1 Baldwin, 610 501 United States v. Turner, 11 How. 663 130 United States v. Wilson, 7 Pet. 150 165 United States v. Yale Todd, 13 How. 52, note 353 University v. People, 99 U. S. 309 531 Van Brocklin v. Tennessee, 117 U. S. 151 266 Vanhorne's Lessee v. Dorrance, 2 Dall. 304 67, 71, 98, 191, 349 Veazie Bank v. Fenno, 8 Wall. 533 238, 629 Vicksburg &c. Railroad Co. v. Dennis, 116 U. S. 665 262 Vicksburg & Meridian Railroad v. Putnam, 118 U. S. 545 517 Virginia, Ex liarte, 100 U. S. 339 658, 665 Virginia Coupon Cases, 114 U. S. 269 568 Wabash & St. Louis Railway Co. V. Illinois, 118 U. S. 557 81, 114, 400, 474, 481, 599, 644 Walker v. Sauvlnet, 92 U. S. 90 494, 663 Wallach v. Van Riswick, 92 U. S. 202 600 Walling V. Michigan, 116 U. S. 446 269, 474, 484 Walston V. Nevin, 128 U. S. 578 670 AVard v. Maryland, 12 Wheat. 418 80 Waring v. Clarke, 5 How. 441 327 Washington University v. Rouse, 8 Wall. 439 562 Watson V. Mercer, 8 Pet. 88 539, 588 Welton V. Missouri, 91 U. S. 275 80, 269, 462, 464 Western Union Telegraph Co. v. Alabama, 132 U. S. 472 269, 425, 475, 482 Western Union Telegraph Co. v. Pendleton, 122 U. S. 347 81, 474, 482 Western Union Telegraph Co. v. Texas, 105 U. S. 460 463, 466 Weston V. Charleston, 2 Pet. 449 258, 259, 266 Wheaton v. Peters, 8 Pet. 591 620 Wheeler v. Jackson, 137 U. S. 245 271, 571 Wheeling &c. Bridge Co. v. Bel- mont Bridge Co., 138 U. S. 287 372 Whitehead v. Shattuck, 138 U. S. 146 522 Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1 474, 478 William Wells, Ex parte, 18 How. 307 165 Williams v. Conger, 125 U. S. 397 617 TABLE OF CASES. XXI Williamson v. New Jersey, 130 U. S. 189 266 Willson V. Blackbird Creelc Marsh Co., 2 Pet. 245 .'599, 454, 461 Wilson, Ex parte, 114 U. S. 417 .:')04, 50-5 Wilson V. Gaines, 103 U. S. 417 266 Wisconsin Central Railroad v. Price, 133 U. S. 496 266 Woodruff w. Parham, 8 Wall. 123 251, 463, 591 PABU Woodruff V. Trapnall, 10 Wall. 190 58.3 Worcester v. Georgia, 6 Pet. 515 401 Wurts V. Hoagland, 114 U. S. 606 667 Yarbrough, Ex parte, 110 U. S. 65 680 Yazoo & Mississippi Valley Rail- road ij. Thomas, 132 U. S. 174 266 Yerger, Ex parte, 8 Wall. 85 344 Yick Wo V. Hopkins, 118 U. S. 356 660, 662 York V. Texas, 137 U. S. 15 672 THE FRAMING OF THE CONSTITUTION. ^J^cjo "We are met here to commemorate an event lecture i. in our progress, in many respects inferior to ^"*™ uctoryo none in importance in our own history or in the history of the world. It is the formation of the Constitution of the United States, which, on this day, one hundred years ago, was adopted by the Convention which represented the iieoiile of the United States, and w^hich was then signed by the delegates w^ho framed it, and published as the final result of their arduous labors, — of their most careful and deliberate consideration, — and of a love of country as unmixed with selfishness as human nature is capable of. In looking at the names of those who signed the instrument, our sentiment of pious reverence for the work of their hands hardly permits us 1 This paper, which leads up to the Lectures delivered by Mr. Justice Miller before the classes in the Law School, is in substance the oration which he delivered on the 17th of September, 1887, at Philadelphia at "the celebration of the one hundredth anniver- sary of the framing and promulgation of the Constitution." Only such passages are omitted as treat of matters which are again discussed in the Lectures. 1 2 LECTURES ON CONSTITUTIONAL LAW. lkcture I. to discriminate by special mention of any. But Introductory. j^ j^ surely not in bad taste to mention that the name of George Washington is there as its first signer, and as president of the convention ; the man of whom it was afterwards so happily de- clared by the representatives of a grateful people, that he was " first in war, first in peace, and first in the hearts of his countrymen." He was the first man selected to fill the Chief Executive office of President created by the Constitution; and James Madison, another name found in the list of signers, filled the same office. James Wilson, of Pennsylvania, John Blair, of Virginia, and John Rutledge, of South Caro- lina, were made justices of the court established by that instrument, with a large view, among its other functions, of expounding its meaning. With no invidious intent it may be here said that one of the greatest names in American his- tory — Alexander Hamilton — is there as repre- senting alone the important State of New York ; his colleagues from that State having withdrawn from the convention before the final vote on the Constitution. Nor is it permissible, standing in this place and in this connection, to omit to point to the name of Benjamin Franklin, the venerable philosopher and patriot ; of Robert Morris, the financier of the Revolution ; and of Gouverneur Morris, the brilliant scholar and profound statesman. It is necessary to any just appreciation of the Constitution, whose presentation for acceptance to the people of the United States a hundred FORMATION OF THE CONSTITUTION. years ago on this day we comniemorate, that lecture i. some statement of its origin, and of the causes ^"^'■"•'"'^^'"■y- wliich led to it, should be iftade. The occasion requires that this shall be brief. The war of seven years, which was waged in Articles of con- support of the independence of these States, ^*^'^"''^*'*'°- former provinces of Great Britain, — an inde- pendence announced by the Declaration of July 4, 1776, already referred to, — the war which will always be known in the history of this country as the war of the Revolution, was con- ducted by a union of those States under an agreement between them called Articles of Con- federation. Under these articles each State was an integer of equal dignity and power in a body called the Congress, which conducted the affairs of the incipient nation. Each of the thirteen States which composed this confederation sent to Congress as many delegates as it chose, with- out reference to its population, its wealth, or the extent of its territory ; but the vote upon the passage of any law, or resolution, or action suggested, was taken by States, the members from each State, however numerous or however small, constituting one vote, and a majority of these votes by States being necessary to the adoption of the proposition. The most important matters on which Con- weakness of gress acted were but little else than recommen- tj^^i^ dations to the States, requesting their aid in the general cause. There was no power in the Congress to raise money by taxation. It could declare by way of assessment the amount each LECTURES ON CONSTITUTIONAL LAW. Lecture I. State sliould Contribute to the support of the Weakness of Government, but it had no means of enforcins; Congress under ^ • ^ them. compliance with this assessment. It could make requisitions on each State for men for the army which was fighting for them all, but the raising of this levy was wholly dependent upon the actioA of the States respectively. There was no authority to tax, or otherwise regulate, the import or export of foreign goods, nor to pre- vent the separate States from taxing property which entered their ports, though the property so taxed was owned by citizens of other States. The end of this war of the Revolution, which had established our entire independence of the crown of Great Britain, and which had caused us to be recognized theoretically as a member of the family of nations, found us wdth an empty treasury, an impaired credit, a country drained of its wealth and impoverished by the exhaustive struggle. It found us with a large national debt to our own citizens and to our friends abroad, who had loaned us their money in our desperate strait; and worst of all, it found us with an army of unpaid patriotic soldiers who had en- dured every hardship that our want of means coidd add to the necessary incidents of a civil war, many of whom had to return penniless to families whose condition was pitiable. For all these evils the limited and imperfect powers conferred by the Articles of Confedera- tion afforded no adequate remedy. The Con- gress, in which was vested all the authority that those articles granted to the General Govern- FOKMATION OF THE CONSTITUTION. 6 ment, struggled hopelessly and with constant lecture i. failure from the treaty of peace with Eno;land, J!^^^"^^^"^, "^ , ^ o 7 Congress under in 1783, until the formation of the new Consti- tbem. tution. Many suggestions were made for en- larging the powers of the Federal Government in regard to particular subjects. None were successful, and none proposed the only true remedy, namely, authority in the National Gov- ernment to enforce the powers which were en- trusted to it by the Articles of Confederation, by its own immediate and direct action on the peo- ple of the States. It is not a little remarkable that the sugges- Causes which tion which finally led to the relief, without wliich ^'^ '^ ^ '^"''^'^• as a nation we must soon have perished, strongly supports the philosophical maxim of modern times, — that of all the agencies of civilization and progress of the human race, commerce is the most efficient. What our deranged finances, our discreditable failure to pay our debts, and the sufferings of our soldiers could not force the several States of the American Union to attempt, was brought about by a desire to be released from the evils of an unregulated and burden- some commercial intercourse, both with foreign nations and between the several States. After many resolutions by State legislatures Action of vir- which led to nothing, one was introduced by ^'°**' Mr. Madison into that of Virginia, and passed on the twenty-first day of February, 1786, which appointed Edmund Randolph, James Madison Jr., and six others, commissioners, " to meet such commissioners as may be appointed by other LECTURES ON CONSTITUTIONAL LAW. Lectuuk I. Action of Vir- ginia. The Annapolis Couventiou. Congress reluc- tant to act. States in the Union, at a time and place to be aoreecl, to take into consideration the trade of the United States ; to examine the relative situ- ation and trade of the said States ; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony." This committee was directed to transmit copies of the resolution to the several States, with a letter requesting their concurrence, and propos- ing a time and place for the meeting. The time agreed upon was in September, 1786, and the place was Annapolis. Nine States appointed delegates, but those of five States only attended. These were New York, New Jersey, Pennsyl- vania, Virginia, and Delaware. Four other States appointed delegates who, for various rea- sons, did not appear, or came too late. Of course such a convention as this could do little but make recommendations. What it did was to suggest a convention of delegates from all the States, " to devise such further provisions as might appear to be necessary to render the Con- stitution of the Federal Government adequate to the exigencies of the Union." It also pro- posed that whatever should be agreed upon by such a convention should be reported to Con- gress, and confirmed by the legislatures of all the States. This resolution and an accompanying report were presented to Congress, which manifested much reluctance and a very unreasonable delay in acting upon it, and a want of any earnest FORMATION OF THE CONSTITUTION. 7 approval of the plan. But the proceedings of lecture i. the Annapolis convention had been laid before ta°nTto act^ "^ the legislatures of the States, where they met with a more cordial reception, and the action of several of them in approving the recommenda- tion for a convention, and appointing delegates to attend it, finally overcame the hesitation of Congress. That body, accordingly, on the 21st of February, 1787, resolved that, in its opinion, " it was expedient that on the second Monday it acts favorably. in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confedera- tion, and reporting to Congress and the several legislatures such alterations and provisions there- in as shall, when agreed to in Congress, and confirmed by the States, render the Federal Con- stitution adequate to the exigencies of govern- ment and the preservation of the Union." On the day thus recommended, — May 14th, The convention — delegates from Virginia and Pennsylvania™®^*^* met and adjourned from day to day until the 25th, during which period delegates from other States made their appearance. On that day the delegates of seven States, duly appointed, being present, the convention was organized by the election of General Washington as its president, at the sua;o;estion of Franklin. On the 28th the representation in the convention was increased to nine States ; and on the 29th Edmund Ran- dolph, delegate from Virginia, and governor of that State, inaugurated the work of the conven- LECTURES ON CONSTITUTIONAL LAW. Lkcture I. The Conv(!ntion meets. It frames tlie Constitution. Rhode Island not represented. Reasons for it. tion by a speech in wliicli he presented an out- line of a constitution for its consideration. From this time on, the convention labored assiduously and without intermission, until, on the seventeenth day of September, one hundred years ago, it closed its work by presenting a completed instrument, which, being subsequently ratified by the States, became the Constitution of the United States of America. All the States except Rhode Island were finally represented in the convention and took part in framing the instrument, a majority of the dele- gates of each State assenting to it. That State sent no delegate to the convention ; and when the Constitution was presented to it for ratifica- tion no convention w^as called for that purpose until after it had gone into operation as the organic law of the National Government. It was two years before she accepted it and became in reality a State of the Union. It is a matter for profound reflection by the pliilosophical statesman, that, while the most efficient motive in bringing the other States into this convention was a desire to amend the situation in regard to trade among the States, and to secure a uniform system of commercial regulation, as necessary to the common interest and permanent harmony, the course of Rhode Island was mainly governed by the, considera- tion that her superior advantages of location, and the possession of what was supposed to be the best harbor on the Atlantic coast, should not be subjected to the control of a Congress which FORMATION OF THE CONSTITUTION. t was by that instrument expressly authorized lecture i. ,, , 1 . • 1 1 J* • J • 1 Reasons for it. "to regulate commerce with loreign nations and among the several States," and which also de- clared that " no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another, nor any vessel bound to or from one State be obliged to enter, clear, or pay duties in another." That the s^^irit which actuated Rhode Island still exists, and is found in other States of the Union, may be inferred from the fact that at no time since the formation of the Union has there been a period when there were not to be found in the statute-books of some of the States acts passed in violation of this provision of the Con- stitution, imposing taxes and other burdens upon the free interchange of commodities, discrimi- nating against the productions of other States, and attempting to establish regulations of com- merce, which the Constitution says shall only be done by the Congress of the Vnited States. During the session of the Supreme Court which ended in May last ^ no less than four or five decisions of the highest importance were rendered, declaring statutes of as many differ- ent States to be void, because they were forbid- den by this provision of the Federal Constitution. We need not here pursue the detailed history The constitution of the ratification and adoption of the Constitu- ^^'^epted. tioii by the States. The instrument itself, and the resolution of Congress submitting it to the 1 October Term, 1886. 118 U. S.-122 U. S. 10 LECTURES ON CONSTITUTIONAL LAW. Lecture I. States, both provided that it should go into The Constitution , • i ij.ii • Ol j. Tr>^ accepted Operation when adopted by nine fetates. iideven of thein accepted it in their first action in the matter. North Carolina delayed a short time, and Rhode Island two years later changed her mind ; and thus the thirteen States which had united in the struggle for independence became a nation under this form of government. And transmitted Let US COUsidcr UOW tllC task wllicll the con- to Congress, vention undertook to perform, the difficulties which lay in its way, and the success which attended its efforts. In submitting to Congress the result of their labors, the convention accom- panied the instrument with a letter signed under its authority by its president, and addressed to the President of Congress. Perhaps no public document of the times so short, yet so impor- tant, is better worth consideration than this let- ter, dated September 17, 1787. From it I must beg your indulgence to read the follow- ing extracts : — , " Sir : — We now have the honor to submit to the consideration of the United States in Con- gress assembled that Constitution 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 com- merce, and the correspondent executive and judicial authorities, should be fully and effectu- ally vested in the general government of the Union ; but the impropriety of delegating such extensive trusts to one body of men " (meaning FORMATION OF THE CONSTITUTION. 11 Congress) " is evident. Hence results the neces- lecture i. c T p.. , • , • Tx • 1 • 1 And transmitted sity 01 a dirterent organization, it is obviously ^^^ Congress, impracticable in the federal government of these States to secure all the rights of independent sovereignty to each, and yet provide for the interests and safety of all." Again: — " In all our deliberations on this subject we kept steadily in 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 consid- eration, seriously and deeply impressed on our minds, led each State in the convention to be less rigid on points of inferior magnitude than might otherwise be expected ; and thus the Con- stitution which we now present is the result of a spirit of amity, and of that natural deference and concession which the peculiarity of our polit- ical situation rendered indispensable." The instrument framed under the influence of these principles is introduced by language very similar. The opening sentence reads : " We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our pos- terity, do ordain and establish this Constitution for the United States of America." This Constitution has been tested by the Opposition to it. experience of a century of its operation, and in the light of this experience it may be well 12 LECTUKES ON CONSTITUTIONAL LAW. Lecture I. to coiisider its valuG. Many of its most im- Opposition to it. poj.^.^^^^, features met with earnest and vigorous opposition. This opposition was shown in the convention which presented it, and tlie conven- tions of the States called to ratify it. In both, the struggle in its favor was arduous and doubt- ful, the opposition able and active. Objections urged Perhaps the wisdom of this great instrument against It. canuot be better seen than by reconsidering at this time some of the most important objections then made to it. One of these which caused the opposition of several delegates in the Constitu- tional Convention, and their refusal to sign it, was the want of a well-defined bill of rights. The royal charters of many of the colonies, and the constitutions adopted by several States after the revolt, had such declarations, mainly asser- tions of personal rights and of propositions in- tended to give security to the individual in his right of person and property against the exer- cise of authority by governing bodies of the State. The Constitution was not void of such protection. It provided for the great writ of habeas corpus, the means by which all unlawful imprisonments and restraints upon personal lib- erty had been removed in the English and American courts since Magna Charta was pro- claimed ; and it declared that the privilege of that writ should -not be suspended, unless in cases of rebellion or invasion the public safety should require it. The Constitution also de- clared that no ex post facto law or bill of attainder should be passed by Congress ; and FORMATION OF THE CONSTITUTION. 13 no law impairing the obligation of contracts by lecture i. any State. It secured the trial by jury of all "^^^^ "^'^ crimes within the State where the offence was committed. It defined treason so as to require some overt act, which must be proved by two witnesses, or confessed in open court, for con- viction. It can hardly be said that experience has demonstrated tlie sufficiency of these for the purpose which the advocates of a bill of rights had in view, because, upon the recommendation of several of the States made in the act of rati- fying the Constitution, or by legislatures at their first meeting subsequently, twelve amendments were proposed by Congress, ten of which were immediately ratified by the requisite number of States, and became part of the Constitution within two or three years of its adoption. In the presentation and ratification of these amendments, the advocates of a specific bill of rights, and those who were dissatisfied with the strong power conferred on the Federal Govern- ment, united ; and many statesmen who leaned to a strono; o-overnment for the nation were will- ing, now that the Government was established, to win to its favor those who distrusted it by the adoption of these amendments. Hence a very slight examination of them shows that all of them are restrictions iipon the power of the General Government, or upon the modes of exercising that power, or declarations of the powers remaining with the States and with the people. They establish certain private rights of 14 LECTURES ON CONSTITUTIONAL LAW. Lecture l persons and property which the General Govern- objoctions urged ^^^^^^^ ^ ^^^^ violato. As regards these hist, against it. "^ » . . , it is not believed that any acts of intentional oppression by the Government of the United States have called for serious reprehension ; but, on the contrary, history points us to no govern- ment in which the freedom of the citizen and the rights of property have been better protected and life and liberty more firmly secured. As regards the question of the relative dis- tribution of the powers necessary to organized society, between the Federal and State govern- ments, more will be said hereafter. As soon as it became apparent to the con- vention that the new government must be a nation, resting for its support upon the people over whom it exercised authority, and not a league of independent States, brought together under a compact on which each State should place its own construction, the question of the relative power of those States in the new gov- ernment became a subject of serious difference. There were those in the convention who insisted that in the legislative body, where the most important powers must necessarily reside, the States should, as in the Articles of Confederation, stand upon a perfect equality, each State hav- ing but one vote ; and this feature was finally retained in that part of the Constitution which vested in Congress the election of the President, when there should be a failure to elect by the electoral college in the regular mode prescribed by that instrument. The contest in the conven- FORMATION OF THE CONSTITUTION. 15 tion beccame narrowed to the composition of the lf.cturk i. Senate, after it had been determined that the ♦^"J«^^|°"« ""'sed ' ^ against it. legislature should consist of two distinct bodies, sitting apart from each other, and voting sepa- rately. One of these was to be a popular body, elected directly by the people at short intervals. The other was to be a body more limited in numbers, with longer terms of office ; and this, with the manner of their appointment, was designed to give stability to the policy of the Government, and to be in some sense a restraint upon sudden impulses of popular will. With regard to the popular branch of the legislature, there did not seem to be much diffi- culty in establishing the proposition, that in some general way each State should be repre- sented in it in proportion to its population, and that each member of the body should vote with equal effect on all questions before it. But when it was sought by the larger and more populous States, as Virginia, Pennsylvania, and Massachusetts, to apply this principle to the composition of the Senate, the resistance of the smaller States became stubborn, and they refused to yield. The feeling arising under the discus- sion of this subject came nearer causing the disruption of the convention than any which agitated its deliberations. It was finally settled by an agreement that every State, however small, should have two representatives in the Senate of the United States, and no State should have any more ; and that no amendment of the Constitu- tion should deprive any State of its equal suf- 16 LECTURES ON CONSTITUTIONAL LAW. Lecture I. fragc ill tliG Senate without its consent. As the objoctions urged g(3j-^.^^e j^^s the Same power in enactini^ laws as against it. • i i < the House of Representatives, and as each State has its two votes in that body, it will be seen that the smaller States secured, when they are in a united majority, the practical power of defeating all legislation which was unacceptable to them. What has the experience of a century taught us on this question ? It is certainly true that there have been many expressions of dissatisfac- tion with the operation of a principle which gives to each of the six New England States, situated compactly together, as much power in the Senate in making laws, in ratifying treaties, and in confirming or rejecting appointments to office, as is given to the great State of New York, which, both in population and wealth, exceeds all the New England States, and nearly if not quite equals them in territory. But if we are to form an opinion from demon- strations against, or attempts to modify, this feature of the Constitution, or any feature which concerns exclusively the functions of the Senate, we shall be compelled to say that the ablest of our public men, and the wisdom of the nation, are in the main satisfied with the work of the convention on this point after a hundred years of observation. And it is believed that the existence of an important body in our system of government, not wholly the mere representative of population, has exercised a v/holesome con- servatism on many occasions in our history. rORMATION OF THE CONSTITUTION. 17 Another feature of the Constitution which lecture i. met with earnest opposition was the vesting of ^^^J.*^'^*'""'* '""s^'^ ^ ^ _ ^ agaiust It. the executive power in a single magistrate. While Hamilton would have preferred a mon- arch, with strong restriction on his authority, like that in England, he soon saw that even his great influence could not carry the convention with him. There were not a few members who preferred in that matter the system of a single body (as the Congress) in which should be reposed all the power of the nation, or a coun- cil, or executive committee, appointed by that body and responsible to it. There were others who preferred an executive council of several members, not owing its appointment to Con- gress. It was urged against our Constitution by many liberty-loving men, both in the convention and out of it, that it conferred upon the execu- tive, a single individual, whose election for a term of four years was carefully removed from the direct vote of the people, powers dangerous to the existence of free government. It was said that with the appointment of all the officers of the Government, civil and military, the sword and the purse of the nation in his hands, the power to prevent the enactment of laws to which he did not assent, — unless they could be passed over his objection by a vote of two-thirds in each of the two legislative houses, — and the actual use of this power for four years without interruption, an ambitious man, of great per- sonal popularity, could establish his power dur- 18 LECTURES ON CONSTITUTIONAL LAW. Lecture I. ing liis owii life and transmit it to his family as Objections urged ^ perpetual dynastv. against it. i i ^ ^ ^ ^ Perhaps of all objections made to important features of the Constitution this one had more plausibility, and was urged with most force. But if the century of our experience has demon- strated anything, it is the fallacy of this objec- tion and of all the reasons urged in its support. The objection that the electoral college was a contrivance to remove the appointment of the President from the control of popular suffrage, was, if it had any merit, speedily overcome without any infraction of tlie Constitution by the democratic tendencies of the people. The electors composing the college, who, it was sup- posed, would each exercise an independent judg- ment in casting his vote for President, soon came to be elected themselves on distinct pledges made beforehand, that they would vote for some person designated as a popular favorite for that office. So that at the present time the electors of each State, in sending to the capital their votes for President, do but record the in- struction of a majority of the citizens voting in that State. The term of four years for the Presidential ofhce is not now deemed too long hy any one, while there are many who would desire that it should be made longer, say seven or ten years. The power of appointment to office requires the consent of the Senate to its exercise ; and that body has asserted its right of refusing that assent so courageously and so freely, that there FORMATION OF THE CONSTITUTION. 19 can be no real fear of its successful use by the lecture i. President in a manner to endanger the liberty aga^nsut! ^^^^ of the country, unless the Senate itself shall be utterly corrupted. • Nor can the means for such corruption be obtained from the public treasury, unless Congress in both branches shall become so degenerate as to consent to such use. Nor have we had in this country any want of ambitious men, who have earnestly desired the Presidency, or, having it once, have longed for a continuation of it at tlie end of the lawful term. x'Vnd it may be said that it is almost a custom when a President has filled his office for one term acceptably, that he is to be re-elected, if his political party continues to be a popular majority. Our people have also shown the usual hero-worship of successful military chief- tains, and rewarded them by election to the Presidency. In proof of this it is only neces- sary to mention the names .of Washington, Jackson, Harrison, Taylor, and Grant. In some of them there has been no want of ambi- tion, nor of the domineering disposition, which is often engendered by the use of military power. Yet none of these men have had more than two terms of the office. And though a few years ago one of the most largely circulated newspapers of the United States wrote in its paper day after day articles headed " Cassarism," charging danger to the republic from one of its greatest benefactors and military chiefs, it ex- cited no attention but derision, and deserved no other. 20 LECTURES ON CONSTITUTIONAL LAW. Lecture I. There is no danger in this country from the agiinstT "'^''* power reposed in the Presidential office. There is, as sad experience shows, far, far more danger from nihiUsm and assassinatj^n, than from am- bition in our pubHc servants. So far have the incumbents of the Presidency, during the hundred years of its history, been from grasping, or attempting to grasp, powers not warranted by the Constitution, and so far from exercising the admitted power of that office in a despotic manner, that a candid student of our political history during that time cannot fail to perceive that no one of the three great depart- ments of the Government — the Legislative, the Executive, and the Judicial — has been more shorn of its just powers, or crippled in the exercise of them, than the Presidency. In regard to the function of appointment to office, — perhaps the most important of the ex- ecutive duties, — the spirit of the Constitution requires that the President shall exercise freely his best judgment and follow his most sincere conviction in selecting proper men. It is undeniable that for many years past, by the gradual growth of custom, it has come to pass that in the nomination of officers by the President, he has so far submitted to be governed by the wishes and recommendations of interested members of the two Houses of Congress, that the purpose of the Constitution in vesting this power in him, and the right of the public to hold him personally responsible for each and every ap- pointment he makes, are largely defeated. In FORMATIOIS' OF THE CONSTITUTION. 21 other words, the great principle lying at the lecture i. Objections agaiust it. foundation of all free governments, that the leg- *"''" '""** ^^^^ islative and executive departments shall be kept separate, is invaded by the participation of members * of Congress in the exercise of the appointing power. History teaches us in no mistaken language how often customs and practices, which were originated without lawful warrant and opposed to the sound construction of the law, have come to overload and pervert it ; as commentators on the text of Holy Scripture have established doc- trines wholly at variance with its true spirit. Without considering many minor objections made to the Constitution during the process of its formation and adoption, let us proceed to that one which was the central point of contest then, and which, transferred to the question of construing that instrument, has continued to divide statesmen and politicians to the present time. The convention was divided in opinion between those who desired a strong national government, capable of sustaining itself by the exercise of suitable powers, and invested by the Constitu- tion with such powers, and those who, regarding the Articles of Confederation as a basis, proposed to strengthen the General Government in a very few particulars, leaving it chiefly dependent on the action of the States themselves for its sup- port and for the enforcement of its laws. Let us deal tenderly with the Articles of Con- y^*^"^^^^ ^'^' '^ _ _ Articles of federation. We should here, on this glorious confederation. 22 LECTURES ON CONSTITUTIONAL LAW. Lecture I. anniversary, feel grateful for any instrumentality TrulTof"^'^' which helped us in the days of our earliest strug- Confederatiou. gle. Very few are now found to say anything for these Articles, yet tliey constituted the nom- inal bond which held the States together during the war of independence. It must be confessed that the sense of a common cause and a common danger probably did more to produce this united effort than any other motives. But the Arti- cles served their purpose for the occasion ; and though, when the pressure of imminent danger was removed, they were soon discovered to be a rope of sand, let them rest in a peaceful, honor- able remembrance. Federal and State- Between tliose who favorcd a strong govern- Risht principles ^^ f ^^iQ Uuiou and thosc who were willing of Construction. o to grant it but little power at the expense of the States, there were various shades of opinion ; and while it was the prevailing sentiment of the convention that " the greatest interest of every true American was the consolidation of the Union," there were many who were unwilling to attain this object by detaching the necessary powers from the States and conferring them on the National Government. These divergent views had their effect, both in the constitutional convention and in those held for its ratification. Around this central point the contention raged, and it was only by compromises and concessions, dictated by the necessity of each yielding something for the common good, — so touchingly mentioned in the letter of the convention to Congress, — that FOEMATION OF THE CONSTITUTION. 23 the result was finally reached. The patriotism lecture i. d.ii £ ■l'^ ± £ 1 J. T Federal and State the love or liberty oi each party were imdis- j,j,,j^^ principles puted. The anxiety for a government which oi construction.- would best reconcile the possession of powers essential to the State governments with those necessary to the existence and efficiency of the government of the Union, was equal ; and the long struggle since the adoption of the Consti- tution, on the same line of thought, in its con- struction, shows how firmly these different views were imbedded in our political theories. The party which came to be called the party of State's Rights has always dreaded that the alleged supremacy of the national power would overthrow the State governments, or control them to an extent incompatible with any useful existence. Their opponents have been equally confident #that powers essential to the successful conduct of the General Government, which either expressly or by implication are conferred on it by the Constitution, were denied to it by the principles of the State's Right party. The one believed in danger to the States, from the theory which construed with a free and liberal rule the grants of power to the General Government, and the other believed that such a construction of the Constitution was consistent with the purpose and spirit of that instrument, and essential to the perpetuity of the nation. If experience can teach anything on the sub- ject of theories of government, the late civil war teaches unmistakably that those who believed the source of danger to be in the strong powers 24 LECTURES ON CONSTITUTIONAL LAW. LEf TURF, I. of the Federal Government were in error, and Fe.ierahind state ^^^^^ ^j^^^^ ^^j^,^ believed that such powers were of coiistnu-tioii. necessary to its safe conduct and continued existence were in the right. The attempted de- struction of the Union by eleven States, which were part of it, and the apparent temporary suc- cess of the effort, were undoubtedly due to the capacity of the States under the Constitution for concerted action, by organized movements, with all the machinery ready at hand to raise armies and establish a central government. And the ultimate failure of the attempt is to be attributed with equal clearness to the exercise of those powers of the General Government, under the Constitution, which were denied to it by extreme advocates of State Rights. And that this might no longer be matter of dispute, three new amend- ments to the Constitution were adopted at the close of that struggle, which, while keeping in view the principles of our complex form of State and Federal government, and seeking to disturb the distribution of powers among them as little as was consistent with the wisdom acquired by a sorrowful experience, confer additional powers on the government of the Union, and place addi- tional restraints upon those of the States. May it be long before such an awful lesson is again needed to decide upon disputed questions of con- stitutional law. It is not out of phice to remark that, while the pendulum of public opinion has swung with much force away from the extreme point of State's Right doctrine, there may be danger of FORMATION OF THE CONSTITUTION. 25 its reacliing an extreme point on the other side. Lecture i. In my opinion, the just and equal observance <^i R^rhr )rinci ks^ the rights of the States, and of the General Gov- of Construction, ernment, as defined by the present Constitution, is as necessary to the permanent prosperity of our country, and to its existence for another century, as it has been for the one whose close we are now celebrating. Having considered the objections originally Division of made to this great work, in the light of its oper- po^'ers into legis- "-^ ^ , . . lative, executive, ation for a century, what shall we say of it in and judicial, reo-ard to those great features which were more generally acceptable ? The doctrine of Montes- quieu, then in the height of his influence, that the powers essential to all governments should be distributed among three separate bodies of magis- tracy, — namely, legislative, executive, and judi- cial, — was, as Madison affirms in number XL VII of the Federalist, recognized by the convention as the foundation of its labors. The apparent departure from that principle in making the Senate a participant in the exercise of the ap- pointing powder, and the treaty-making power, works well, because the initiative remains with the Executive. The power of that body to try impeachments of public officers for high crimes and misdemeanors, a function essentially judi- cial, while it has not produced any substantial injury, has, perhaps, operated as a safety-valve in cases of great popular excitement. As an efficient remedy, it must be conceded to be a failure. But the harmony and success with which the and judicial. 26 LECTURES ON CONSTITUTIONAL LAW. lectuue I. three great subdivisions of the organized govern- Division of ment of the Constitution have co-operated in the powers into legis- i lative, executive, growth, prosperity, and happiness of this great people, constitute the strongest argument in favor of the organic law, which governs them all. It is the first successful attempt, in the history of the world, to lay the deep and broad foundations of a government for millions of people and an unlimited territory, in a single written instru- ment, framed and adopted in one great national effort. This instrument comes nearer than any of political origin to Rousseau's idea of a society founded on social contract. In its formation, States and individuals, in the possession of equal rights, — the rights of human nature common to all, — met together and deliberately agreed to give up certain of those rights to government for the better security of others ; and that there might be no mistake about this agreement it was reduced to writing, with all the solemnities which give sanction to the pledges of mankind. Other nations speak of their constitutions, which are the growth of centuries of govern- ment, and the maxims of experience, and the traditions of ages. Many of them deserve the veneration which they receive ; but a constitu- tion, in the American sense of the word, as accepted in all the States of North and South America, means an instrument in writing, defin- ing the powers of government, and distributing those powers among different bodies of magis- trates for their more judicious exercise. The FORMATION OF THE CONSTITUTION. 27 Constitution of the United States not only did lecture i. this as reo-ards a national government, but it ^'^'^'°" *^/ . ^ o 7 powers into legi»- establislied a federation of many States by the i-itive, executive, same instrument, in which the usual fatal de- ^° ^" '°'* " fects in such unions have been corrected with such felicity, that during the hundred years of its existence the iniion of the States has grown stronger, and has received within that Union other States exceeding in number those of the original federation. It is not only the first important written con- The success of the stitution found in history, but it is the first one """^ ^"'■'° °/ '^ ' government. which contained the principles necessary to the successful confederation of numerous powerful States. I do not forget, nor do I mean to disparage, our sister, the federal republic of Switzerland : but her contmuance as an inde- pendent power in Europe is so largely due to her compact territory, her inaccessible moun- tains, her knowledge of the necessity of union to safety, and the policy of her powerful neigh- bors which demands of each other the recogni- tion of her rights, that she hardly forms an exception. Switzerland stands to-day — so may she ever stand — as the oldest witness to the capacity of a republican federation of States for sound government, for the security of free- dom, and resistance to disintegrating tendencies. When we consider the results of confedera- tion in the Olympic Council, and the Achaian League of ancient history, and in modem tunes in the States of Holland and the old German Empire, we must admit that the United States 28 LECTURES ON CONSTITUTIONAL LAW. Lecture I. present the most remarkable, if not the only suc- '^^^ form oT^ *^^ cessful, happy, and prosperous, federated govern- government. ment of the world. The growth of Let US cousidcr for a moment the evidence of the United States, ^j^-^^ ^j^^^^ ^^le Constitution was finally ratified, and Rhode Island also accepted it, the Govern- ment was composed of thirteen States. It now numbers thirty-eight. The inhabited area of those States was found between' the Allegheny Mountains and the Atlantic Ocean, a region which, when we now look over a map of the United States, seems to be but the eastern bor- der of the great republic. Its area now includes all the territory between the Atlantic and Pacific Oceans, — a distance of over three thousand miles east and west, — and between the St. Lawrence and the Great Lakes on the north and the Gulf and States of Mexico on the south. Besides these thirty-eight States, the remainder of this immense region is divided into eight Territories, with an organized government in each, several of which are ready to be admitted into the Union as States, under a provision of the Constitution on that subject, and in accord- ance with the settled policy of the nation. The thirteen States which originally organized this Government had a population believed to be, in round numbers, three millions, many of whom were slaves. To-day it seems probable that sixty millions are embraced in the United States, in which there breathes no soul who owns any man master. I have already suggested the impoverished FOEMATION OF THE CONSTITUTION. 29 condition of the country at the close of the Rev- lecture i. olutionary war. To-day I do not hesitate to r",^T?«?'* '^ _ "^ the L niteu States. make the assertion, that if you count only that which is real wealth, and not accumulated capi- tal in the shape of evidences of debt, — which is but a burden upon such property, — I mean, if you count lands and houses and furniture, and horses and cattle and jewels, — all that is tangi- ble and contribi^tes to the comfort and pleasure of life, — the United States to-day is the wealth- iest country upon the face of the globe, and is the only great government which is so rapidly paying off its national debt that it is begging its creditors to accept their money not yet due, with a reasonable rebate for interest. Under the Government established by this Constitution we have, in the century which we are now overlooking, had three important Avars, such as are always accompanied by hazardous shocks to all governments. In the first of these we encountered the British Empire, the most powerful nation then on the globe, — a nation which had successfully resisted Napoleon, with all the power of Europe at his back. If we did not attain all we fought for in that contest, we displayed an energy and courage which com- manded for us an honorable stand among the nations of the earth. In the second, — the war with Mexico, — while our reputation as a warlike people suffered no diminution, we made large accessions of valuable territory, out of which States have been since made members of the Union. 30 LECTURES ON CONSTITUTIONAL LAW. Lecture I. The last war, — tliG recent civil war, — in the The growth of j^^^^Yiber of men ena;aared in it, in the capacity the United btates. . . of the weapons and instruments of destruction brought into operation, and in the importance of the result to humanity at large, must be esteemed the greatest war that the history of the world presents. It was brought about by the attempt of eleven of the States to destroy the Union. This was resisted by the Government of that Union under the powers granted to it by the Constitution. Its results were the emanci- pation of three millions of slaves, the suppression of the attempt to dissever the Union, the resump- tion of an accelerated march in the growth, prosperity, and happiness of this country. It also taught the lesson of the indestructibility of the Union, of the wisdom of the principles on which it is founded, and it astonished the nations of the world and inspired them with a respect which they had never before entertained for our country. I venture to hope that, with the earnest gaze of the wisest and ablest minds of the age turned with profound interest to the experiment of the federative system, under our American Constitu- tion, it may suggest something to relieve the nations of Europe from burdens so heavy that if not soon removed they must crush the social fabric. Those great nations cannot go on for- ever adding millions upon millions to their pub- lic debts, mainly for the support of permanent standing armies, while those armies make such heavy drafts upon the able-bodied men whose FORMATION OF THE CONSTITUTION. 31 productive industry is necessary to the support lfxturk i. of the people and of the government. "^uS'sle. I need not dwell on this unpleasant subject further than to say that these standing armies are rendered necessary by the perpetual dread of war with neighboring nations. In the principles of our Constitution by which the autonomy and domestic government of each State are preserved, while the supremacy of the General Government at once forbids wars between the States, and enables it to enforce peace among them, we may discern the elements of political forces sufficient for the rescue of European civili- ♦ zation from this great disaster. Do I claim for the Constitution, whose creation we celebrate to-day, the sole merit of the won- derful epitome which I have presented to you of the progress of this country to greatness, to pros- perity, to happiness, and to honor? Nay, I do not ; though language used by men of powerful intellect and great knowledge of history might be my justification if I did. Mr. Bancroft, the venerable historian, who has devoted a long and laborious life to a history of his country that is a monument to his genius and his learning, says of the closing hours of the convention : " The members were awe-struck at the result of their counsels ; the Constitution was a nobler work than any one of them believed possible to devise." And he prefaces the volume of his invaluable history of the formation of the Constitution with a sentiment of Mr. Gladstone, the greatest living statesman of England, who 32 LECTURES ON CONSTITUTIONAL LAW. Lecture I. Said : " As the British constitution is the most Thegrowthof g^^Jtle orffanism which has proceeded from the Uuiteu States. o i^ ^ progressive history, so the American Constitu- tion is tlie most wonderful work ever struck off at a given time by the brain and purpose of man." And while I heartily indorse this, and feel it impossible to find language in which to express my admiration and my love for the Constitution of the United States, and my profound belief that the wisdom of man, unaided by inspiration, has produced no writing so valuable to humanity, i I should fail of a most important duty if I did not say on this public occasion, that no amount of wisdom in a constitution can produce wise government, unless there is a suitable response in the spirit of the people. The Anglo-Saxon race, from whom we inherit so much that is valuable in our character, as well as our institutions, has been remarkable in all its history for a love of law and order. While other peoples, equally cultivated, have paid their devotion to the man in power, as representative of the law which he enforces, the English people, and we their descendants, have venerated the law itself, looking past its administrators, and giving our allegiance and our obedience to the princi- ples which govern organized society. It has been said that a dozen Englishmen or Ameri- cans, thrown on an uninhabited island, would at once proceed to adopt a code of laws for their government, and elect the officers who were to enforce them. And certainly this proposition FORMATION OF THE CONSTITUTION. 33 is borne out by the early liistory of our emi- lecture i. grants to California, where every mining camp t^i^g'^united states organized into a political body, and made laws for its own government, which were so good that Congress adopted them until they should be repealed or modified by statute. I but repeat the language of the Supreme Conclusion. Court of the United States when I say that in this country the law is supreme. No man is so high as to be above the law. No officer of the Government may disregard it with impunity. To this inborn and native regard for law, as a governing power, we are indebted largely for the wonderful success and prosperity of our people, for the security of our rights; and when the highest law to which we pay this homage is the Constitution of the United States, the history of the world has presented no such wonder of a prosperous, happy civil government. Let me urge upon my fellow-countrymen, and especially upon the rising generation of them, to examine with careful scrutiny all new theories of government and of social life, and if they do not rest upon a foundation of veneration and respect for law as the bond of social existence, let them be distrusted as inimical to human happiness. And now let me close this address with a quo- tation from one of the ablest jurists and most profound commentators upon our laws, — Chan- cellor Kent. He said, fifty years ago : " The Government of the United States was created by the free voice and joint will of the people of 34 LECTURES ON CONSTITUTIONAL LAW. Lecture I, America for their common defence and general Conclusion. welfare. Its powers apply to those great inter- ests which relate to this country in its national capacity, and which depend for tlieir stability and protection on the consolidation of the Union. It is clothed with the principal attributes of sov- ereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of our national greatness." NOTES UPON LECTURE I. The Constitution of the United States, like lecture i. all systems of government which are permanent, ^ht^o^tcome^of''' had its origin in the history and necessities of previous history. the people through whose instrumentality and for whose benefit it was formed. Driven by those necessities, the people of the United Colo- nies assumed and exercised the national powers of a federative government, before any written charter was made. The very Act of Separation assumes this fact. It is not the Declaration of thirteen individual States, but of "the RejDre- sentatives of the United States of America, in General Congress assembled." In Colonial days more than one effort had been made to secure a local union of Colonies in different parts of the country. These doubtless contributed more or less to the desire for unity and nationality which eventually found expres- sion in the Constitution.^ In 1765 an American Congress assembled at New York, but it was a deliberative body only, with no governmental functions, and no powers, executive or legislative. On the 5th of Sep- 1 Bancroft's History of the United States, Last Revision, vol. 1, pp. 291, 292 ; 2 lb. pp. 74, 75 ; 6 lb. pp. 7, 8. 35 36 LECTURES ON CONSTITUTIONAL LAW. Lecture I. tember, 1774, tliG first Continental Congress met in Philadelphia. When it adjourned it provided for a second Congress to meet in Philadelphia in the following May. Before that time arrived the battles of Lexington and Concord had taken place. The Congress of Tliis Outbreak of a state of war found in each 1775 exercises Colouv or ProviucG an Organized arovernment National powers. '^ ^ .... witli separate functions, exercising a limited sovereignty under the king of Great Britain. Many of the broader powers and functions of National Sovereignty, which the Constitution now places in the government of the United States, then resided in the British king and Par- liament. When British sovereignty fell, such powers were assumed and exercised, without question, by the Congress of the United Colonies, before the United States existed as an indepen- dent nation ; months before the Articles of Con- federation were agreed to ; years before they became operative by receiving the assent of all the States. They were never enjoyed or exer- cised by the States separately ; and consequently, as an historic fact, independently of theory, they could not have been retained when the States conferred upon the general Government other enumerated powers in the Articles of Confedera- tion. The United States Uucousciously to themsclvcs the people of the becomes a nation. United States wcrc absorbcd into a new nation- ality by the very fact of their combined resis- tance to Great Britain. They carried on war; they officered and maintained armies ; they NOTES UPON LECTURE I. 37 commissioned vessels of war ; they borrowed lecture i. The United becomes a nation. money and issued evidences of debt theref or ; '^^^ ^'^^'"'^ ^'^'^^ they created prize courts ; they acquired terri- tory and determined what the nature of its civil- ization should be ; they made treaties with for- eign powers ; and in many ways, both before and after the adoption of the Articles of Con- federation, they exercised the highest powers of sovereignty. This Congress was both the Executive and the Legislature of the Nation. It was the body which framed the Articles of Confederation, and many of its members were also in the Conven- tion which framed the Constitution of the United States. Unless that Constitution is to be con- strued theoretically, and without regard to the incidents of the national history of which it was the outcome, a knowledge of what that Congress did, derived from historical investigation, must help us in comprehending what sort of a govern- ment the framers of the Constitution intended to establish. To cover this whole ground would be to write the legislative history of those event- ful fourteen years. I select from all its legis- lation three subjects: 1, The Appellate Prize Courts ; 2, The Treaties negotiated with Foreign Powers ; 3, The acquisition of the territory to the northwest of the Ohio, and the exclusion of slavery from it. 1. Appellate Prize Courts of the Revolution. Soon after hostilities began, representatives Appellate Prize of the United Colonies assembled together in i{evoiut*ion.'^ 38 LECTURES ON" CONSTITUTIONAL LAW. Lecture I. Appellate Prize Courts of the Revolution. Colonial Admi- ralty Courts. Pliiladeljohia with the purpose of consulting and legislating for the common good. Union existed, thouo-h without written charter, and with no means of preventing dissolution. The first ob- ject of the Continental Congress, after the bat- tles of Lexington and Concord, was to put a force in the field which would enable the com- mander-in-chief to hold the enemy in check. But it was soon discovered, in practice, that there was another element in the contest for which no provision, adequate or otherwise, had been made, and which Congress had, perhaps, not taken into consideration. The people living in the eastern part of Mas- sachusetts, which was then the theatre of war, were to a large extent sailors or fishermen ; or in some other way they got their living or their recreation out of maritime pursuits. The com- merce of Boston, Providence, New York, and other ports was carried on under the British flag, with British money, to transport British goods. This was an invitation to a maritime people to engage in a maritime war against the enemy's commerce. The invitation was immediately accepted. Vessels, captured from time to time, were brought into such Massachusetts ports as were not in the enemy's possession ; but it was found that no court existed with competent jurisdiction to adjudge them to be lawful prize. The admi- ralty colonial courts, such as they were, existed under authority derived from a royal commis- sion. This was, of course, not available to NOTES UPON LECTURE I. 39 the seamen of Massacliusetts in the summer of lecture i. 1775.^ Colonial Aunuralty To meet this emergency, the Council and courts. TT £ -r> xi." i!j.iTi- J? Massachusetts House 01 Kepresentatives oi the rrovmce oi Admiralty Massachusetts Bay, on the 1st of November, Courts. 1775, enacted a statute which is said to be "re- markable as having been the first which was passed by any of the Colonies for fitting out vessels of marque and reprisal, and for estab- lishing a court to try and condemn the captured vessels of the enemy." ^ The act divided the State into three districts, in each of which it established a Maritime Court, with jurisdiction over prizes, but differing from the Admiralty Court known in International Law, by permit- ting the facts to be found by a jury.^ Boston, being occupied by the enemy, was not included in this division ; but when the enemy retired, the districts were reorganized, and an appeal was given to the Continental Congress in cases 1 "In each one of the royal colonies in America, as in each of the other colonies of Great Britain, the commission issued to the royal governor usually invested him with the powers of a vice- admiral. . . . Cases of capture arising in the Colonies had naturally gone to these courts. But the vice- admiralty courts were rapidly destroyed by the Revolution. AVhere the governor had acted as judge, he was now in flight. . . . Nor could judges sit by virtue of commissions from King George to give judgment respecting prizes captured from him. The vice- admiralty courts continued in existence in those places only which were occupied by royal forces." — The Predecessor of the Supreme Court, by J. E. Jameson, Ph.D., being Essay 1 in Essays in the Constitutional History of the United States in the Formative Period, p. 5, edited by Professor Jameson. 2 3 Sparks' Washington, 154, n, 8 Act of November 1, 1775. Acts and Resolutions of the Prov- ince of Massachusetts Bay, vol. 5, p. 436. 40 LECTURES ON CONSTITUTIONAL LAW. Lecture I. of vessels fitted Gilt at tliG cliarge of the United Massachusetts /^ i^„:„„ Admiralty Courts. This act apparently came at once into the hands of General Washington. On the 11th day of the same November in which it was enacted, he sent a copy of it to the President of Congress, and suggested that such a court should "• be established by authority of Con- gress, to take cognizance of prizes made by the Actiouof Continental vessels," adding, "whatever the washmgton. jj^odc is wliicli they are pleased to adopt, there is an absolute necessity of its being speedily determined on." Congress becomes This letter was, ou its receipt, referred to a an Appellate committee, who on the 23d of the same Novem- Court in Prize Cases. ber, brought in their report. After a debate running over parts of the following two days, a series of resolutions, appended to the report, was adopted and j)assed. These resolutions authorized the capture of prizes on the high seas ; legalized those already made ; settled a rate of distribution of prize money (a settlement which was afterwards modified) ; provided that suits for condemnation should be commenced in the first instance in Colonial Courts, and, further, contained the following section respecting ap- peals : " 6. That in all cases an appeal shall l)e allowed to the Congress, or such person or per- sons as they shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence, and such appeal be lodged with the Secretary of Congress within NOTES UPON LECTURE I. 41 forty (lays afterwards, and provided the party lecture i. appealing shall give security to prosecute the ^°';^«p'^'^;^;f ™'' said appeal to effect ; and in case of the death of Court in Prize the Secretary during the recess of Congress, then the said appeal to be lodged in Congress within twenty days after the meeting thereof." When Washington learned of this action, he wrote to the President of Congress : " The re- solves relating to captures made by Continental armed vessels only want a court established for trial to make them complete. This, I hope, will soon be done, as I have taken the liberty to urge it often to the Congress." This suggestion of Congress w^as responded to The colonies sooner or later by all the Colonies and States J«"^^>- ^PPeiiate ^ Prize Jurisdiction except New York, whose maritime counties were on congress. in the possession of the enemy from the autumn of 1776 until the close of the war. A detailed account of this legislation will be found in the Ajopendix to Volume 131 of the United States Reports. It is sufhcient here to say that all the States except New York created prize courts, and gave an appellate jurisdiction to Congress from their judgments ; but in nearly or quite every one, provision was made for a trial of the facts by a jury, from which great trouble arose, as we shall see hereafter. The State Courts, organized under these sev- Decisions of the eral statutes, evidently had plenty to do. Of their ^^^^^^^ ^'"'" decisions one hundred and nine were reviewed in the appellate tribunals created by Congress. The origin of two of these cases is not known. Three came from New Hampshire ; twenty-six 42 LECTURES ON CONSTITUTIONAL LAW. Lecture I. Decisions of the Appellate Prize Courts. Articles of Con- federation adopted. Case of the Active. from Massachusetts ; ten from Rhode Island ; sixteen from Connecticut; fourteen from New Jersey ; eleven from Pennsylvania ; five from Delaware ; four from Maryland ; two from Virginia ; twelve from North Carolina ; two from South Carolina ; and two from Georgia. The first appeal was decided September 9, 1776 ; the last judgment was rendered May 3, 1787. Some applications were made to Congress to take original jurisdiction in such cases ; but with one exception it refused. Its appellate jurisdic- tion was exercised at first through special com- mittees, and, later, by a general committee, who soon came to be styled Commissioners. This committee was constantly changing its members, so that it was rarely that two cases were heard by the same committee. The Articles of Confederation were moving along side by side with these proceedings. They were adopted in November, 1777, and by May 5, 1779, had received tlie assent of all the States except Maryland, which wisely held back to secure that settlement of the public lands which was eventually made. That State gave its assent in March, 1781. Before such consent was given a question arose which showed how important it was that a court of appeals in prize cases should be estab- lished on a proper basis. An armed vessel, commissioned by the State of Pennsylvania, captured on the high seas a vessel called the Active, sailing from Jamaica NOTES UPON LECTURE I. 43 to New York ; took it into Philadelphia ; and lecture i. caused it to be libelled in the State Court of ^^^;^^^| *^' Admiralty there. A trial was had by jury, whose verdict was as follows : " One fourth of the net proceeds of the sloop Active and her cargo to the first claimants ; three fourths of the net pro- ceeds of the said sloop and her cargo to the libellant and the second claimant as per agree- ment between them." Judgment was entered on the verdict, from which an appeal was taken to the Commissioners. The Commissioners, after hearing, reversed the judgment, and directed the court below to issue process commanding the marshal to sell the sloop and her cargo, and to pay the residue remaining after payment of costs, charges, and expenses to the appellants. The judge of the State Court of Admiralty declined to execute this mandate, on the ground that, under the Pennsylvania Statute creating the court, the jury were to pass upon the facts, and that the reversal above, being a reversal of their verdict, was beyond the competence of the court. Thereupon General Benedict Ar- nold, who was in command in Philadelphia, wrote to the Commissioners of Appeal that the judge below was " about getting possession of the money with the avowed and declared pur- pose of standing out obstinately against any orders that may be given. He has issued his orders to the marshal to deliver the amount of sales to him, which is to be done by appointment at nine o'clock to-morrow morning, and posi- 44 LECTURES ON CONSTITUTIONAL LAW. Lecture I. Case of the Active. Resolutions of Congress. tively declares that no order of the Court of Appeals shall take it out of his hands or be obeyed." He added : " Such a daring attempt as this to evade the justice of the Superior Court, at a time too when the matter is under con- sideration, will, I doubt not, apologize for my troubling you with a request to meet this even- ing at such time and place as you may think proper in order to determine upon what process shall issue at so early an hour to-morrow morn- ing as will tend to the carrying into execution the decree above." The Commissioners met, as suggested, and issued the proposed injunction which was served on the marshal early on the morning of January 4, while the money was still in his possession ; but he deposited it in the court below notwith- standing the injunction, and so made return. The Commissioners, " being unwilling to enter upon any proceedings for contempt, lest conse- quences might ensue at this juncture dangerous to the public peace of the United States," laid the matter before Congress, which passed the following resolutions : — " Resolved, That Congress, or such person or persons as they appoint to hear and determine appeals from the Courts of Admiralty, have necessarily the power to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any court of admiralty, or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeal NOTES UPON LECTURE I. 45 and the reexamination of the facts reserved to lecture i. r^ „ Resolutions of Congress : ^^^^^^^^^ " That no act of any one State can or ought to destroy the right of appeal to Congress in the sense above declared : " That Congress is by these United States invested with the supreme sovereign power of war and peace : " That the power of executing the law of nations is essential to the sovereign supreme power of war and peace : " That the legality of all captures on the high seas must be determined by the law of nations : " That the authority ultimately and finally to decide in all matters and questions touching the law of nations does reside and is vested in the sovereign supreme power of war and peace : "" That a control by appeal is necessary in order to compel a just and uniform execution of the law of nations : " That the said control must extend as well over the decisions of juries as judges in courts for determining the legality of captures on the sea ; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might at any time exercise the same in such manner as to prevent a possibility of being con- trolled ; a construction which involves many inconveniences and absurdities, destroj^s an es- sential part of the power of war and peace entrusted to Congress, and would disable the Congress of the United States from giving 46 LECTURES ON CONSTITUTIONAL LAW. Lecture I. satisfaction to foreign nations complaining of Resolutions of ^ yiyij^tion of neutralities, of treaties, or other Congress. ' ' breaches of the law of nations, and would enable a jury in any one State to involve the United States in liostilities ; a construction which for these and many other reasons is inadmissible : " That this power of controlling by appeal the several admiralty jurisdictions of the States has hitherto been exercised by Congress by the medium of a committee of their own members : '^^ Resolved, That the committee before whom was determined the appeal from the Court of Admiralty for the State of Pennsylvania, in the case of the sloop Active, was duly constituted and authorized to determine the same." This disposed of the case, so far as Congress was concerned. It had a subsequent history, however, which is related in the foot-note. ^ 1 After the payment of the money into court, the marshal, by direction of tlie court, paid it to the Treasurer of the State, he giving a bond of indemnity to the judge. The State neglecting or declining to indemnify the Treasurer, that officer kept possession of it until his death. It was invested in loan office certificates which, after his death, passed to his personal representatives. The owners under the decree of the Congressional Court brought suit in admiralty, after the Constitution came into force, against these representatives. The District Court adjudged that the libel- lants were entitled to the certificates, with the interest upon them which had been collected. The State of Pennsylvania then set up title to the certificates. In a statute, tlie preamble to which set up this title and set forth the Eleventh Amendment to the Consti- tution, and that the suit was in reality one against the State, it was enacted that the executors should pay the money into the State Treasury, and that the Governor should take such steps as he might deem necessary to protect the rights of the State. The District Judge under these circumstances declined to issue process to enforce the decree in favor of the claimants. They applied to the Supreme Court of the United States for a vreit of mandamus. NOTES UPON LECTURE I. 47 Notwithstanding its action in this case, it lecture i. was not until January 15th, 1780, that Con- ^^^;;\;^J^;^pp'^^' gress resolved " that a court be established for the trial of all appeals from the Courts of Admiralty in these United States, in cases of capture, to consist of three judges appointed and commissioned by Congress, either two of whom, in the absence of the other, to hold the said court for the despatch of business ; that the said court appoint their own register ; that the trials therein be according to the usage of nations, and not by jury ; " and " that the said judges hold their first session as soon as may be at Philadelphia, and afterwards at such times and places as they shall judge most conducive to the public good, so that they do not at any time sit further eastward than Hartford in Connecticut, or southward than Williamsburg in Virginia." On the 24th day of the following May Con- gress gave to this court the name of the Court of Appeals in Cases of Capture ; and after that time, no appeal that had been properly taken in a State Court, reached the Appellate Court through the action of Congress. That body acted in a few cases, but only to give the court An alternative writ was issued, to which the judge made return, setting out the material facts, and saying that, deeming it best not to embroil the government of the United States with the State of Pennsylvania, until the Supreme Court should have had an oppor- tunity to pass upon the question, he had acted as he did in order to enable it to do so. On the authority of Penhalloin v. JDoane, 3 Dall. 54, which will be referred to more particularly in the note to Lecture II, post, the court ordered the District Court to enforce its judgment. This was eventually done, after some difficulty. 48 LECTURES ON CONSTITUTIONAL LAW. Lecture l a jurisdiction which it could not take under the 'rii:Lr"" general law. In July, 1785, the war being over, Congress refused to continue to grant salaries to these judges. The next year it voted a jyer diem pay while on duty, together with travelling expenses. Thus the predecessor of the Supreme Court of the United States, called into existence by a great public necessity, sank away as the neces- sity diminished, and finally ceased to exist ; and when, in a few years, the new Constitution was made, its framers, learning wisdom from the past, gave to the new Federal Judiciary not only an appellate, but an original and exclusive jurisdiction in Admiralty. 2. Treaties negotiated hy the Continental Congress. Congress prepares Five days after the passage of the resolutions fortrelties^or i^vitiug the scvcral Colonies to create Courts of amity and com- Admiralty, and creating a Tribunal for Appeals in Prize Cases, Congress, on the 29th of Novem- ber, 1775, took another step, in a different direction, which resulted in a still more marked assertion of a federal control over matters which up to that time had been entirely within local disposition. It appointed a " Committee of Secret Correspondence," to correspond with friends of the Colonies in other parts of the world, and to ascertain, if possible, " whether, if the colonies should be forced to form them- selves into an independent State, France . . . would enter into any treaty of alliance with merce. NOTES UPON LECTURE I. 49 them for commerce or defence, or both." This lecture i. resulted in the adoption by Conerress, in Sep- ^°"^'''*'^'*'',^''"^p*'"®^ ^ ^ o ^ -t a general form tember following, of a plan for a treaty to be for treaties of proposed to the King of France.^ This plan ^^J.^^ ^"^ ^°™' contemplated that the Federal Government, which for yet two years was to exist without the adoption of any written Articles of Con- federation by the States, should assume and exercise the following important powers : — Article 1 provided that Frenchmen should General provis- "pay no other duties or imposts in the ports" |y"4at'form^ of the United States " than the natives thereof," and that they might enjoy all " the rights, lib- erties, privileges, immunities, and exemptions in trade, navigation, and commerce, in passing from one part thereof to another, and in going to and from the same, from and to any part of the world," which the natives enjoyed. This proposed surrender to the Federal Government by the States of their right of control in this respect was practically carried into effect in the Treaty of Commerce of 1778 with France (Art. Ill);' in the Treaty of 1782 with Netherlands (Art. II) ;^ in the Treaty of 1783 with Sweden (Art. Ill);' and in the Treaty of 1785 with Prussia (Art. 11).^ By Article 5 of the plan the United States were to engage to protect and defend all vessels and effects belonging to French subjects, and to endeavor to recover and restore them, if taken within the jurisdiction of the United ^ 2 Secret Journals of Congress : Foreign Affairs, 7. 2 8 Stat. 14. 3 8 Stat. 32. * 8 Stat. 62. ^ g Stat. 84. 50 LECTURES ON CONSTITUTIONAL LAW. l/Et'TUUK I. General provis- ions contained iu that form. Droit d aubaine. States or any of them. This provision is found in Article VI of the Treaty of Com- merce of 1778 with France;^ in Article V of the Treaty of 1782 with Netherlands ;^ and par- tially, in Article VII of the Treaty of 1785 with Prussia.^ The droit d'auhaine, a right claimed by most sovereigns of that time to confiscate to their own use the succession of an unnaturalized for- eigner dying within their dominions, and which Montesquieu styled "an absurd right,"* Con- gress, in its plan for a treaty, asked the king of France to abandon. Article II of the Treaty of Commerce of 1778,^ as negotiated, complied with this request, but accompanied it with a declaration that Frenchmen should " enjoy on their part, in all the dominions of the said States, an entire and perfect reciprocity relative to the stipulations contained in the present ar- ticle." The Treaty of 1782 with the Nether- lands (Art. VP) gave, in the place of this abandonment, the right to the Dutch foreigner residing in the United States, to dispose of his property there by testament, donation, or other- wise ; the right to receive the succession ah intestato, in case there was no will; and the right for a guardian or tutor to a minor, to act in his behalf in receiving, keeping, and alienating his property. This precedent was followed in » 8 Stat. 16. 2 8 Stat. 34. 3 8 Stat. 86. * "Les droits insensfis d'aubaine et de naufrage." Esprit des Lois, xxi, 17. 6 8 Stat. 18. 6 8 Stat. 36. NOTES UPON LECTURE I. 51 the Treaty of 1783 with Sweden (Art. VI) ; ^ lecture i. and in the Treaty of 1785 with Prussia (Art X).^ Droit d'aubaine. In many other respects these several treaties, other provisions made before the adoption of the Constitution, '" ^^^^^ treaties. and largely upon the suggestions in the plan of Congress which was promulgated before the Articles of Confederation were adopted, secured the assent of the contracting parties to important principles, some of which were not then uni- versally recognized as constituting part of the public law which should govern the intercourse of nations with each other.^ The evils of war were lessened by agreements that, in case it should break out, time should be given to the citizens of each, in the territories of the other, to close their business and remove their properties ; * or that, should differences arise, resort should not be had to force until a friendly application should be made for an arrangement.^ A restraint was imposed upon private war by provisions forbidding the citizens of either Power to accept commissions or letters of marque from enemies of the other Power when at war ; ^ and the acceptance of such commissions 1 8 Stat. 64. 2 8 Stat. 88. 3 See Treaties and Conventions between tiie United States and other Powers, ed. 1889, p. 1221 : introductory note. * France, 1778, Art. 20, 8 Stat. 24 ; Netherlands, 1782, Art. 18, 8 Stat. 42 ; Sweden, 1783, Art. 22, 8 Stat. 72 ; Prussia, 1785, Art. 23, 8 Stat. 94. 5 Morocco, 1787, Art. 24, 8 Stat. 104. 6 France, 1778, Art. 21, 8 Stat. 24 ; Netherlands, 1782, Art. 19, 8 Stat. 44 ; Sweden, 1783, Art. 23, 8 Stat. 74 ; Prussia, 1785, Art. 20, 8 Stat. 94. 52 LECTURES ON CONSTITUTIONAL LAW. Lecture I, or letters was declared to be an act of piracy, hitSrtTeitr which placed the offender beyond the claim of national protection. The right of neutrals to carry on and main- tain their commerce on the high seas in time of war was recognized. '^ Articles contraband of war were defined and limited ; ^ and in the Treaty with Prussia it was even agreed that no articles should be so deemed contraband as to bring about confiscation and loss of property to individuals.^ And it was further agreed that free ships should make free goods ; ^ that neutral goods found in an enemy's ship should not be confiscated if they had been put aboard before the declaration of war, or within such short period thereafter that ignorance of a state of war might fairly be implied.^ Precise rules were laid down to be observed in visiting neutral vessels on the high seas,® and humane regulations were made respecting ves- sels on which articles contraband of war should be discovered.'^ 1 France, 1778, Art. 23, 8 Stat. 24 ; Sweden, 178.3, Art. 7, 8 Stat. 64 ; Prussia, 1785, Art. 12, 8 Stat. 90. 2 France, 1778, Art. 24, 8 Stat. 26; Netherlands, 1782, Art. 24, 8 Stat. 40 ; Sweden, 1783, Arts. 9, 10, 8 Stat. 64, G6. 3 Prussia, 1785, Art. 13, 8 Stat. 90. 4 France, 1778, Arts. 23, 24 ; Sweden, 1783, Art. 7, 8 Stat. 64 ; Prussia, 1785, Art. 12, 8 Stat. 90. 6 France, 1778, Art. 14, 8 Stat. 20 ; Netherlands, 1782, Art. 12, 8 Stat. 40 ; Sweden, 1783, Art. 14, 8 Stat. 68. 6 France, 1778, Arts. 12, 25, 27 ; Netherlands, 1782, Arts. 10, 20, 25, 26 ; Sweden, 1783, Arts. 11, 12, 24, 25 ; Prussia, 1785, Arts. 14, 15. T France, 1778, Art. 13 ; Netherlands, 1782, Art 11 ; Sweden, 1783, Art. 13 ; Prussia, 1785, Art. 13. NOTES UPON LECTURE I. 53 These early treaties thus uniformly asserted LErruRK i. the nationality of the United States not only ''*^'"'."^ '""'''''• J J provisions upon in their dealings with foreign powers, but in •'^t-uie ludepen- their relations with the several States. The favored nation clause put Prussia on the best footing in the ports of Charleston, Boston, Phil- adelphia, and New York, no matter what the Legislatures of South Carolina, Massachusetts Pennsylvania, or New York might say. Aliens were permitted to hold personal property and dispose of it by testament, donation, or other- wise, and the exaction of State dues in excess of those exacted from citizens of the State in like cases were forbidden. . The right was se- cured to aliens to frequent the coasts of each and all the States, and to reside and trade there. Resident aliens were assured against State legis- lation to prevent the exercise of liberty of conscience and the performance of religious worship ; and when dying, they were guaran- teed the right of decent burial and undisturbed rest for their bodies.^ In 1784 sundry letters from Ministers of the Jefferson's Consu- United States in Europe having been i^ef erred ^^[^^^^ p^J^^^"^'*''^ to a special committee, of which Mr. Jefferson was chairman, Congress, on the recommendation of that committee, by a vote of ^eight States to two, resolved to instruct their Ministers " that these United States be considered, in all such treaties, and in every case arising under them, 1 Netherlands, 1782, Art. 4, 8 Stat. 34 ; Sweden, 1783, Art. 5, 8 Stat. 62 ; Prussia, 1785, Art. 11, 8 Stat. 90. 64 LECTURES ON CONSTITUTIONAL LAW. Lecture I. as One Nation, upon tlie principles of the Fed- Jefferson's Consu- t r^ i-i. -• " i larconveutiou era! Constitution. with France. At onc time a postal convention was con- templated between France and the United States. A scheme was submitted by the French minis- ter, which Jay answered by a counter proposal ; ^ but nothing came of it. In 1788 Mr. Jefferson, as Minister of the United States in France, concluded a Consular Convention with that power, which went still further. It authorized French Consuls, in cer- tain cases, to administer upon the estates of their deceased countrymen in the several States ; to exercise police powers over French vessels in American ports ; to arrest officers or crews of such vessels ; to require the courts, at a time when no Federal Courts existed, to aid them in the arrest of deserters ; and it clothed them with authority, as judges, to decide all differ- ences and disputes arising between their country- men and the United States.^ 1 3 Secret Journals of Congress, 453. 2 1 Diplomatic Correspondence, 1783-89, pp. 185, 201. 8 Consular Convention of 1788 with France, Arts. 5, 8, 9, 12. In his autobiography Mr. Jefferson gives an account of this con- vention : "A consular convention had been agreed on in 1784 between Dr. Franklm and the French Government, containing several articles so entirely inconsistent with the laws of the several States, and the general spirit of our citizens, that Congress with- held their ratification, and sent it back to me, with instruction to get those articles expunged, or modified so as to render them compatible with our laws. The minister unwillingly released us from these concessions which, indeed, authorized the exercise of powers very offensive in a free State. After much discussion, the convention was reformed, in a considerable degree, and was signed by the Count Montmorin and myself on the 14th of November, NOTES UPON LECTURE I. 55 It SO happened that this treaty, although lecture i. negotiated and signed before the Constitution \^j. co^nvVntioir"' took effect, had not been ratified when Wash- with Frauce. ington took the oath of office. On the 11th of June, 1781), it was laid before the Senate, for its constitutional action, being the first foreign treaty upon which that body passed. The Secretary of State — then styled Secretary for Foreign Affairs — appeared before the Senate and explained its provisions; and it was unani- mously ratified by men, many of whom were fresh from the Convention which framed the Constitution. That instrument gives to the President power to make treaties by and with the advice and consent of the Senate. This power was con- ferred, w^ith full knowledge of this repeated exercise by the Continental Congress of its treaty-making power in limitation and curtail- ment of the power of the States. This may fairly be regarded as a contemporaneous construc- tion of the Constitution by those who framed it. 3. The Nortlvwest Territory. In the acquisition of the territory northwest The cession of of the Ohio, and in the legislation which ex- *^^ .f "^western ' o territory, and the eluded slavery from it, and which provided for passage of the -, p . ^ • • • i ii TT • 'j^ ^ ij Ordinance of 1787. its luture admission into the Union, as it should become settled, the Congress of the Confederation 1788 ; not, indeed, such as I would have wished, but such as could be obtained with good humor and friendship. " — 1 Jefferson's Works, 85. 56 LECTURES ON CONSTITUTIONAL LAW. Lecture I. exercised One of the highest attributes of sover- themnZeLrn ^ignty in a matter in which no individual State territory, and the took a Separate part. It was the United States chSanceof 1787. of America which accepted the deeds of cession, and which thereby acquired a Colonial Empire. In the words of the Legislature of Maryland, enacted before the cession was made, " the sov- ereignty over the Western territory was vested in the United States as one undivided and independent nation." ^ As such it accepted the cession on the 1st of March, 1784 ; and as such, on the 13th day of July, 1787, it enacted the Ordinance under ^hich five States (Ohio, Indi- ana, Illinois, Wisconsin, and Michigan) were gradually settled and admitted to the Union. One will search the Articles of Confederation in vain to find authority for such an exercise of power. On the contrary, the Eleventh Article, providing that " Canada, acceding to this con- federation, and joining in the measures of the United States, shall be admitted into, and en- titled 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," may be cited argumentatively against such authority. The powers assumed by the Congress of the Confederation, in enacting the Ordinance of 1787, are now conferred upon Congress by the third section of the Fourth Article of the Con- stitution. 1 6 Bancroft's Hist. U. S., last revise, 104. NOTES UPON LECTURE I. 67 Thus it is seen that the Statesmen in the lecture i. Continental Congress felt that tliey formed °'''"""*-"" part of a National Government, ruling, in its proper sphere, over a Federation of United States, and exercising powers to which each of those States must of necessity be subordinate. The action of Washington, in 1775, in asking Congress to establish Prize Courts with original jurisdiction ; the resolutions of Congress in Jan- uary, 1779, above quoted, regarding prizes and Prize Courts; the action of Congress in the ne- gotiation of the several treaties above referred to, all negotiated without assent of the States, either previously given or subsequently obtained, except as given in the Articles of Confederation as to such as were negotiated after they were agreed to ; the assumption of colonial jurisdiction by Congress, and the exclusion of slavery from the acquired territory, all point in this direction. The simple truth is, that the United States, mider the Articles of Confederation, like the United Colonies after the battle of Lexington, existed as a Sovereign Powder from the neces- sities of the emergency. The Colonies were compacted together by the blows of a common enemy. The semi-legislative body, Avhich took the name of Congress, was forced, from the necessities of the case, to assume and exercise Executive Powers which no Colony had ever possessed or exercised. It found precedent for this in English history ; and it followed the lines of the race to which its members mainly belonged. In studying the ante-Constitutional 58 LECTURES ON CONSTITUTIONAL LAW. Lecture I. history of the United States, we may often find esume. Congress weak in action, but never irresolute or weak in asserting its Federal powers. Before the Declaration of Independence it claimed and exercised the National Powers which until then had been wielded by the king of Great Britain. When that Declaration was proclaimed, it pressed this claim with stronger emphasis, if not with better right. This power it handed over to the government of the Confederation, which was in fact the Congress itself; and that government, in its turn, deposited the power in the new Union, as defined by the Constitution. It is true that in the interim between the ratification of the Treaty of Peace, and the adoption of the Constitution, there was a time when the desire for union weakened. After all these powers had been claimed and exercised by Congress, after the war was over and success had been achieved and acknowledged, there came a day of reckoning, when the debts incurred in prose- cuting the war had to be faced and provided for. There then came a short hour when the enemies of the Union had some reason to look for success ; when its friends, in their confiden- tial correspondence, could only hope that this "epidemic frenzy"^ would subside. That day passed away when the Constitution was adopted. 1 Hamilton to Washington, September 30, 1783. 1 Hamilton's Works, 402, 403. 11. THE PRINCIPLES OF CONSTRUCTION OF THE CONSTITUTION.^ If we desire to consider the subject of con- lecture ii. stitutional law, to obtain some idea as to what ^'^f ^T*!!.™!^' ' civil government. is meant by that phrase, and to examine the elementary doctrines which underlie all written constitutions, we can select no better text than the Constitution of the United States. It is of all existing foundations of civil government the most important, as well as the best which the wisdom of man has yet devised,^ and its con- 1 In the manuscript. notes left by Mr. Justice Miller, this was Lecture I of the lectures delivered by him before the classes of the University Law School. It was delivered January 24th, 1890. 2 Freeman gives four commonwealths which have most perfectly realized the Federal idea in history. 1. The Achaian League, in the latter days of ancient Greece, whose most flourishing period comes within the third century. (B.C. 281-146.) 2. The Confederation of the Swiss Cantons, which, with many changes in extent and constitution, has endured since the thirteenth century, (a.d. 1291.) 3. The Seven United Provinces of the Netherlands, whose union arose in the war of independence against Spain, and lasted in a republican form till the French Revolution, (a.d. 1579-1795.) 4. The United States of America. History of Federal Gov- ernment, p. 5. Jefferson wrote soon after the formation of the Constitution: " The example of changing a constitution by assembling the wise 69 60 LECTURES ON CONSTITUTIONAL LAW. Lecture II. sideration will most clearly and forcibly suggest Different forms of .i i • • i i • i j. i j.i civil government, tliosc general principles upon which not only the institutions, but the preservation and well-being of all constitutional governments depend. It is first of all necessary to have a clear idea of what is meant by the word " constitution" as applied to the various forms of civil government, before entering upon the rules for the construc- tion and application of its provisions or an exposition of constitutional law. As was well said by Judge Bates, afterwards Chief Justice of the Supreme Court of Missouri, in an argu- ment before that court in the case of Hamilton V. St. Louis County Court^ " it is easier to tell what a constitution is not, than to tell what it is." As a constitution has relation to the form of a government and to the mode in which its powers are to be exercised, let us consider briefly the nature of the elementary forms under which it can be organized. These are primarily of three kinds, into which both reason and author- ity agree that all forms of government may be reduced, namely, a monarchy, a democracy, and an aristocracy.^ men of the state, instead of assembling armies, will be worth as much to the world as the former examples we had given them. The Constitution too, which was the result of our deliberations, is, undoubtedly, the wisest ever yet presented to men." 3 Works, 12. The basis of the English constitution, the capital principle on wliich all others depend, is that the legislative power belongs to Parliament alone ; that is to say, the power of establishing laws and of abrogating, changing, or explaining them. De Lolme, Con- stitution of England (London, 1834), p. 49. 1 16 Missouri, 3, 13. 2 Writers have divided governments into various classes. The most usual division is into monarchy, aristocracy, and democracy. PEINCIPLES OF ITS CONSTRUCTION. Gl A pure monarchy means a despotism, a gov- lecture ii. ernment where the supreme power is lodged in p""^^ ""•^"^''^ y- the hands of one man, a monarch, an autocrat, or whatever else he may be called, who, in his own discretion, discharges all the functions of the executive, legislative, and judicial depart- ments of the government. He decides contro- versies between private individuals, makes the laws by which their determination is to be con- trolled, and executes his own decrees. A pure democracy is one in which every trans- a pure democ- action of common interest and private justice is ^^^^' brought before the entire body of the people, and they determine what shall be done in the premises ; the government " of the people, by the people, for the people." They make and administer the law, they hear and decide cases, and they execute their judgments. A pure aristocracy is a form of government a pure aristoc- in which these powers are held and exercised ^^^^' by a few favored individuals, a limited number of prominent men who have become such by their greater wealth or power, or by inheritance. I am not aware that there exists at this day Examples of these in any civilized country a pure example of either ^^'^^' Grimke, Nature and Tendency of Free Institutions, 7. (Ed. Cincin- nati, 1848.) Freeman says, "A more philosophical division perhaps is that which does not look so much to the nature of the hands in which supreme power is vested, as to the question whether there is any one body or individual which can fairly be called supreme. This is the division of monarchies, aristocracies, and democracies respectively, into absolute and constitutional examples of their respective classes." History of Federal Government, p. 15. See Calhoun's Works, vol, 1, pp. 28, 34. 62 LECTUEES ON CONSTITUTIONAL LAW. Lecture II. of tliGse forms of government. The Chinese Examples of these i • i • ^ • j. iormsr monarchy is a close approximation to a pure type, Russia is known as an " absolute mon- archy, " and the history of Athens and Rome shows the former existence there of a near ap- proach to a pure democracy. Perhaps the purest example of an aristocracy was the Venetian Government, which was successfully carried on for a long time, and attained great power. In a modified form an aristocracy may be said to govern to-day in England, but it is united with a monarchy.^ Indeed, all modern governments in civilized countries are combinations and modi- fications of these three forms. The United states The United States is a woiiderful illustration a combination of ^^ their harmouious combination, preserving; for the best in each. ' ^ o the benefit of the people most of the advantages and the best points inherent in each system. We have an executive who is not hereditary, but elective ; a legislative body elected by the people ; and a judicial body separated from and which may be said to be independent of the other two.^ 1 As described by Sir William Blackstone and his followers, the British is a despotic government. It is a government without a people. In that government, as so described, the sovereignty is pos- sessed by the Parliament. In the Parliament, therefore, the su- preme and absolute authority is vested : in the Parliament resides that uncontrollable and despotic power which in all governments must reside somewhere. The constituent parts of the Parliament are the King's Majesty, the Lords Spiritual, the Lords Temporal and the Commons. The king and these three estates together form the great corporation or body politic of the kingdom. . . . What, then, or where, are the people ? Nothing ! Nowhere ! They are not so much as even the baseless fabric of a vision. From legal contemplation they totally disappear. Mr. Justice Wilson, in Chis- holm v. Georgia, 2 Dall. 419, 462. 2 " There are two classes of Federal Commonwealths. I. The tion is. PRINCIPLES OF ITS CONSTRUCTION. 63 The term " constitution " may be applied, not lecture ii. improperly, to the guiding principles underlying ^^'^^ ^ constim- all these varying forms of government, whether they are, or are not, established by any written instrument/ No doubt an intelligent Russian system of Confederate States, where the central power deals only with the State governments. 2. The composite State, where the central power acts directly on citizens." Freeman, History of Federal Government, 11. To the latter class the United States belongs, or as expressed in the language of Mr. Justice John- son : "To me the Constitution appears, in every line of it, to be a contract, which in legal language may be denominated tripartite. The parties are the people, the States, and the United States." Martin v. Hunter's Lessee, 1 Wheat. 304, 373. * 1 The word "constitution" in the time of the Roman Empire signified a collection of laws or ordinances made by the emperor. It is so used in the early history of English law ; as, the Constitution of Clarendon. In its modern use it has been restricted to those rules which concern the political structure of society. Encyclo- psedia Britannica, tit. Constitution. A constitution is the fundamental law of a free country, which characterizes the organism of the country and secures the rights of the citizen and determines his main duties as a freeman. Bou- vier's Law Dictionary. The body of fundamental laws, as contained in written docu- ments or established by prescriptive usage, which constitutes the form of government for a nation. State, community, association, or society ; as, " The constitution of the United States," " The British constitution.'''' (Roman Law.) Decrees of regular authorities, par- ticularly of the emperors. Worcester's Dictionary. The principles or fundamental laws which govern a State or other organized body of men, and are embodied in written docu- ments, or implied in the institutions and usages of the country or society ; organic law. Webster's Dictionary. " There is one great and happy feature in the Constitution of the LTnited States"; " provision is made for the admission of new States iipon equal terms with the old ones. For Europe there re- mained the sad necessity of revolution. For America, the gates of revolution are shut and barred and bolted down, never again to be thrown open ; for it has found a legal and peaceful way to intro- duce every amelioration." Bancroft's History of the Constitution, 1st. ed. vol. 2, p. 334. France had no parliamentary machinery for effecting desired or G4 LECTURES ON CON"STITUTIONAL LAW. Lecture II. might speak of the constitution of the Russian What a coDstitu- i i i-ii ii iij^ii tionis. monarchy, by which lie would mean that there were certain limitations upon the power of his sovereign, that there were certain privileges per- taining to the nobility which could not be in- vaded, that the serfs which belonged to the crown having been emancipated, no power could reinstate the old order of things. These invis- ible unwritten barriers, surrounding the action of the despot, are comprehended under this use of the word " constitution." ^ No doubt an educated Turk might allude to the constitution of the Turkish Government, by which he would mean needful changes in its constitution, so that the right of revolution, as it was called, became a necessity on the part of those who con- ceived that they embodied and were in a position to express the popular will. 1 " Quodcumque ergo imperator per epistolam constituit, vel cognoscens decrevit, vel edicto praecepit, legem esse constat ; hae sunt quae constitutiones appellantur. Justinian, Inst. Lib. I, tit. 2, pi. 6. The French " Charte " is the most remarkable of the European constitutions. Like the Magna Charta it was wrested from the king ; it was not the act of a popular convention. It is said to be a settled maxim in France that it can never be altered. See Grimke on Nature and Tendency of Free Institutions, p. 129. Jameson, in his work on Constitutional Conventions, divides political constitutions with reference to the mode in wliich they originated into two classes, accumulated or cumulative and en- acted, p. 75. Those of ancient Rome and England belong to the first class. The Reform Act is considered by the English as much a portion of the constitution as trial by jury, or the reiiresentative system, which have never been enacted, but correspond to what Cicero calls leges natoe, or "grown law." To the second class belong the Federal constitution and those of the several States ; that is, they were at a certain time and by a certain authority en- acted as the fundamental law of the body politic. Encyclopaedia Americana, tit. Constitution ; Hallam's Constitutional History of England ; Shepherd's Constitutional Text-Book ; Elliot's Debates on the Federal Constitution. PRINCIPLES OF ITS CONSTRUCTION. 65 that the sultan was bound to admmister justice, lectuee ii. 1,1,1 1 J. • i.* i What a constitu- and that he was under many restrictions as to ^j^^ j^ the counsellors with whom he must surround himself as well as to the methods by which he should administer the affairs of the kingdom.^ We are all familiar with the frequent allu- British constuu- sions made by English statesmen to the British ^^°"" Constitution, which are repeated by every writer on the subject in that country. And they mean what they say ; they have in their sense a con- stitution ; that is to say, they have for hundreds of years had a monarchy in which the powers of the sovereign have been confined within very narrow limits, much more restricted in many respects than those confided to the President of the United States under our Constitution. So that the term " constitutional government " has come to be generally used in contradistinction to absolutism. Their judiciary is also indepen- dent of the law-making power, which is a parlia- ment composed of the House of Lords and the Commons, the latter of which is elective. It is much older than ours, having begun to exist in times when statesmen were not much accus- tomed to frame exact definitions ; but if the great length of its duration and the admiration ^ Some English writers speak of the constitution of the Turkish Empire. See Hallam's Constitutional History of England. The emperor of China is bound by ancient laws and customs, and could scarcely, without danger, if he would, disregard the advice or remonstrances of his ministers or the boards of admin- istration. American Cyclopaedia, tit. China. A collection of ecclesiastical regulations appeared in the fourth century, attributed to the apostles, but generally supposed to be spurious, known as " apostolical constitutions." 60 LECTURES ON CONSTITUTIONAL LAW. lkctijre II. of the English people for it, together with their British constitu- ^^^,^^^^ |-)g|-gf ^^^ i^s ^.^^^^g ^^^^ perpetuity, are evidences of its worth, then it is clear that they have a good constitution.^ A constitution is But ill America when we speak of a constitu- a written instru- ^^^^^ ^g refer to a written instrument, one in meut, as under- " ' stood in America, wliicli the powers granted and duties imposed by it are reduced to writing.^ The earliest con- 1 It was during the thirteenth century that first appeared with distinctness that Constitution which has ever since, through all changes, preserved its identity ; of which all the other free consti- tutions in the world are copies, and which, in spite of some defects, deserves to be regarded as the best under which any great society has ever yet existed during many ages. . . . Yet the present Con- stitution is to the one of five hundred years ago what the tree is to the sapling, what the man is to the boy. The alteration has been great. ... A constitution of the Middle Ages was not like one of the eighteenth or nineteenth century, created entire by a single act, and fully set forth in a single document. Macaulay's History of England, vol. 1, pp. lG-28. The English Constitution is largely unwritten, using the word as we do of unwritten law ; its rules are found in no written docu- ment, but depend on precedent modified by a constant process of interpretation. See Encyclopaedia Britannica, tit. Constitution. De Lolme says it has, like that of most countries of Europe, grown out of occasion and emergency, and its earliest history is involved in obscurity. Mr. Gladstone has said with admirable force, " As the British Constitution is the most subtile organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." 2 In American constitutional law, the word "constitution" is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or any one of the States, as the absolute rule of action and decision for all departments and officers of the government, in respect to all points covered by it ; which must control until it shall be changed by the authority which established it, and in opposition to which any act or any regulation of any such department or officer, or even of the people them- selves, will be altogether void. Cooley's Constitutional Limitar tions, 3. , PRINCIPLES OF ITS CONSTRUCTION. 67 stitutions for the government of the ancestors lectube u. of the people who now constitute the United ^"'"''f """;"" ^ i- isa written iiistni- States were the charters of the Colonies ; and ment, as iiiuier- although those charters were but grants of liber- ''""'^ ties, rights, and powers from the home govern- coiouiai cLanera. ment, not in all cases well defined, yet they w^ere reduced to writinij; under the seal of the kino;- dom to which tliey were tributary, and consti- tuted the foundation and the formal statement of the principles on which the colonies adminis- tered their own domestic affairs and permitted the officers of the parent government to assist in that administration. They undoubtedly con- tributed very largely towards the education of the people in those days in ideas of constitu- tional liberty ; and they were in many respects much superior to the much vaunted British Con- stitution, because they contained limitations upon the legislative power which were not found in the usages of the English Government.^ They 1 In England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certam, by which a stat- ute can be tested. In America the case is widely different. Every State in the Union has its constitution reduced to a written exacti- tude and precision. Vanhorne'' s Lessee v. Dorrance, 2 Dall. 304, 308. The power of the sovereign, "though ample, was limited by three great constitutional principles, so ancient that none can say when they began to exist; so potent that their natural development, continued through many generations, has produced the order of things under Avhich we now live. First, the king could not legis- late without the consent of his Parliament. Secondly, he could impose no taxes without the consent of his Parliament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible." IMacaulay's History of England, vol. 1, p. 29. The principles embodied in the Acts of Settlement and the Bill of Rights are the basis of the English Constitution. De Lolme. 68 LECTURES ON CONSTITUTIONAL LAW. Lecture II. also Contained assertions of individual rights, Colonial charters. i-i ii £ ^^ i iii i which were not always luUy acknowledged, and thus not only contributed in that way to educate the people in a knowledge of their rights and of the just powers of the government, but also taught them the necessity and propriety of hav- ing such rights and powers fixed by a written instrument.* Previous attempts There liavc been other written constitutions at written cousti- I'lii oi i iiri tutions. besides these, bolon drew up a body oi laws for the Athenian State, and Lycurgus one for Sparta. Some of the governments of Europe have attempted to formulate such instruments.^ Comprehensive laws or decrees have been called constitutions, and France may be instanced as a country which has had something which has 1 The general principles which are the groundwork of modem constitutions, — principles which were imperfectly known in Eu- rope, and not completely triumphant even in Great Britain, in the seventeenth century, — were all recognized and determined by the laws of New England : the intervention of the people in public affairs, the free votirig of taxes, the responsibility of authorities, personal liberty, and trial by jury, were all positively established without discussion. De Tocqueville, Democracy in America, vol. 1, p. 22 (ed. N. Y. 1838). 2 Ten or twelve European States have adopted written constitu- tions, but they have been the gift of some self-constituted lawgiver, or imposed by bodies of men who very imperfectly represented the supreme authority of the State. None of them rest upon the same firm foundation as ours, the sovereignty of the people. A written constitution, emanating from the popular will, while the govern- ment was still a monarchy or aristocracy in character, would be a solecism in politics. Neither form could survive the adoption of such an instrument. If not immediately annihilated, they must speedily have fallen into decay. See Grimke on Nature and Tendency of Free Institutions, pp. 124-128. The present constitution of Switzerland dates from 1874, on the basis of the previous one of 1848. PRINCIPLES OF ITS CONSTRUCTION". 69 been called such, from the day that Louis XVI lecture it. ,1 1 ii i 1 1 TP Previous atiompls was overthrown to the present hour/ Every ,^, ^^i,,^„ ^„Ji. successive government established its written tuUous. constitution, and the French people have had in that length of time enough such documents to suppl}?- the nations of the earth ; most of them probably good ones if they had been able to suc- cessfully put them into practice. It is unneces- sary here to recall the history of that country ; how with every change in the course of its affairs they abolished the previous constitution and established a new one, until thinking people began to doubt their capacity for self-govern- ment. Spain followed France in this course, and al- though it did not become republican until within a very recent period, jet under French influence its people wrung from Ferdinand and Charles written constitutions, and such an instrument they have had from that hour to this. They have, however, frequently risen in rebellion to 1 Napoleon I styled himself Emperor of the French "by the grace of God and the Constitution of the Empire." De Tocqueville, in his Democracy in America, says, p. 140: "In France the constitution is the first of laws" ; and on p. 139 : " It is, or is supposed to be, immutable, and the received theory is that no power has the right to change any part of it " ; and again, p. 288 : " As the king, the peers, and the deputies all derive their authority from the constitution, these three persons united cannot alter a law by virtue of which alone they govern. Out of the pale of the constitution they are nothing." Charles VII was the first French king who attempted to form a code for the entire kingdom. Several of his successors had the same idea. One was prepared and published in 1G20, but many important chapters were added before it assumed the form in which, as the Code of Louis XV, it represents the status of French juris- prudence at the time of the Revolution. 70 LECTUKES ON CONSTITUTIONAL LAW. lkctdre II. overthrow their monarch and get another con- Previous attempts ,•, ,• j.i j. j: xi i x, at written consti- stitiition, SO that nonc oi them have been per- tutions. manent or very enduring.^ It is with sorrow and regret also that we see their descendants on this side of the Atlantic, Spanish republicans they call themselves, evince scarcely more re- spect for written constitutions than the country from which they originally came.^ So that it is evident that something more than a written constitution is essential to the safety and perpetuity of any government, and that is, a due reverence by the people for it and for their laws. All the instruments in the world, though they were written in letters of gold upon the most imperishable tablets, will be but as ropes of sand if the people themselves have no respect for law or for those who administer it.^ 1 But however imperfect European constitutions in their prac- tical enforcement may liave been, they worlc a great advance in government, not only as an open rec(%nition of certain general principles in favor of liberty, but as a deiinite application of them. See Grimke on Nature and Tendency of Free Institutions, p. 129. " A written constitution never adds to, but always takes away from, the power which has previously been exercised." lb. 2 The precedent of Federal union given by the English settle- ments in North America has been followed, though as yet with little success or credit, by several of the republics which have arisen among the ruins of Spanish dominion in the same continent. Freeman, History of Federal Government, 7. 3 A nation may establish a system of free government, but with- out the spirit of municipal institutions it cannot have the spirit of liberty. De Tocqueville, vol. 1, p. 42 (ed. N. Y. 1838). "The Federal form of government is no panacea for all human ills; a well-planned constitution at home is no guarantee for wise or honorable conduct in foreign affairs," and will not hinder among the people the devel- opment of the characteristic virtues and vices of a Democratic Fed- eration. Freeman on Federal Government, 325, 326. The formation of a written constitution is one of the most deci- sive steps which has been made toward the establishment of free PKINCIPLES OF ITS CONSTRUCTION. 71 A constitution, in the American sense of the lecture n. Definition of coustitution. word, is a written instrument by which the fun- ^*' ""^'°" " * damental powers of the government are estab- lished, limited, and defined, and by which these powers are distributed among several depart- ments, for their more safe and useful exercise, for the benefit of the body politic. A search for a more satisfactory definition has been in vain, but this language, perhaps, fairly expresses the meaning of the term in this country.^ institutions. It implies the exercise of reflection in its highest degree, an ability to frame the most comprehensive rules, and to make application of them to the actual affairs of men. . . . The constitutions of antiquity confounded what we would characterize as political ordinances with the acts of ordinary legislation. This was the case in the code of the Roman decemvirs, and it was equally so in the systems introduced by the Athenian and Spartan lawgivers. Grimke on Free Institutions, Book II, c. I. 1 What is a constitution ? It is the form of government, deline- ated by the mighty hand of the people, in which certain first princi- ples of fundamental laws are established. The Constitution is fixed and certain; it contains the permanent will of the people, and it is the supreme law of the land; it is paramount to the will of the leg- islature, and can be revoked and altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand. ... In short, the Constitution is the sun of the political system, around which the legislative, executive, and judicial bodies revolve. Whatever may be the case in other countries, yet in this there can be no doubt that every act of the legislature repugnant to the Constitution is absolutely void. Vanhor7ie''s Lessee v. Dorrance, 2 Ball. 308. It is not, however, the origin of private rights, nor the founda- tion of laws, nor the beginning of a community. It is not the cause, but the consequence of personal and political freedom. It declares those natural and fundamental rights of individuals, for the security and common enjoyment of which governments are estab- lished. It is, in a word, the form and framework of political gov- ernment, devised for the protection of the people, the instrument of their convenience, and is always a limitation upon the governing powers exercised by their agents. It has been defined to be a system of law established by the sovereign power of a State for its own guidance. 72 LECTURES ON CONSTITUTIONAL LAW. Lecture ii. Not everything in detail that a government ofThe uniteV" may do can be embraced in a written document; ^t^iites. that would fill a volume like the statutes ; but the fundamental principles by which it is to be carried on and maintained are established by it.^ Certain great powers are specifically granted, but at the same time certain restrictions are thrown around their exercise which are essential under our form of government to the rights of the States, and to the rights of individuals. For example, a per- son's property cannot be taken for public use without due course of law and just compensa- tion ; his life or liberty cannot be taken from him without a fair trial before a court of compe- tent jurisdiction;^ he shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime was committed; he shall be confronted with the wit- nesses against him, shall have compulsory pro- cess for obtaining witnesses in his favor, and shall also have the assistance of counsel for his defence.'^ These are some of the rights defined and secured to those who live under the protec- tion of the Constitution of the United States. This is a very remarkable instrument in many particulars. Perhaps no more important writ- ing exists in the world to-day, affecting its pros- perity and the happiness of its people, outside of 1 In no written constitution which ever existed has there been defined or delegated to officials all the latent powers which lie dormant in every nation, boundless in extent and incapable of definition. 2 Constitution, P'iftli Amendment. * Constitution, Sixth Amendment. PRINCIPLES OF ITS CONSTRUCTION. 73 those which are of a. religious character. It is, lecture n. and has been for many years, the subject of per- ('nue unit^'d'°° petual exegesis by all the lawyers and courts of states, this country, representing millions of inhabi- tants, great and diverse interests, and very ex- tensive business relations, all of which are more or less affected by its provisions. All the pre- vious instruments known in this country and in the history of its Colonies, such as the charters already referred to, were granted by the ruler or sovereign, and were designed to confer certain rights and regulate the relations of the subjects with their monarch. But this instrument comes from a very different source. It is one in which the people themselves have undertaken to frame an organic law governing the relations of the whole people, as well as of the individual States, to the Federal Government, and to prescribe in many cases the limits and rules of private and personal rights. It is the fundamental law pur- suant to which the government is permanently organized and conducted.^ Such a document, framed and put into written language, judiciously operative upon the affairs which it is intended to govern, is a rare thing in the history of the world ; and it may be said with safety that none has ever been constructed by the wisdom or in- 1 Federal Government may be said to be essentially a compro- mise between two opposite political systems ; an intermediate step. In its most perfect form two requisites have been suggested : the complete independence of each member of the Union in all matters concerning that member only, and that all must be subject to a central power in those matters concerning the whole body of mem- bers collectively. 74 LECTURES ON CONSTITUTIONAL LAW. Lecture II. genuitj of man so well adapted to the ends it on\e uTite'd'"'^ ^^^^ intended to subserve, or so successful in the States. execution of those purposes.^ It is, therefore, a subject unique in that respect, to which atten- tion is here invited. This, like all other instruments, when it be- comes the subject of comment and construction, must necessarily be looked at in the light of its origin, the purposes which it was intended to accomplish, as well as the evils which it was intended to remedy. A volume would hardly be sufficient to give a complete history of the Con- stitution of the United States. It will be impos- sible here to give more than a brief outline of some of the principal reasons for its adoption. Causes which led It may, in a word, be said that this Constitu- to Its a option. ^-^^ arose out of the condition in which the peo- ple of the United States found themselves at the close of the Revolutionary War. Having estab- lished their independence of the government of Great Britain, and been recognized as one of the family of nations, they soon found that the com- pact under which they had successfully achieved that independence, namely, the Articles of Con- federation, was utterly inefficient and incompe- tent to answer the purpose of binding them 1 The examples of Federal constitutions which history supplies are scattered over widely distant ages and countries ; they are found among nations widely differing from one another in the amount of their political advancement and general civilization. . . . There is what may be called a certain. Federal ideal, which has sometimes been realized in its full, or nearly its full, perfection, while other cases have shown only a more or less remote approxi- mation to it. Freeman on Federal Government, 2. PRINCIPLES OP^ ITS CONSTRUCTION. 75 together and conducting the new nation on its lecture ii. pathway to future usef uhiess.^ Its defects were -'^"''' r*"'*' '"'' , to Its adoptioa. many and obvious."'^ It was found that the Colonies, as they had been previously called, had never really been independent States or Nations. They had been subjects of Great Britain, governed by charters from the Crown, or organized under certain commissions or grants by letters patent, and sub- mitting very largely to the legislation of the English Parliament until certain questions con- nected with taxation caused them to rebel, not against the king, but against those laws as op- pressive and unjust. In the effort at resistance 1 Madison said : "The close of the war brought no cure for the public embarrassments. The States, relieved from the pressure of foreign danger, and tlush with the enjoyment of independent and sovereign power, instead of a diminished disposition to part with it, persevered in omissions and in measures incompatible with their relations to the Federal Government, and with those among them- selves." 5 Elliot's Debates, 112. 2 The first number of the Federalist opens with the statement : "After full experience of the ineificacy of the existing Federal Government, you are invited to deliberate upon a New Constitution for the United States of America " ; and in No. 15 the author says, "It may perhaps be asked what need there is of reasoning or proof to illustrate a position [the insufficiency of the present Confedera- tion to the preservation of the Union] which is neither controverted nor doubted ; to which the understandings and feelings of all classes of men assent ; and which, in substance, is admitted by the opponents as well as by the friends of the New Constitvition ? It must in triith be acknoAvledged, that however these may differ in other respects, they in general appear to harmonize in the opinion that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. . . . Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins." 76 LECTURES ON CONSTITUTIONAL LAW. Lecture II. they liacl united together in a body to make the loTad'IpSn.''^ struggle successful ; so that, although being a government or nation when they became free, each individual Colony had never been at any time a separate and independent State, and yet none of them recognized any supremacy in any other State. The question was, how much should they grant or yield to the common gov- ernment which they were about to form in the common interest of self preservation ; for it was soon discovered that the one which had carried them through the war, in the paroxysm of patri- otism necessary for self-defence, was incapable of carrying on a successful government after that impulse was gone.^ One of the most pressing evils to be remedied by the reorganization of the Central Government was in relation to the collection of revenues for its support, for it had been found that taxes could not be successfully collected for that pur- pose.^ Its only reliance during the Revolution- 1 " The radical infirmity of the Articles of Confederation was the dependence of Congress on the vohintary and simultaneous compliance with its requisitions by so many independent communi- ties, each consulting more or less its particular interests and con- venience, and distrusting the compliance of the others." Mr. Madison: 5 Elliot's Debates, 112. 2 The requisitions of Congress under the Confederation were as constitutionally obligatory as the laws enacted by the present Con- gress. That they were habitually disregarded is a fact of universal notoriety. Colipns v. Virginia, 6 Wheat. 2G4, 388. Among the debilities of the government of the Confederation, no one was more distinguished or more distressing than the vitter impossibilty of obtaining from the States the moneys necessary for the payment of debts, or even for the ordinary expenses of the government. Jefferson's Works, vol. 1, p. 82. The great office of the Confederation was to demonstrate to the PRINCIPLES OF ITS CONSTRUCTION. 77 ary War and down to the year 1789, when the lecture ii. present form of government Avas fully organized, IJi^tTadlpUoQ.^'* was by a call or request upon the States for their proportion of the amount necessary for its support.^ Even during the pendency of the war such calls were responded to very feebly and unequally, and hence that war was fought on credit, leaving an immense debt to be paid at its close. After the enthusiasm of the war had died away, and the independence of the Colonies had been conceded, it was still more difficult to obtain funds in that way, and there was no re- lief to be had through taxation of the people by the General Government.^ Another evil was, that, although it had come to be recognized as one of the nations of the earth, this so-called Central or General Govern- ment had no sufficient powers conceded to it by the States in order to properly conduct its affairs with foreign governments. It had no capacity people of the American States the practicability and necessity of a more perfect union. 1 Curtis' Const. 150. 1 To the puri^oses of public strength and felicity that Con- federacy was totally inadequate. A requisition on the several States terminated its legislative authority. Executive or judicial authority it had none. Chisholm v. Geonjia, 2 Dall. 419, 403. - April o, 1784, Mr. Jefferson, as chairman of a grand committee, made a report upon the arrears of interest on the public debt, in which he refers to the requisitions that have been made upon the various States, and complains that the payments have been small and slow. Journal of Congress, vol. 9, p. 103. Madison uses the following terse langviage, Febnian^ 25, 1787 : "Our situation is every day becoming more and more critical. No money comes into the Federal treasury ; no respect is paid to Federal authority ; and people of reflection unanimously agree that the existing Confederacy is tottering to its foundation." 6 Elliot's Debates, p. 106. 7b LECTURES ON CONSTITUTIONAL LAW. Lecture II. to make treaties, except on a limited class of Causes wliich led i • i Ti. i j ± ' • i to its adoption. siiDJects. It had no means to raise armies and navies, or to pay the national debt ; and no one could tell how far each State could itself nego- tiate with other nations, or how soon tliey would be subjected, as were the Grecian republics in the days of the Amphictyonic councils,^ to the influence of other nations who might approach any one of them for the purpose of inducing it to withdraw from the Union. But perhaps of all the causes which contributed to the formation of the new Constitution, one of the most effective, like some little fretful thing that seems unimportant but which perpetually annoys you, was the condition of their foreign 1 The Amphictyons, or association of neighboring tribes or cities, were tlie germ of one of the strongest bonds of union by which the Greek tribes were lield togetlier. American Cyclo- paedia, tit. Amphictyons. The council not a Federal Government, a union not of cities, but of tribes. See Freeman on Federal Government, p. 123, for a full history of its origin and character. ' ' Philip of Macedon by his intrigues and bribes won over to his interests the popular leaders of several cities ; by their influence and votes gained admission into the Amphictyonic council ; and by his arts and his arms made himself master of the Confederacy." Tlie Federalist, No. 18. 2 The want of a power to regulate commerce is one of the defects which renders the existing Federal system unfit for the adminis- tration of the affairs of the Union. There is no object that more strongly demands a Federal superintendence, . . . The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others ; and it is to be feared that examples of this nature, if not restrained by a national control, would be multijjlied and extended till they became not less serious sources of animosity and discord, than injurious impediments to the intercourse between the different parts of the Confederacy. The Federalist, No. 22. PRINCIPLES OF ITS CONSTRUCTION. 79 different States.^ The States being practically lecture ii. independent of each other had the power of [JI'j'^'^J^JJj^^^^" taxing all goods which passed through their borders or entered their ports. The little State of Rhode Island had in Newport one of the most important ports of entry upon the Atlantic coast, and by levying taxes on importations was getting rich at the expense of its neighbors in the confederacy of States.^ The port of Charles- ton bore the same relation to the southern part of the country, and the port of Norfolk held a like position with reference to Vu^ginia and Maryland.^ 1 "We are uncertain whether the States generally will come into the proposition of investing Congress with the regulation of their commerce. Massachusetts has passed an act, the lirst object of which seems to be to retaliate on the British commercial measures, but in the close of it they impose double duties on all goods imported in bottoms not owned wholly by citizens of our States. New Hampshire has followed the example. This is much complained of here, and will probably draw retaliatorj' measures from the states of Europe, if generally adopted in America, or not corrected by the States which have adopted it." Jefferson's Works, vol. 1, p. 475. 2 Mr. Hamilton said, February 19, 1783 : "The true objection on the part of Rhode Island was the interference with the impost, with the opportunity afforded by their situation of lev'j'ing contri- butions on Connecticut, etc., which received foreign supjilies through the ports of Rhode Island : that the true objection on the part of Virginia was her having little share in the debts due from the United States to which the impost would be applied." 5 Elliot's Debates, 52. 3 " The other source of dissatisfaction was the peculiar situation of some of the States, which, having no convenient ports for foreign commerce, were subject to be taxed bj' their neighbors, through whose ports their commerce was carried on. New Jersey, placed between Philadelphia and New York, was likened to a cask tapped at both ends; and North Carolina, between Virginia and .South Carolina, to a patient bleeding at both arms. The Articles of Confederation provided no remedy for the complaint, which pro- 80 LECTURES ON CONSTITUTIONAL LAW. Lecture: II. Eiit that was iiot all. The trade between the Causes which led g|^r^|^gg ^yg^g heavilv taxed, in pursuance of a pol- to Its adoption. j ^ i x icy by which each endeavored to lay the burden of raising its revenues upon the others. This has been one of the most difficult things to cor- rect, and efforts in that direction have been made against the attempts to accomplish this object, which have been persistently pursued up to the present time.^ Many cases have come duced a strong protest on the part of New Jersey, and never ceased to be a source of dissatisfaction until the new Constitution super- seded the old." Madison in 5 Elliot's Debates, 112. 1 Statute of New York granting exclusive navigation of waters within the State. Gibbons v. Ogden, 9 Wheat. 1. Statute of Maryland requiring license to sell imported goods. Broivn v. Maryland, 12 Wheat. 419 ; Ward v. Maryland, 12 Wall. 418. Statute of Missouri, requiring a like license. Welton v. Mis- souri, 91 U. S. 275. Statute of California imposing a tax upon bills of lading for gold or silver carried out of the State. Almy v. California, 24 How 169. Statute of Alabama providing for the registration of the names of steamboat owners, etc. Sinnot v. Davenport., 22 How. 227. Statutes of New York and Massachusetts imposing taxes on alien passengers arriving in ports of those States. Passenger Cases, 7 How. 283 ; Henderson v. Mayor of Xew York, 92 U. S. 259. Statute of California imposing like taxes. Chy Lung v. Free- man, 92 U. S. 275. Statute of New York taxing banks. Bank of Commerce v. Neio York City, 2 Black, 620 ; Bank Tax Case, 2 Wall. 200. Statute of Nevada levying a capitation tax upon passengers caiTied out of the State. Crandall v. Xevada, 6 Wall. ?>5. Statute of Pennsylvania imposing tax upon articles brought into or carried out of the State. Case of State Freight Tax, 15 Wall. 232 ; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326. Statute of Tennessee imposing a license or privilege tax on sleeping-cars. Pickard v. Pnllman Southern Car Co., 117 U. S. 34 ; Tennessee v. Same, 117 U. S. 51. Statute of Louisiana imposing a license tax on boats. Moran T. Mw Orleans, 112 U. S. 69. PRINCIPLES OF ITS CONSTRUCTION. 81 before the Supreme Court of the United States lecture ii. involving this question, where State laws of this to^uTadoptLn.^ character have been held to be invalid because in conflict with the constitutional power of Con- gress to alone' regulate commerce of that nature.* Notwithstanding for nearly one hundred years we have had in the Federal Constitution the declaration that Congress shall have power to regulate commerce among the several States, there are at this hour upon the statute books of almost every State laws violating that provision ; and there is no doubt that if that clause were removed to-morrow, this Union would fall to pieces, simply by reason of the struggles of each State to make the property owned in other States pay its expenses. It was this tendency of each State to support its Government out of taxes levied upon the property of other States, or on Statutes regulating delivery of telegraphic despatches in other States. Western Union Telegraph Co. v. Pendleton, 122 U. S. 347 ; Telegraph Co. v. Texas, 105 U. S. 460. Statute of Missouri prohibiting bringing certain cattle into the State. Bailroad Co. v. Husen, 95 U. S. 465. Statute of Louisiana regulating transportation of passengers, without distinction of race or color. Hall v. De Cidr, 95 U. S. 485. Statute of Tennessee taxing drummers. Bobbins v. Shelby County Taxing District, 120 U. S. 489. [Cases reviewed.] Statute of niinois regulating rates of railroad transportation. Wabash & St. Louis Railway Co. v. Illinois, 118 U. S. 557. [Cases reviewed.] 1 Even with this explicit declaration it was yet diflBcult for men trained, as were the older lawyers during the early part of this cen- tury, to concede the supreme power of Parliament over and above any court in the land ; — that any law passed by the legislative and approved by the executive branches of the government could be set aside upon the mere opinion or judgment of a judicial tribunal. For this there was no precedent in ancient or modem history. 82 LECTUKES ON CONSTITUTIONAL LAW. Lecture ii. the proclucG or merchandise which must go uTitrLioptiou.^ throLigli one State to another, that more than any other one thing compelled the formation of the present Constitution.-^ An understanding The importance of a clear understanding of of these causes a ^|-^ggg reasous, wliich wcrc SO coffcnt in its f or- key to its con- ' ^ struction. matiou, is quite apparent. A very useful key to the construction of a statute or a constitution is to inquire what was the evil to he removed, and what remedy did the new instrument propose ; so that when a,ny question arises requiring a judicial construction of any of its clauses, it is important to go back and ascertain the evil that was intended to be remedied. The Articles of Confederation by which the Colonies were bound together were but a rope of sand ; the nation was such only in name.^ To make it such in reality, this was the problem ^ :Mr. Van Buren said, as early as 1826, in the Senate of the United States : " There are few States in the Union upon whose acts the seal of condemnation has not from time to time been placed by the Supreme Court. The sovereign authorities of Vefmont, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Missouri, Kentucky, and Ohio, have in turn been rel^uked and silenced by the overruling authority of this court." 4 Elliot's Debates, 486. 2 The day is at length arrived when dangers and distresses have opened the eyes of the people, and they perceive the want of a common head to draw forth in some just proportion the resources of the several branches of the Federal union. They perceive that the deliberative powers exercised by States individually over the acts of Congi'ess must terminate in the common ruin ; and the Legisla- tures, however reluctantly, must resign a portion of their authority or cease to be Legislatures. Letter of James Duane to Washing- ton, January 29, 1781; see 1 Bancroft's History of the Constitu- tion, 283 (orig. ed.). Hamilton wrote : " The Union has neither troops, nor treasury, nor government. " PRINCIPLES OF ITS CONSTRUCTION. 83 which confronted the founders of tliis Govern- lecturk n. ment, and they came to their work of framing of"thele*'rJu"es'a^ its organic hiw, with a full view of its impor- i^'^y ^" ii» con- tance and the evils to be remedied. They deter- mined that this instrument which they framed should be no such feeble tie. They were insti- tuting a government for the common defence and the general welfare, and they, therefore, no longer spoke of the States individually, who might struggle with each other/ but they said : "We, the people of the United States, do ordain this instrument to be our Constitution." ^ It was then that a nation was born.^ 1 Tlie great and radical vice in the construction of the existing Confederation is in the principle of legislation for States or GOVERNMENTS, in their corporate or collective capacities, and as contradistinguished from the individuals of which they consist. The Federalist, No. 15. The decay and failure of the Confederation is graphically described in Curtis' Constitution. 2 This preamble is constantly referred to by statesmen and jurists, to aid in expounding its provisions. Chisholm v. Georgia, 2 Dall. 474 ; 2 Curtis' History of Constitution, pp. 372-376. It is the essence and epitome of the whole instrument by which this government is ordained and created, and its purposes, author- ity, and duty established. Farrar's Constitution, sec. 5. The Constitution of the United States was ordained and estab- lished, not by the States in their sovereign capacity, but emphat- ically, as the preamble of the Constitution declares, by "the people of the United States." Story, J., in Martin v. Hunter'' s Lessees, 1 Wheat. 326. 3 The new government was not a mere change in dynasty, or in a form of government leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. Chief Justice Taney, in Dred Scott v. Sandford, 19 How. 441. 84 LECTUEES ON CONSTITUTIONAL LAW. Lecture II. Of coursG, wliGii the delegates from the various terr''""^*^' States all came together, they must have had among them a great deal of discussion about the philosophy of government. Probably no nation, or people, as young as ours then was, ever had so many men thoroughly versed in that direc- tion, or so many who had given vigorous, edu- cated, and trained attention to that science, as were to be found in this country at that time.^ And, fortunately, society was then in a condition when personal aspirations and malign influences were not, and probably could not be, brought to bear, from the fact that the wisest and best men were sent forward from the various communities to participate in the work of the constitutional convention. In that we have reaped the benefit of the good fortune of our ancestors. The United States It lias been common to designate our form of not a deiuocracy. government as a democracy, but i: the true sense in which that term is properly used, as defining a government in which all its acts are * The convention that formed the Constitution was composed of fifty -five members. It was a body of great and disinterested men, competent, both morally and intellectually, to the work assigned to them. . . . There was certainly a remarkable amount of talent and intellectual power in that bod^_ There were men in that assembly, who, for genius, for statesnjanship, and for profound speculation in all that relates to the science of government, the world has never seen overmatched, and they were, happily, the most marked in that assembly for their comprehensive patriotism, their justice, their unselfishness and magnanimity. Mr. Choate said in 1858 in a lecture on Jefferson, IJurr, and Madison: "I dwell on that time from 1780 to 1789 because that was our age of civil greatness. Then first we grew to be one. In that time our nation was born." PEINCIPLES OF ITS CONSTRUCTION". 85 performed by the people, it is about as far from lecture ii. ., i 1 i" 1 • 1 A 1 The United St.itfs it as any other oi which we are aware. As has ^^^ ^ democracy, already been said, a pure democracy is almost unknown, from the difficulty of having all the people participate in the functions of govern- ment, which include not only the processes of making the laws, but also the administration of them. Such was that of Athens,^ the only highly civilized form of democracy that ever existed, where people from the streets, who could gather in the public places of that city, met and decided lawsuits, questions of the right of property, of the life or death of individuals, of the election, punishment, or censure of their officers, of the proprietorship of land, or of mak- ing war or preserving peace. This may have seemed well in theory, but history shows that it resulted in a scene of perpetual turmoil. There was little security to life or liberty when the best men in the community were compelled to drink the deadly hemlock, or were banished from their homes. Their intellect was stimu- lated, and they prized human effort directed in the channels of imagination, of science, and of literature, but it was still far from being a place where personal rights were respected, or ^ In the Athenian republic, the most democratic of the Greek states, when the population and suffrage were most extended, 317 B.C., but 21,000 were entitled to vote out of more than 500,000. . . . Real democracy was first put in practice by the New England Col- onies, and to this day the most perfect examples are the New Engla ^d towns, where the whole adult male population assemble togetti«i c..^ decide by their votes their own public affairs. Am- erican Cyclopsediit, tit. Democracy. 86 LECTUEES ON CONSTITUTIONAL LAW. Lecture II. wliere any man of modern times would have ^ The United states ^^^^^ williniT to make his home. not a democracy. ~ But our forefathers did not adopt any of the forms referred to. They had suffered from the evils of a monarchical as well as an aristocratical system ; for England was, a century ago, more of an aristocracy than anything else. A pure democracy was neither possible nor desirable ; but still they determined that the people should be felt in the direction of public affairs, and so they constructed what may be called a com- posite government, a representative republican government, one in which the powers that be- long to all sovereignties were divided and placed in different depositories. Division of The proper division of these powers is of the powers. greatest importance, and they were wisely dis- tributed by the framers of the Constitution among the three branches which have come to be recognized in all good governments as essen- tial to a proper balance of their functions, — the executive, the legislative, and the judicial. The ' legislative branch enacts the law, the executive enforces it, and the judicial interprets its pro- visions, both as regards public and private rights, as between the citizens themselves and as between them and the Government of the United States. This, then, is the Constitution of the United States. It establishes these powers, defines and limits them. It distributes them among these three departments, and then confines them to their proper scope and field of action, in order that there may be a useful and safe administra- PKINCIPLES OF ITS CONSTRUCTION. 87 tion for the benefit of all the people, for whom lectuhe ii. all ffovernments are instituted. Division of '^ ^ powers. You will observe, however, that the lines that mark that division are not perfect. Perhaps it is impossible that they should be ; it may be desirable that they should be more perfect than they are. As regards the executive, for instance, the powers which properly belong to that branch of the government are not completely vested in the President, for we find that the Senate is required to give its assent to all treaties made by the President before they can be operative. The Senate is also required to confirm all nom- inations to the higher offices before they become valid appointments.^ So that these two great duties, of making appointments to office and making treaties, which are usually classed as executive functions of the Government, are to some extent divided in their exercise, as w^ell as in the forms necessary to give them efficacy, between the President, who is the Executive, and the Senate of the United States, which is one of the branches of the legislative department.* So, also, in regard to declaring war and mak- ing peace, which in most other countries are held to be exclusively executive functions, and which even under the popular government of Great Britain remains in the Crown alone, they are, under our system, participated in by both the executive and legislative branches.^ The 1 Constitution, Art. 2, sec. 2, par. 2. 2 The gi-eat disadvantage of the Swiss Confederation was in the power which the cantons formerly had of levying war against each 88 LECTURES ON CONSTITUTIONAL LAW. Lecture II. Division of powers. Constitution says that Congress shall have power to declare war ; ^ the President takes part in that matter only as he is a part of the latter. The laws are required to be signed by him, and it is, therefore, evident that the legislative branch is not entirely separate from the executive, but that it thus becomes an integral part of that department of the Government. If, on the contrary, he does not see fit to sign the bills which have been passed by the Congress, he usually sends them back to the body in which they originated with his reasons and objections thereto. It then requires a two-thirds vote of both branches of the Legislature to enact them into laws over such veto.^ It is, therefore, ap- parent that the power of legislation is not con- fided wholly to the legislative branch of the government Perhaps the judicial power is left more nearly intact in the hands of the judiciary than any of the others, but it is not wholly so. The power of framing impeachments and trying them, which is eminently a judicial function, as much so as it is to indict a man and try him for murder, belongs wholly and exclusively to the two branches of the legislative department. The other, and of resisting the Central Government in its method of conducting the foreign policy of the country. This was, however, remedied in the present constitution, which gives the control of the army, foreign affairs, and settlements between cantons, and the management of the police and post-offices, to the Federal Assembly. This body represents all the cantons, and consists of two chambers. 1 Constitution, Art. 1, sec. 8, par. 11. 2 Constitution, Art. 1, sec. 7, par. 2. PKINCIPLES OF ITS CONSTKUCTIOIS". 89 House of Representatives formulates the charges lecture ii. or indictment, and the Senate tries and deter- ^^^^^'"° °^ ^ powers. mines them.^ But, after all, those are only exceptions, and it remains true that, for general and most useful purposes, the best feature of our Constitution is that it does make this substantial separation of power among these three departments. These departments, under our form of govern- ment, are co-ordinate in dignity. Neither of them is intended, by the theory of our Consti- tution, to be subjected to the other. The Presi- dent cannot be compelled to make a treaty, or to appoint anybody to office that he does not wish to. The Legislature cannot be compelled to pass any laws, and it alone can exercise that function. The judiciary alone can construe them, when enacted, and enforce them by proper judgments of the various courts. Mr. Justice Wayne has advanced this idea in very appro- priate terms .^ " The departments of the Gov- ernment are legislative, executive, and judicial. They are co-ordinate in degree to the extent of the powers delegated to each of them. Each in the exercise of its power is independent of the other, but all rightfully done by either is bind- ing upon the others. The Constitution is su- preme over all of them, because the people who ratified it have made it so." ^ 1 Constitution, Art. 1, sec. 2, par. 5 ; Art. 1, sec. 3, par. 6. 2 Dodge v. Woolsey, 18 How. 331, 347. 8 Whenever the poHtical laws of the United States are to be dis- cussed, it is with the doctrine of the sovereignty of tlie jieoiile tliat we must begin. De Tocqueville, Democracy in America, vol. 1, p. 36 (ed. N. Y. 1838). 90 LECTUKES ON CONSTITUTIONAL LAW. Lecture II. WliGH tlie Constitution was first framed, it cStuUon wtn was received by a great many thinking people promulgated. with much distrust. An examination of the history of the proceedings of the conventions of the States, which were called to ratify and con-' firm that instrument, and without which it would have had no efficacy, will show that it was fiercely assailed, and that in the debates in regard to its adoption in several of the States the issue was for a long time doubtful.-^ It is well, perhaps, to consider some of the objections to it in the light of a century's experience.^ One of the greatest was that it conferred too much power upon the Central or Federal Gov- ernment, and that it curtailed too largely the powers of the States. It will be remembered that the Colonies had just been emancipated from the parent government. They had worked together but a short time, and that not very 1 Washington wrote to Patrick Henry, September 24, 1787 : "I wish the Constitution whicli is offered had been more perfect ; but it is the best tliat could be obtained at this time, and a door is opened for amendments hereafter. The political concerns of this country are suspended by a thread. The convention has been looked up to by the reflecting part of the community with a solici- tude which is hardly to be conceived ; and if nothing had been agreed on by that body, anarchy would soon have ensued, the seeds being deeply sown in every soil." Bancroft's History of the Constitution, vol. 2, p. 231, 2 Eichard Henry Lee published a series of papers called ' ' Letters from the Federal Farmer," in which the chief objections to the new constitution were stated : that it created a national legislature where the votes were to be, not by States, but by individuals, whose salaries were to be paid out of the general treasury, thus making them independent of their own States, and that they had an un- limited power of taxation ; that too much power was given to the Federal judiciary ; that an oath of allegiance was required to the Federal Government, and that no Bill of Eights was included in it. PRINCIPLES OF ITS CONSTRUCTION. 91 harmoniously. Each man felt that his own lecture ii. State was more to him, and that he had a larger constuutionwhen interest in it than he had in the welfare of all proiuuigated. the others, and it is one of the most creditable as well as remarkable things that the superior discernment and influence of a few great minds could overcome these strong prejudices, and so crystallize the wise provisions of the Consti- tution into a new form of government, w^hich has proved so harmonious in its action and per- manent in its character. Several of the States expressed their dissatisfaction by proposing amendments, under the provision in the instru- The ameudments. ment therefor, and within two years after it was ratified,^ Congress passed and referred to the different States twelve amendments,^ ten of ^ The Constitution went into operation Marcli 4, 1789. Owings V. Spe>'d, 5 Wlieat. 420. 2 Tlie first and second articles, of the twelve proposed and passed, were never ratified. The first is interesting in view of the recent strictures, in the press and elsewhere, upon the unwieldy character of the present House of Representatives, which now con- sists of 325 members and 8 delegates. [Since this note was writ- ten the number has been increased to 35G.] The miratified articles are as follows : 1. After the first enumeration required by the first article of the Constitution, there shall be one representative for every 20,000 until the number shall amount to 100, after which the proportion shall be so regulated by Congress that there shall not be less than 100 representatives, nor less than one representative for every 40,000 persons, until the number shall amount to 200 ; after which the proportion shall be so regulated by Congress that there shall not be less than 200 representatives, nor more than one represent- ative for every .50,000 persons. 2. No law varying the compensation for the services of senators and representatives shall take effect until an election of represent- atives shall have intervened. See Appendix to Annals of 1st Congress, vol. 2, pp. 1984-5 ; also Mickey's Constitution, p. 35, note. 92 LECTUKES ON CONSTITUTIONAL LAW. Lecture II. wliich were ratified finally by the requisite num- The amendments, i , i j.i j. r xi r-i ±'± j.* ber to make them a part or the Constitution. These were soon followed by two others, the eleventh and twelfth, after the ratification of which it remained unchanged for a period of more than sixty years. ^ The objections to In tliose amendments, if they are carefully the Constitution, -^xamincd, may be plainly seen this distrust of the power of the Central Government,^ and this 1 At the first Congress after the organization of the Government, the House proposed seventeen amendments to the Constitution. These were by the Senate reduced to twelve, and they were then submitted to the States. At various times between November, 1789, and March, 1790, ten of these amendments were ratified by the Legislatures of the follow- ing States : New Jersey, North Carolina, Maryland, New Hamp- shire, Delaware, South Carolina, New York, and Pennsylvania; one less than three-fourths of the twelve States then in the Union. Annals of 1st Congress, vol. 2, Appendix. In May, 1790, Khode Island came into the Union, and in June her Legislature ratified, but as there were now thirteen States, three-fourths had not yet given their assent. Subsequently Vermont was admitted, and in November, 1791, ratified the amendments ; but there were now fourteen States, and the requisite number had not been obtained. But in December of the same year, Virginia, one of the original twelve, gave in her adhesion, and thus the ten amendments became a part of the Constitution. Annals 2d Congress, pp. 54, 75. These were the first ten amendments now in the Constitution, and were declared in force December 15, 1791. The eleventh was proposed by Congress, March 5, 1794, and declared in force January 8, 1798 ; the twelfth, proposed December 12, 1803, and proclaimed September 25, 1804 ; the thirteenth, pro- posed February 1, 1865, and proclaimed December 18, 1865; the fourteenth, proposed June 16, 186(5, proclaimed July 20, 1868 ; and the fifteenth, proposed February 26, 1869, and proclaimed March 30, 1870. It was mainly through the efforts of Mr. Madison, who pro- posed and advocated them, that the first ten amendments were passed through Congi-ess. 2 Story on the Constitution, sec. 303, note. 2 As showing the diversity of opinion existing at the time the Constitution was finally ratified, it may be worthy of note that two PRINCIPLES OF ITS CONSTRUCTION. 93 desire to protect the States from being over- lecture ii. whelmed and annihilated by its exercise. The ^'ctSuToa*: contest has continued to the present time. It would be well for the country if it could be said that it had been settled by the results of the recent war, but while it has undergone consider- able discussion, it has not been finally deter- mined. It is sufficient to say here, although others may disagree with this conclusion, that the experience of a century under the Govern- ment as it was then organized has sho^vn that the danger to its perpetuity and to the people of this country did not lie in the aggrandizement of th>'5 central authority, but rather in the power that remained in the several States, Another objection, second in importance in The executiTe. hundred and one amendments were proposed in one form or an- other by the different States in the course of their action upon its ratification. Of course many of them referred to substantially the same matter of grievance. " It is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to "union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments de- manded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress, and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Chief Justice Marshall in Barron v. Mayor and Council of Baltimore., 7 Pet, 243, 250. J]4 LECTUEES ON CONSTITUTIONAL LAW. Lecture II. tliG minds of thosG who were not faA^orable to e execu ive. ^j^^ Constitution as it was submitted for ratifi- cation, was that too much power was lodged in the executive office.^ It was said to be incon- sistent with the genius of the Government which they were estabUshing, that any one man should exercise the extraordinary authority which that instrument vested in the President of the United States ; that the appointment of all the officers of the Federal Government, the distribution of all its patronage, and the control of its army and navy, would, in process of time, enable some man to build up a power that could not be re- sisted. It was argued that some one would arise who, by that power and with that inclination, would destroy the really democratic features of our government, and finally establish a mon- , archy in its place. This belief, though natural enough at that time, was a very great mistake. The nearer we approach to individual responsibility in the ex- ecutive, the nearer will it come to perfection. It is my deliberate opinion that, of all the three branches which have been discussed, the execu- 1 "It will always be far more easy for the State governments to encroach upon the national authorities, than for the National Government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments, if they administer their affairs with up- rightness and prudence, will generally possess over the people ; a circumstance which at the same time teaches us, that there is an inherent and intrinsic weakness in all Federal constitutions, and that too much pains cannot be taken in their organization, to give them all the force which is compatible with the principles of liberty." The Federalist, No. 17. PRINCIPLES OF ITS CONSTRUCTION. 95 tive has been in time, under the construction LErrrRK n. given to the Federal Constitution and its prac- ^ ^^^'^^^ '^'^' tical administration, most shorn of the puwers granted to it thereby. The President of the United States for the first forty or fifty years did practically nominate all public officers ; he selected his cabinet himself, and personally made other appointments, although possibly a few private friends, and occasionally a member of Congress or two, may have made suggestions. But within the memory of many men now living the time arrived when the President (as the gentleman who travelled around the world with General Grant reports him as saying) only reg- istered the edicts of members of Congress in making appointments to office ; that is to say, in the function about Avhicli the Executive is mainly employed, he has become subservient to the legislative branch of the Government. This objection, therefore, has proved to be without foundation, and is not now seriously considered by thoughtful men. Of all the delusive ideas, or fallacies, that ever entered anybody's brain, the most unfounded is this — that any President can ever make himself a perpetual dictator, either in our time and generation or in those which are to come. But the branch of the Government which has The Congress, grown the most, and which a sagacious man might perhaps have foreseen would so expand, is the legislative.^ Coming more immediately, as it 1 It is without doubt absolutely necessary for secui'ing the con- stitution of a State to restrain the executive power ; but it is still 96 LECTURES ON CONSTITUTIONAL LAW. Lecture II. The Congress. Weakness of the judicial branch. does, from tlie people, at least one branch of it, and representing a constituency who look to it as representing them in all their legislation, much is tolerated in it which would not be toler- ated in the executive or judicial departments; because the people reason that if their repre- sentatives do badly during their present terms they may be turned out at the next election, and they are not, therefore, afraid that they will very greatly exceed their powers. The judicial branch is the weakest of all.^ It has no army. It has no navy, and it has no purse. It has no officers, except its marshals, and they are appointed by the President and confirmed by the Senate. They are the officials to whom its processes are sent, but they may be removed at any time by the Executive. The clerks whom the judges are permitted in some form or another to appoint, have salaries and compensations regulated by the legislature ; and a clerk who may receive $20,000 or more in fees must pay all but $3500 of such receipts into the Treasury of the United States.^ It is then, so far as the ordinary forms of power are more necessary to restrain the legislative. De Lolme, Constitu- tion of England, London, 1834, p. 190. Montesquieu said that the English constitution would perish ■when the legislative power becomes more corrupt than the execu- tive. 1 Montesquieu says : " The judiciary is the weakest of the three departments of the government." 2 No clerk of a district or circuit court shall be allowed to retain fees, over and above necessary office expenses, in excess of $3500 per annum, [Rev. Stat. sec. 839,] except in California, Oregon, and Nevada, $7000 [sec. 840 J. PKINCIPLES OF ITS CONSTRUCTION. 97 concerned, by far the feeblest branch or depart- i-ecture ii. ment of the Government. It must rely upon the judLaiTrancU.^ confidence and respect of the public for its just weight and influence, and it may confidently be asserted that neither the country, the people, nor the other branches of the government, have ever been found wanting in that respect or confidence. It is one of the best tributes which can be paid to the American nation, a tribute which it de- serves above all others even of Anglo-Saxon descent, and one which can be paid to no other race, that it always submits to the law as ex- pounded by its judiciary. Under all the excite- ments of bitter contests, involving great financial interests, power, position, and even political existence, in fact everything which could be properly brought within its judicial cognizance, the people have always felt that their interests were safely intrusted to its charge. There has never been a grander phenomenon witnessed in the history of any country than that which oc- curred some years since in the State of Maine, when a body calling itself a legal legislature, and claiming to be an authorized government, quietly laid down its functions and dispersed at the mere opinion of a court that it had no right- ful existence.^ iln 1879 there arose a controversy between the Fusionists and the Republicans in the State of Maine, which was hotly contested, and the feeling became exceedingly intense and bitter on both sides. The decision of the Supreme Court of the State of Maine, by which the organization of the Legislature by the Republicans was sustained, was rendered on the 16th of January, 1879. See full history of the origin and conclusion of the difficulty in Appleton's Annual Cyclopaedia, 1879-80. 08 LECTURES ON CONSTITUTIONAL LAW. Lecture II. Difficulties of interpretation. Executive con- struction some- times necessary. Of course there are nice questions constantly arising between these various departments of the Government as to the strict lines of demar- cation which separate one from the other, and they are frequently of great importance. The fundamental principles by which the various powers of the Government are distributed among them are laid down in the Constitution, which it is the duty of the courts to construe,^ when- ever it shall come before them in a fair judicial proceeding, and they can construe it in no other way. It is a mistake to suppose that the special function for which the Supreme Court of the United States was created was to interpret and construe that instrument. It is, certainly, tjie special function of the courts to construe it in a judicial proceeding, with parties properly before them ; but it is equally the duty of each member of Congress, as well as of the Executive, to make that construction for himself when he is called upon to act, within the sphere of his duty, upon any matter involving a question of constitutional law. It is also true that such member or Ex- ecutive is bound to consider that in the execu- 1 It has been often decided that the Supreme Court is the final arbiter of the meaning of the Constitution. This question has been very fully examined in the cases of Vanhorne'^s Lessee v. Dorrance, 2 Dall. 304 ; Martin v. Hunter's Lessee, 1 Wheat. 304 ; Cohens v. Virginia, 6 Wheat. 204 ; Ableman v. Booth, 21 How. 506. Story, in his treatise on the Constitution, after discussing the question of who is final judge or interpreter in constitutional con- troversies, says that the appropriate cimclusion is that the judicial department of the United States is, in the last resort, the final expositor of the Constitution, as to all questions of a judicial nature. PRINCIPLES OF ITS CONSTRUCTION. 99 tion of the law, as between such parties, all other lecture il branches of the Government must yield to the smictkirsomJ- interpretation declared by the courts ; yet, when times necessary, the question is addressed to his conscience as to whether he can vote for a proposed measure, or sign a certain bill which is presented to him, it is for him to decide, with the best light that he can obtain, whether the matter is within the con- stitutional power of the body of which he is a member. It wijl thus be seen how difficult it is to get a settled construction of this great instrument ; and, since every branch of the Government, when called u23on to act originally, is bound to act on the judgment which it forms of its own powers, it is not hard to understand the reason why the exact relations of the States to the Federal Gov- ernment should still, in many instances, remain an open and undecided question. We are, how- judicial interpre- ever getting a body of decisions which have '^'';° ^^;,""^^ '^^ o o J sustained. become recognized principles. These interpre- tations of our organic law have been more often made by the judicial branch than by all the others, although largely by them as well, and have been very clearly brought out in the light of the events which have arisen to test it. For example, many points, in regard to which a con- struction was put upon it during the late insur- rection, as to the powers that could be exercised in such an emergency by the President, by the War Department, by the Legislature, or by the Judiciary, all underwent a severe and thorough investigation, and such construction was thus 100 LECTURES ON CONSTITUTIONAL LAW. Lkcture II. Judicial interpre- tation should be sustaiued. Principles of in- terpretation. practically tested. No man can say that all of the many decisions have been correct ; but yet it must, in the light of any impartial mind, be clear that we are completing a construction of our Constitution, and are deciding a great many things with regard to it which will remain forever. It is very desirable that this should be so. All loose methods of construing authority are dangerous, as well as all such as are too limited to serve the purposes for which they were in- tended. The Constitution must be looked at in the light of the ends it was designed to accom- plish, having in view the evils it was intended to remedy and the benefits it was to exert. We must examine it in the light of the fact that we were a dissolving people, which it was designed anew to bind together in a relation which should continue forever ; that the Confederation was rapidly falling to pieces for want of power to pro- tect itself ^^ and that one of the main purposes of ^ Upon the report, February 21, 1787, by a majority of one, that the Confederation needed amendments, and the proposed convention was the most eligible means of effecting them, many members of the Congress considered it a deadly blow to the existing Confeder- ation, others as a harbinger of a better one. All agreed and owned that the Federal Government, in its existing shape, was inefficient, and could not last long. 5 Elliot's Debates, 96. ' ' The adoption of the first eleven amendments to the Constitu- tion, so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. Aiid it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late Civil War. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of State organizations to combine and concentrate all the powers of the States and of contiguous States for a determined resistance to the General Government. PRINCIPLES OF ITS CONSTRUCTIOX. 101 this instrument was to give to the Central Gov- lecturk ii. ' eminent that power. It must not be forgotten tJrpretatToM. '"" that the Confederacy, or the government that existed under the Articles of Confederation, could only request the States to do a great many things necessary in order to maintain and carry on the Federal Government successfully, and that it was desirable to give the new one the power of operating directly upon the people without going through the instrumentality of the States. We must consider that under the old order of things the laws were enacted to take effect through the action of the State legis- latures,^ which ineffective and circuitous method was to give way to the direct legislation of Congress ; so that the action of the legislative branch, and concurrently with it the decisions of the judiciary, should act immediately upon the people themselves, without the consent, and even against the wishes, of the States, if it were necessary. Unquestionably, this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National Government." Slauyhter-House Cases, 16 Wall. 3(5, 82. 1 The taxes for paying the proportion needful for charges of war and other expenses for the common defence, or general welfare, were to be "laid and levied by the authority and direction of the Legislatures of the several States." Articles of Confederation, VIIL The Articles of Confederation were entirely without any pro- vision for enforcing the measures which they authorized Congress to adopt for the general welfare of the Union. . . . The sole means it gave to Congress of supplying the treasury of the United States was to vote what sum was wanted, and call upon the Legislature of each State to pay in its proportion within a given time, Curtis' Constitution. 102 LECTURES ON CONSTITUTIONAL LAW. Lecture II. Principles of in- terpretation. All these things are to be considered when it is sought to determine the force and eifect of any of its provisions. Like a remedial statute, or a contract between individuals, it must be construed in the light of the times in which it was made, with reference to the evils to be reme- died, the good to be effected, and, above all, in the light of the idea that it was made to create a perpetual government of the people, among the people, and by the people.^ Another canon of construction which must not be overlooked has reference to the funda- mental nature of the novel government which was erected, very much in the nature of an experiment,^ by the Colonies when they severed the ties which bound them to England. The Federal Government which they founded is one of conceded or granted powers. The State gov- ernments are governments authorized to exercise all the powers not prohibited by the Federal Gov- 1 The Constitution was for a new government, organized with new substantive powers, and not a mere supplementary charter to a government already existing. The Confederation was a compact between States, and its structure and powers were wholly unlike those of the National Government. The Constitution was an act of the people of the United States to supersede the Confederation, and not be ingrafted on it, as a stock through which it was to receive life and nourishment. Story, J., in Martin v. Hunter'' s Lessees, I Wheat. 332. 2 A constitution adopted with great opposition, the .subject of the gravest difference of opinion among the wisest men on its most material points, was quite as likely to fail as its predecessor, the Articles of Confederation, had failed. The field was absolutely untried. Never before had there been such a science in the world as the law of a written constitution of a government. Address of Hon. Edward J. Phelps, m 1879, before the American Bar Associa- tion. rRINCIPLES OF ITS CONSTEUCTION. 10^ ernment or by the Constitution of the United hRcruuK u. States.^ There is a correspondinc^ difference f """••'''.' "^"'- i ~ terpretation. in construction, therefore, and this difference pervades the Federal and State constitutions throughout the entire catalogue of their powers and the limitations thereon. These need too extended an examination to be considered here, but will be treated under their appropriate heads. Difference be- One illustration of the dift'erent nature of the IT" w'^'' '""' Federal Goveru- powers of the State and Federal Governments meuts. is in the authority to punish offences. A State legislature can declare any act of an individual deemed by it to be detrimental to the public good to be an offence, and can prescribe for it a punishment. Whatever that body may con- ceive to be injurious to the general welfare they can forbid, and if it is done they can punish the infraction of their law by a penalty. But the Federal Government can only punish offences against the powers which it exercises. Having exclusive control of the carrying of the mail,^ it can punish persons unlawfully interfering there- with in any way. With the power to coin money it has also been given the power to punish the counterfeiting of that coin. Having authority to borrow funds for its needs, it can issue bonds therefor, and can punish the coun- terfeiters of those bonds, as well as those who 1 The powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment X. 2 Congress shall have the power to establish post-offices and post-roads. Constitution, Art. 1, sec. 8, par. 7. 104 LECTUEES ON CONSTITUTIONAL LAW. Lecture II. put tliem ill circulation.^ But the national fweeTsutetnd autlioritj lias no power to punish nuirder or Federal Govern- theft in general, bccause that is within the province of the individual States. The General Government can levy taxes, but they must be for a defined purpose, such as the payment of the public debt, or of the array and navy of the United States. It has no right to raise money by taxation for religious purposes, or for a thousand things on account of which States may impose taxes and collect them of the people. It has no such power, because, as has already been intimated, it is not granted by the Constitution.^ There is no part of the great system of con- stitutional law in which modern improvements have been greater, and have more steadily pro- gressed in a proper direction, than in that of limitations upon the powers of the legislative and the executive branches of the government.^ Coustitutional limitation of power. 1 Congress shall have power to borrov? money on the credit of the United States. Constitution, Art. 1, sec. 8, par. 2. To provide for the punishment of counterfeiting the securities and current coin of the United States. Id. par. G. It is within tlie constitutional powers of Congress to enact laws to provide for the punishment of the offence of counterfeiting notes of a foreign bank or corporation. United States v. Arjona, 120 U. S. 479. Congress shall have power to lay and collect taxes, duties, im- posts, and excises ; to pay the debts, and provide for the common defence and general welfare of the Ujiited States. Constitution, Art. 1, sec. 8, par. 1. 2 There can be no lawful tax which is not laid for a public pur- pose. See cases cited ; Loan Association v. Topekn, 20 Wall. 655, 664. 3 The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the PRINCIPLES OF ITS CONSTRUCTION. 105 Both the Federal and the State constitutions of lecture n. this country are full of them.^ Under the limitaUoa'^oT boasted constitution of Great Britain there are power, many instances in which a man has been con- demned to death by its Parliament without any reference to any statute or law existing at the time authorizing such a proceeding. By virtue of the omnipotent power reposed in the king and the Parliament of that country a man might lose his life, his property be taken from him, and his blood become so attainted that even his children could not inherit it.^ Our constitutions are limited in many such respects. No government in this country would undertake to deprive a man of his liberty or property, much less his life, without the author- ity of an already existing law.'^ So in regard to legislative, and the judicial branches of these governments are all of limited and defined powers. Loan Association v. l^opeka, 20 Wall. 655, 66.S. 1 " The Executive, in our governments, is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the Legislatures is the most formidable dread at present, and will be for many years." Letter of Jefferson to Madison, March 15, 1789; Jefferson's Works, vol. .3, p. 5. 2 See the instance of attainder of Lord Seymour, in 1548-9, whom according to the policy of that age the Duke of Somerset thought it necessary to crush by a bill of attainder. He was in his turn also prosecuted in the same manner within a few months after the execution of his victim. Hallam's Constitutional History of England, vol. 1, p. .39 (London, 1855). See also the attainder of the Earl of Strafford by the Long Parliament in 1040. 2 lb. 10.3. Bills of attainder were by no means uncommon in England, espe- cially under Henry VIII. The subject of bills of attainder is discussed at length, both in the opinion of the court and the dissent thereto, in Cnmmings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 3S?,. 8 No bill of attainder or ex post facto law shall be passed by suffrage. 106 LECTUKES ON CONSTITUTIONAL LAW. lk(ti'rk ii. private property taken for public uses. All limitaHon'ot^ governments exercise this right ; but while it is power. done by others without any fixed rule in regard to compensation, all of our constitutions, both Federal and State, provide that private property shall not be so taken without just compensation.^ Indeed, the tendency of all changes in constitu- tional governments, both in this country and in all others where sound principles of political economy are taught and discussed, is to the fur- ther protection of private rights as against the governing power, which represents the entire body politic. Extension of the There is auothcr change going on in this country, which, whether it shall turn out to be so worthy of praise or not, remains for time to settle; that is, the tendency to popularize suf- frage and to extend the elective principle to a vast number of offices not formerly within its purview. But it is difficult to believe that, in Congress (Constitution, Art. 1, sec. 9, par. 3), or by a State (Art. 1, sec. 10, par. 1). No State shall make or enforce any law that 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 person within its jurisdiction the equal protection of the laws. Constitution, Amendment XIV, sec. 1. Nor shall private property be taken for public use without just compensation. Amendment V. 1 In nearly all of the constitutions of the various States of the Union provision has been made substantially of this character, and in most cases in the exact language of the Federal Constitution. It usually occurs in what is designated as the Bill of Rights prefa- tory to the main body of the instrument. See Charters and Con- stitutions of the United States (Ben : Perley Poore, Washington, 1878), containing the complete texts of all the constitutions of the States. PRINCIPLES OF ITS CONSTRUCTION. H)7 any country where the people are governed by lecturk ii. laws made by legislatures, the basis upon which suffrage!'' " the representation stands can be too large. It may, however, be doubted whether the elective prhiciple can safely be applied to that class of officers, especially the judicial, whose duty it is to enforce the laws. The importance of a thorough knowledge of a knowledge of constitutional law to those who propose here- ^g^^l^^^^J'^J^'^^'"^ after to practise the profession of the law in this lawyer, country can hardly be exaggerated. The time has been, and until very recently, that a lawyer might attain a great practice and a very high reputation in the State courts, and some of the first reputations in the country have been so made, without ever having practised at all in the Federal courts, or having his attention called, except perhaps incidentally, to this subject, or the matters we have been discussing. But that period in the history of the country has passed. The time has come when the Constitution and laws of the United States are not the mere theo- retical object of the thoughts of the statesman, the lawyer, or the man of affairs ; for the opera- tions of its Government now reach to the recesses of every man's business, and force themselves upon every man's thoughts. The history of the events which led to the recent War of the Rebellion, and of the times subsequent thereto, taught the people of this country, in a. manner which it is to be hoped will never again be necessary, that this Govern- ment within its sphere is supreme, and that its 108 LECTURES ON CONSTITUTIONAL LAW. Lecture II. Sphere is a very extensive and pervading one. fJ'ZS:,:! Leaving out of the question now all tliat took essential to a place Under the period of reconstruction, many awyer. other matters have come into play in the opera- tions of the Federal Government which were pre- viously almost unknown. An illustration of this is to be seen in the internal revenue system, under which, during the years immediately succeeding the Rebellion, almost every species of property, occupation, and pursuit, and many things which had scarcely acquired the name of property or occupation, were taxed by the Federal Government to pay the interest and principal of the debt incurred in that war, as well as for the expenses of the Government, largely increased by its operations. Those statutes, and the taxes which were laid under them, even if everybody was willing to submit to them cheerfully, required construction. They were new to the country. When the laws were put into operation the officers themselves were frequently very much perplexed to know what they meant, and the Government, desiring that no person should be injured, was ready, and afforded opportunities, to have the laws tested by courts of justice. A man had but to pay his taxes, and take an appeal to the com- missioner who had supervision of those matters. If he failed there he could sue the man who col- lected them, and recover if they were illegally assessed. The number of suits growing out of this class of cases was immense, and has been so ever since the internal revenue system was es- PKINCIPLES OF ITS CONSTRUCTION. 109 tablished. The list of articles subject to taxation lecturk ii. has been very larsrely decreased, but it is prob- ,^ ^I',*"*''".''*""'/'^ able that a very large sum, possibly approaching essential to a one hundred millions of dollars, which sum has '^^^^'""' been largely exceeded every year since the estab- lishment of the present system in 1863, will always be raised annually in this country by the taxation imposed by the Federal Government on spirits, tobacco, and malt liquors.^ But it is not only when a suit is brought, or is to be brought, that the lawyer is called upon to understand these things, or to give counsel in regard to this jurisdiction and these laws. He is very often consulted as to what a party should do where no suit is contemplated. Neither is this knowledge necessary or useful only in the large business centres ; but the system permeates the entire country, so that the remotest village lawyer may be called upon to advise upon ques- tions of constitutional or statutory construction, or as to the manner in which the laws are en- forced by the officials charged with that duty. It may also be noted that the bankruptcy laws have greatly modified the existing system of enforcing contracts or collecting debts, in the case of persons who fail to meet their engagements, or to pay for want of ability to do ^ For annual statistics of internal revenue receipts of the United States from March 4, 1789, to June 30, 1886, see Spofford's Ameri- can Almanac, 1887. Many decisions of controverted questions on this subject, which were referred to the Attorney General of the United States, are collated in the Digest of Opinions of Attorney General, tit. Internal Revenue. 110 LECTURES ON CONSTITUTIONAL LAW. Lecture II. A knowledge of the Constitution essential to a lawyer. SO. Those laws are administered under Federal statutes, and not only under an act of Congress, but under the rules of practice prescribed and adopted for the courts of the United States.^ The lawyer who does not know when a man has committed an act of bankruptcy, or who does not know how to institute a proceeding in such a court, can hardly expect to receive a full share of practice in any community. In addition to this the admiralty jurisdiction of the Federal courts has, within the last few years, by constructions placed upon it by those courts, received an immense increase in its extent. Down to 1851 it was held to be limited in fact to the seaboard, if not actually to the sea. It extended no further on the rivers ^ Congress shall have power ... to establish . . . uniform laws on the subject of bankruptcies 'throughont the United States. Constitution, Art. 1, sec. 8, par. 4. See acts of April 4, 1800, 2 Stat. 19, c. 19; December 19, 1803, 2 Stat. 248, c. ; August 19, 1841, 5 Stat. 440, c. 9 ; and March 2, 1867, 14 Stat. 517, c. 17G. A State may, however, pass a bankrupt law, provided there is no act of Congress conflicting with it. Sturges v. Crowiiinshield, 4 Wheat. 122. As to what is a bankruptcy, see opinion of Judge Catron deliv- ered in the Circuit Court Tii re Klein, 1 How. 277. The whole sub- ject was elaborately considered by the Supi'eme Court of New York in Kunzler v. Kohmis, 5 Hill, 317, and Sackett v. Andross, 5 Hill, 327. By the act of Congress, approved June 7, 1878, 20 Stat. 99, c. 160, the bankruptcy law of 1867, 14 Stat., 517, c. 176, and all supplementary acts, incorporated in the Revised Statutes, sections 4972 to 5132, were repealed, to take effect September 1, 1878. Pending cases were not, however, affected. A strong effort has been made to secure another national act of a similar character, and one has been past the Senate, but failed of action in the House. For rules of court in bankruptcy, see Desty's Federal Procedure, p. 337. PRINCIPLES OF ITS ( ONSTKUCTION. Ill than the tide ebbed and flowed. But the Su- lecture ii. preme Conrt of the United States has since de- ,^ '^;':'^i«:|««."f I- the (.onslifutioii cided that it extended to all navigable streams ; essential to a that it was a system of laws intended to have '^^^^*^'"' operation upon the interests of navigation ; that whether it took place upon salt or fresh water was entirely immaterial, and that the Constitu- tion of the United States, when it declared that the Federal courts should have jurisdiction in admiralty, meant that they should have jurisdic- tion in all that class of cases which heretofore had been called admiralty cases, whetlier they grew out of salt water transactions or of engage- ments and acts upon fresh water. ^ The decision of this principle has made the subject of questions concerning the carrying trade by steamboats upon our rivers and lakes one of much interest to every lawyer through- out the great interior of this country. Every steamboat becomes, in regard to suits concern- ing its transactions or its contracts, as well as in regard to torts committed by its officers, sub- ject to the admiralty jurisdiction of the courts of the United States. By an act of Congress passed in the earliest history of the country, where the action is, strictly speaking, an admi- ralty case; that is, one known and recognized 1 In the case of The Thomas Jefferson, 10 Wheat. 428, it was decided that the jurisdiction of tlie courts of admiralty in the United States was limited to the ebb and flow of the tide ; but in The Genessee Chief v. Fitzhugh, 12 How. 4-43, it was held that it was not limited to the tide waters, but extends to all pubfic navi- gable lakes and rivers where commerce is carried on between differ- ent States, or with a foreign nation. See Notes upon this Lecture. atioQs. 112 LECTURES ON CONSTITUTIONAL LAW. Lecture II. as belonging to the ancient jurisdiction of admi- L^constiuuioi ^'^l^y i^ England and onthe Continent, the Fed- esseutiai to a eral courts havc exclusive jurisdiction, and it ^'''^^^^' cannot be exercised by the State courts.^ If a lawyer, therefore, expects to have a large prac- tice in any part of the country now, he must know something of admiralty law and its juris- diction and application. General consider- It is evident, therefore, that the discussion of the principles which have been outlined has something more than a mere theoretical value, not only to every lawyer, but to every citizen living under the authority and protection of a constitutional government. Questions of consti- tutional law, especially in regard to the Consti- tution of the United States, have become matters of common occurrence in the courts. Whether it is that the Congress of the United States has taken a more liberal view of its powers than formerly, or whether it is that the people are more disposed to question the exercise of its powers, may be open to question, but certain it is that hardly any act of that body in modern times can be brought to bear upon an individual, to which he is reluctant to assent, that he does not attempt to raise the question of its con- stitutional power to pass it. Our books of reports, both State and Federal, are thus filled 1 The original jurisdiction in admiralty exercised by the District Courts, was regulated by the act of September 24, 1789, 1 Stat. 73, c. 20, and enlarged by the act of February 26, 1845, 5 Stat. 726, c. 20. It is exclusive in those courts, not only of other Federal courts, but of the State courts also. The Hine v. Trevor, 4 Wall. 555, 569. PRINCIPLES OF ITS CONSTRUCTION. 113 with decisions upon questions of constitutional lkcture ii. 1 General consider- ■^^^^- ations. With the rapid progress of this country in wealth, and its growth in population and power, it is but natural that there should be a great in- crease in litigation. Out of the multiplication of corporations of all kinds, and the changes in the methods for the transportation of persons and property, which have taken place within a few years, have arisen a vast number of suits before almost entirely unknown, involving also new principles of construction and application. The Federal Government is exercising to some interstate cob»- extent its powers over this subject of transpor- ™^'^*^®" tation, under the clause of the Constitution of the United States which declares that Congress shall have the right to regulate commerce with foreign nations, with the Indian tribes, and amono; the several States.^ State leo-islatures are constantly enacting laws for the promotion of their purposes, for the raising of money, or for the protection of what they consider their individual rights, which are supposed to be in conflict with this right of Congress to regulate commerce among the States ; and the Supreme Court of the United States has been flooded in recent years with questions concerning the power of the States to pass laws regarding tax- 1 Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. Constitution, Art. 1, sec. 8, par. 3. See "an act to regulate commerce," generally known as the Interstate Commerce Act, approved February 4, 1887, 24 Stat. 379, c. 104. 114 LECTURES ON CONSTITUTIONAL LAW. lectukk II. ation, and other matters supposed to infringe merer'' ''*°'' upon the rights of individuals as citizens of the Federal Government.^ The Tiiirtoenth, By the receiit amendments to the Constitu- Fourtoenth, and ^- adopted siuce the War of the Rebellion Fifteenth Amend- . ments. ended/ new questions of constitutional law, in- volving the relations sustained by the Federal Government to the States and their people, have been raised, and are constantly arising, which require attentive consideration. A mass of people, several millions in number, who were not theretofore citizens of the United States, have been made such by those amendments. That class of people who were declared by the Dred Scott decision,^ in 1856, to have no rights 1 The cases on this subject are so numerous that attention need now only be directed to several of the most recent, in which the previous decisions and history of the matter are referred to. Interstate commerce cannot be taxed at all by a State. Bobbins V. Shelby County Taxing District, 120 U. S. 489. A prosecution of a citizen and resident of New York for selling by sample in the State of Maryland without a license held to be constitutional under the commerce clause of the Federal Constitu- tion. Coison V. Maryland, 120 U. S. 502. A State statute, which levies a tax upon the gross receipts of railroads for the carriage of freight and passengers into, out of, or through the State, is a tax upon commerce among the States, and therefore void. Fartjo v. Michigan, 121 U. S. 230. See also very full reference to previous cases and authorities in Wabash, St. Louis & Pacific Raihoay Co. v. Illinois, 118 U. S. 557. Mr. Garfield said in the House of Representatives : " Chief Jus- tice Marshall, tliat great judge who found the Constitution paper, and made it a power, who found it a skeleton, and clothed it with flesh and blood. By his wisdom and genius, he made it the potent and beneficent instrument for the government of a great nation." Record, 46 Congress, p. 2390. 2 Amendments XIII, XIV, and XV. 3 Dred Scott v. Sandford, 19 How. 393. PRINCIPLES OF ITS CONSTRUCTION. H", which a white man was bound to respect, have lecture h. come to have all the learal or civil rights which ^ ''" 'i"J''rteentii, ° • Fourteenth, and a white man has. Fifteenth Aiueud- Attorneys and courts are frequently called ™^°''*' upon to construe the Constitution of the United States, and the laws passed in pursuance thereof, as well as to determine questions of the con- flict of State constitutions and laws therewith. Any lawyer may at any time be called upon to advise about all of these questions which have been so briefly suggested, and to put in operation the machinery of the law of the Federal Govern- ment for the protection of the rights of his client. No branch of the law is of more impor- tance to the counsellor, the statesman, or the citizen, than a thorough acquaintance with the Constitution and laws of the Federal Govern- ment, as they are administered, and as they affect the rights of the people. In this connection may be appropriately cited the words of Chancellor Kent, one of the most able and accomplished writers upon legal topics that this country ever produced, which, deliv- ered a half century ago, derive added force from the great historical events which have occurred since he passed away. " The Government of the United States was erected by the free voice and joint will of the people of America for their common defence and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their stability and protection on the consolida- 116 LECTURES ON CONSTITUTIONAL LAW. Lecture II. tioii of the Uiiion. It is clothed with the prm- i^Tirtertirand ^ipal attributes of political sovereignty, and it Fifteenth Amend- is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national great- " 1 ness. 1 1 Kent's Commentaries, 201. NOTES UPON LECTURE II. From the very beginning of the Government lecture ii. there have been two theories for the construction ^^^^^^, ^^",_j.^ ^^^^ of the Constitution. The thorough-going Fed- ones of construc- eralist on the one hand, insists that it must be construed with reference to the circumstances which made it necessary, and with a just concep- tion of the objects which its framers desired to accomplish by it. Hence he contends that the delegated powers are to be construed liberally, and that implied powers are to be assumed when necessary to fully carry delegated powers into effect. On the other hand, the strict States' rights man plants himself upon the Tenth Amendment, as the people's contemporaneous construction, and contends that the National Government is a government with delegated powers only, and that the Instrument of delega- tion should be construed strictly. If I understand the views of Justice Miller, Weight to be while his personal sympathies were undoubtedly ^^j,^"^^,"J "),"'* in the main with the Federalists, he belonged to neither school. He was of the opinion that the powers of the Central Government are, in the end, practically to be settled by the judiciary ; and that judicial decisions upon constitutional questions are entitled to the respect which those 117 118 LECTURES ON CONSTITUTIONAL LAW. Lecture II. decisions receivG in questions of law. Although Weight to be J admits that the Executive must act accordint^ given to judicial _ _ '-' coustruction. to its owu light wlicii new questions arise, he inclines to the view that, under the Constitution, the Supreme Court is the proper interpreter of that instrument ; and that its interpretation, especially when repeatedly given, ought to have controlling weight. It may be objected to this theory that the judiciary has been at different times, on both sides of many questions of constitutional law ; as for instance on the constitutional limits of admiralty jurisdiction, and on the constitution- ality of the Legal Tender Act. Nevertheless it must be true that a power of authoritative inter- pretation is lodged somewhere. We have seen in the outcome of the doctrine first announced in the Dartmouth College Case,^ how a theory of construction, novel when propounded, may, as time rolls on, commend itself and be univer- sally accepted. Judicial interpretation can be- come necessary or possible only when private interests are in litigation ; but when the same question often recurs, and is as often decided in the same way, an accepted rule of construction comes at last into force. It is in the courts alone that opportunity is given for such repeated consideration and reconsideration of a constitu- tional question ; and hence their decisions should have persuasive weight. Prior to the adoption of the Constitution, 1 4 Wheat. 518. NOTES UPON LECTURE II. 119 there being no Federal judicicary (with the ex- lecture ii. ception of the Prize Courts), Congress itself set ^I,t".o'j,u,iciai the limit to its own powers by its executive and construction, legislative acts. In the Note to Chapter I, tak- ing as a starting-point the fact that the Constitu- tion was the historic outcome of various efforts at nationality during preceding years, an attempt was made to learn from history what construc- tion Congress at that time put upon its own pow- ers. We saw it forced by necessity to assume functions of sovereignty which had dropped from the hands of the king of Great Britain, and to exercise them repeatedly and without question prior to the adoption of any Articles regulating the relations between it and the individual States. We saw Congress, after the adoption of those Articles, receive the cession of an empire, and determine the character of its civilization, with- out having received in the Articles authority to do so. These exercises of sovereign power, grow- ing out of the necessities of the people of the whole United States, were unquestioned when made, and have not been doubted since. The most extreme Federalist must admit, however, that such a rule of construction is loose and dangerous, and that it should be resorted to only in case of necessity. The Constitution gave to the people a judi- ciary to protect it against an abuse of its powers by either co-ordinate branch of the Gov- ernment, on the one hand ; and, on the other hand, to recognize as just and constitutional an exercise of power assailed as unconstitutional. 120 LECTURES ON CONSTITUTIONAL LAW. lkcture ii. Although the Supreme Court of the United Tven''to*°Jdidai States has become one of the recognized great constructiou. Jaw courts of the world, Avhose decisions on questions of law, civil and international, are everywhere regarded with the highest respect, it is not too much to say that its greatest and its most important work has been done in the set- tlement of disputed points of constitutional law. Persons not familiar with its reports have little conception of the amount of time, of labor, and of thought which has been expended upon this subject. Out of the mass of decisions, running through one hundred and forty volumes, I select four subjects as specially illustrating the fundamen- tal principle of construction which appears to have prevailed throughout the hundred years. The first of these cases related to the Appellate Prize Courts of the Revolution, and the judg- ment was rendered in the early part of the first quarter of the century. The second subject was the acquisition of Louisiana, which was sus- tained judicially in the second quarter. The third relates to admiralty jurisdiction, which was extended by the legislature, and the exten- sion judicially sustained, in the third quarter. The fourth is the legislation making the prom- ises of the United States a legal tender, which was finally sustained by the Supreme Court near the close of the fourth quarter of the century. NOTES UPON LECTURE II. 121 1. The Judgments of the Appellate Prize Courts. The validity of these judgments came before lecture ii. the court at the February Term, 1795,' on the *:;Z:'^J:„<,„ following facts. In April, 1776, Congress agreed tiie jndKmenteof P f. . . IP the Prize Courts upon a lorm oi commission to commanders oi ^f the coufedera- private vessels of war, and such a commission was t^on. issued to Joshua Stackpole of New Hampshire, as commander of the McClary. In October, 1777, while in command of that vessel, he cap- tured the brigantine Susanna on the high seas, and carried her into the port of Portsmouth for condemnation as lawful prize. The legislature of New Hampshire had, on the 3d of July, 1776, created a Prize Court, with a right of appeal to the Continental Congress when the capture was made by an " armed vessel fitted out at the charge of the United Colonies," and in other cases to the Superior Court of the State. Con- gress had, as we have already seen, taken ap- pellate jurisdiction in many such cases before the date of the capture. The Susanna and her cargo were libelled in the Maritime Court of New Hampshire, and condemned as lawful prize and ordered to be sold. An appeal to Congress was claimed from this decree and was refused. The claimants then took an appeal to the Superior Court of New Hampshire, which was granted, and the judgment below was affirmed there. The claim- ants took an appeal to Congress from this judgment, which was not allowed ; but they 1 Fenhallow v. Doane, 3 Dall. 54. 122 LECTURES ON CONSTITUTIONAL LAW. leoturk II. nevertheless lodged their petition there in Octo- s;;prreCWonber, 1778, within the prescribed time, asking the judgments of Congress to hear the appeal. Congress decided, tlie Prize Courts ™, ,. . , , i • • t i- -i j-l of the confedera- ^iter discussion, to take jurisdiction ; and, alter ^io'i- hearing the parties, reversed the judgment of the court below in September, 1783. After the organization of the Federal judiciary under the Constitution, tlie representatives of these appellants instituted proceedings in admi- ralty in the District Court of the United States in New Hampshire to enforce the judgment of the Appellate Court, citing in the owners of the McClary; and, as the result of the pro- ceedings, the libellants obtained a judgment for upwards of $38,000. This was the case brought for review to the Supreme Court by writ of error. It is plain that it involved the question of the jurisdiction of the Court of Appeals over the ap- peal in October, 1778, when the petition of the appellant was presented. Judgment was an- nounced January 24, 1795, the judges delivering their opinions seriatim. The court consisted of Mr. Jay, Chief Justice (who was absent) ; Mr. Cushing of Massachusetts ; Mr. Wilson of Penn- sylvania ; Mr. Blair of Virginia ; Mr. Iredell of North Carolina ; and Mr. Paterson of New Jer- sey. Mr. Paterson, Mr. Blair, and Mr. Wilson were members of the convention which framed the Constitution. Mr. Justice Paterson, speaking first, divided the question of the jurisdiction of the Appellate Prize C9urt into two branches ; (1) acts done before the adoption of the Articles of Confeder- ation in 1781 ; (2) acts done after that time. NOTES UPON LECTURE II. 123 In respect of the first he said : "The powers lkcture ii. e r^ 1 ,• • ^ ii. • J. Action of the of Congress were revokitionary in their nature, s„prer,.eConrton arising out of events, adequate to every national f'e jiKigments of , . . •,! ii 1 • i J the Prize Courts emergency, and co-extensive with the object to „f ^^g confedera- be attained. Congress was the general, supreme, ^'o"- and controlling council of the nation, the centre of union, the centre of force, and the sun of the political system. To determine what their powers were, we must inquire what powers they exercised. Congress raised armies, fitted out a navy, and prescribed rules for their government ; Congress conducted all military operations, both by land and sea; Congress emitted bills of credit, received and sent ambassadors, and made trea- ties ; Congress commissioned privateers to cruise against the enemy, directed what vessels should be liable to capture, and prescribed rules for the distribution of prizes. These high acts of sover- eignty were submitted to, acquiesced in, and approved of by the people of America. . . . There was but one war, and one sovereign will to conduct it. The danger being imminent and common, it became necessary for the people or Colonies to coalesce and act in concert in order to divert or break the violence of the gathering storm ; they accordingly grew into union, and formed one great political body, of which Con- gress was the directing principle and soul." On the second point he said : " The Court of Appeals, in September, 1783, decided upon the point of jurisdiction, either directly or inciden- tally ; for, after a full hearing, they decreed that the sentences passed by the superior and mferior 124 LECTURES ON CONSTITUTIONAL LAW. lkcture it. courts of New Hampsliire should be reversed Action of tii«. ^^^^ annulled, and the property be restored. This Supreme Court on -" i i ^ the jiuignients of decree, being made by a court constitutionally ofUiJ^confederL established, of competent authority and the high- tioQ- est jurisdiction, is conclusive and final." Mr. Justice Iredell said : " When acts were passed by the Parliament of Great Britain, which were thought unconstitutional and unjust, and when every hope of redress by separate applications appeared desperate, there was con- ceived the noble idea, which laid the foundation of the present independence and happiness of this country, (though independence was not then in contemplation,) of forming a common council to consult for the common welfare of the whole, so far as an opposition to the meas- ures of Great Britain was concerned. . . . Each province appointed as many or as few deputies as it pleased, at its own discretion, which was not objected to, because the members of Congress did not vote individually, but the vote^ given in Congress were by provinces, as they afterwards were, (subsequent to the Declaration of Indepen- dence, and until the present Constitution of the United States was formed,) by States. The powers of Congress, at first, were indeed little more than advisory ; but, in proportion as the danger increased, their powers were gradually enlarged, either by express grant, or by implica- tion arising from a kind of indefinite authority, suited to the unknown exigencies that might arise. That an undefined authority is danger- ous, and ought to be intrusted as cautiously as NOTES UPON LECTURE II. 125 possible, every man must admit ; and none could lecture ii. take more pains than Cono-ress for a lono; time ^*^'^'"" °^ *^® i o o Supreme Court on did, to get their authority regularly defined by the judgments of a ratification of the Articles of Confederation, ofuie couiedera- But that, previously thereto, they did exercise, tio°- with the acquiescence of the States, high powers of what I may, perhaps, with propriety, for dis- tinction call external sovereignty is unques- tionable. . . . Whether among these powers comprehended within their general authority, was that of instituting courts for the trial of all prize causes, was a great and awful question ; a question that demanded deep consideration, and not perhaps susceptible of an easy decision. That in point of prudence and propriety, it was a power most fit for Congress to exercise, I have no doubt. I think all prize causes whatso- ever ought to belong to the national sovereignty. . . . This is a consideration of no small weight to induce an inference that they actually pos- sessed it when their powers were so indefinite, and when it seems to have been the sense of all the States that Congress should possess all the incidents to external sovereignty." Mr. Justice Blair said : " The immediate ques- tion is, whether Congress had a right to exercise, by themselves, by their committees, or by any reg- ular court of appeals by them erected, an appellate jurisdiction, to affirm or reverse a sentence of a State court of admiralty, in a question whether prize or no prize. If they possessed such an authority, it must be derivative, and its source, either mediately or immediately, the will of the 126 LECTURES ON CONSTITUTIONAL LAW. Lecture ii. people. Usurpation can give no right. . . . suprlt Court ou They raised an army; they appointed a com- the judgments of mander-in-chief with other general and field of- of'tbe Confedera- ficcrs ; they modelled the army, disposed of the *^°°- troops, emitted bills of credit, pledged the con- federated Colonies for the redemption of them, and, in short, acted in all respects like a body completely armed with all the powers of war; and at all this I find not the least symptom of discontent among all the confederated States, or the whole people of America ; on the contrary, Congress were universally revered, and looked up to as our political fathers and the saviours of their country. ... I am therefore of opin- ion that those acts of New Hampshire which restrain the jurisdiction of Congress, being con- trary to the legitimate powers of Congress, can have no binding force ; and that, under the authority of Congress, an appeal will lay from the courts of admiralty of that State to the court of Commissioners of Appeals." Mr. Justice Cushing said : " I concur with the rest of the court, that the Court of Appeals, being a court under the Confederation of 1781 of all the States, and being a court for ' deter- mining finally appeals in all cases of capture,' and so being the highest court, the dernier resort of all such cases, their decision upon the juris- diction and upon the merits of the cause, having heard the parties by their counsel, must be final and conclusive. ... As to the original ques- tion of the powers of Congress respecting cap- tures ... I have no doubt of the sovereignty NOTES UPON LECTUKE II. 127 of the States, saving the powers delegated to lectoke ii. Congress, being such as were ^ proper and neces- s^p^eleCoLo,, sary ' to carry on, unitedly, the common defence tiie judgments of ■ 1 J.1 i 1 • 1 . 1 • the Pi'ize CourUi m the open war that was waged agamst this ^f the coufedera- country, and in support of their liberties, to the *^""- end of the contest." As we have already seen,^ this unanimous ruling, although the different judges reached their conclusions by different methods of reason- ing, was followed by the court fourteen years later, Mr. Chief Justice Marshall giving the opinion.^ Thus it was determined, as an historic fact, that in 1779 Congress had the power to create a Prize Court with jurisdiction over judgments of State courts, even in violation of the laws of a State, provided the subject of the judgment was national in character; and that rights of property acquired under this legislation were to be upheld by courts of the United States exist- ing under the Constitution, and to be protected by its civil authorities. The court practically adopted the language of the Resolutions of Con- gress passed in 1779, at a time when no power had been conferred upon it by a written instru- ment, that " Congress or such person or persons as they appoint " " have iiecessarily the power " to exercise full appellate jurisdiction in such cases, and that " no act of any one State can or ought to destroy " it. Here was first announced. 1 See ante., p. 46. 2 United States v. Peters, 5 Cranch, 115. 128 LECTURES ON CONSTITUTIONAL LAW. Lecture il and in tliG most concrete form, that doctrine of sirreme^court on ii^^pli^d powers, wliicli luis had so great irilluence the judgments of in shaping the destinies of the United States. the Prize Courts of the Confedera- *'*"*• 2. The Acquisition of Louisiana. Acquisition of Mr. Jefferson, under whom the acquisition Louisiana. ^^^^ made, held views on its constitutionaUty which are well known. He said : " This treaty must, of course, be laid before both Houses, be- cause they have important functions to exercise respecting it. They, I presume, will see their duty to their country in ratifying and paying for it, so as to secure a good which would other- wise probably be never again in their power. But I suppose they must then appeal to tlie na- tion for an additional article to the Constitu- tion, approving and confirming an act which the nation had not previously authorized. The Con- stitution has made no provision for our holding foreign territory, still less for incorporating for- eign nations into our Union. The Executive, in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution."^ On the 30th of the same month he wrote to Mr. Lincoln, the Attorney General, who had given an opinion favorable to the constitution- ality of the measure, that " the less that is said about any constitutional difficulty the better. Congress should do what is necessary in silence. 1 Jefferson to Breckenridge, August 12, 1803. 4 Jefferson's Works, 500. NOTES UPON LECTURE II. 129 I find but one opinion as to the necessity of lecture ii. shutting up the country for some time." ' tl^^^ °^ Mr. Gallatin, however, who was the Secretary of the Treasury at that time, was of a different opinion. He said : " Does any constitutional objection really exist? ... To me it would appear, (1) that the United States, as a nation, have an inherent right to acquire territory ; (2) that whenever that acquisition is by treaty, the same constituted authorities, in whom the treaty- making power is vested, have a constitutional right to sanction the acquisition."^ The average view of the Federalists is prob- ably expressed by Josiah Quincy, then a member of Congress : " The clause in the Constitution giving the power to Congress to admit into the Union other States, had unquestionably sole ref- erence to the admission of States within the limits of the original territory of the United States. No original document, argument, or treatise, at the time of the formation of the Constitution, can be adduced to give color to the opinion that it was intended to extend to territories then belonging to foreign powers, be- yond the limits of the original thirteen States. Mr. Jeiferson himself was so convinced of this fact, that he declared, previous to the purchase of Louisiana, that it could not be done, except by receiving the sanction of the several States, without a violation of the Constitution. . . . 1 4 Jefferson's Works, 505. ^ Gallatin to Jefferson, January 13, 1803. 1 Gallatin's Works, 112. 130 LECTURES ON CONSTITUTIONAL LAW. ),K«:ruRK II. " Notwithstanding the perfect conviction of his Acquisition of ^^^ mind on this point, as he unequivocally Louisiana. ^ ^ . "^ declared (a fact well known at that time and subsequently publicly demonstrated), he yielded to the solicitations and influence of his parti- sans, silenced his conscientious scruples, and, holding in his hand the omnipotence of the pres- ent party power, consented to give his sanction to the violation of the Constitution by admit- ting Louisiana into the Union, without receiv- ing or asking the consent of the several States." ^ Congress adopted Mr. Gallatin's theory of construction rather than that of Mr. Jefferson and Mr. Quincy. On the 31st October, 1803,^ it authorized the President to take possession of the ceded territory, and extended the laws of the United States over it ; on the 20th February, 1811,^ it passed an enabling act, under which Louisiana was, on the 8th April, 1812, admitted into the Union.* This treaty, and these laws, and individual rights created under them, have been recognized by the Supreme Court.^ In thus construing the Constitution, the states- men of 1802 only followed in the footsteps of the statesmen of 1787, ^vho accepted the cession 1 Life of Josiah Quincy, 91. 2 2 Stat. 245. a 2 Stat. 041. * 2 Stat. 701. ^ Mahew v. Thatcher, Wheat. 120 ;, Soulard v. United, States, 4 Pet. 511 ; Livingston v. Stm-y, 9 Pet. 6.32 ; Livingston v. Story, 11 Pet. 351 ; Story v. Livingston, 13 Pet. 359 ; United States v. D'Auterive, 10 How. 009 ; Mnntault v. United States, 12 How. 47 ; United States v. Rilllenx, 14 How. 189 ; United States v. King, 7 How. 833; United States v. Tnrner, 11 How. 003; Mackey v. United States, 10 Pet. 340 ; Pollard v. Files, 2 How. 591 ; Foster V. Neilson, 2 Pet. 253. NOTES UPON LECTURE II. 131 of the Northwest Territory. The question and i.kctukk ii. the doubt with Louisiana ^i^rew out of the silence f '''i"'."'*'"" «' ^ Louisiana. of the Constitution ; but the Articles of Con- federation were equally silent. Nor could the fact that, in the one case, the cession was made by mdividual States of the Union, and, in the other, by a Foreign Power, affect the nature of the constitutional question. In the one case Congress, and in the other the Executive, as- sumed that the power of such acquisition was impliedly given to a sovereign, though not in terms delegated ; and in each case the action has been approved by the people and sustained by the courts. The acquisition of Florida^ followed that of Louisiana. Texas came next, but by a different process. It was admitted as a State while still foreign territory.^ The cession of California ^ by treaty, and then of Alaska * followed. Mean- while a treaty of the United States gave to Great Britain^ a tract of territory claimed by the State of Maine ; and another treaty gave to the same power ^ a large tract claimed by the United States in the Northwest and on the shores of the Pacific. In American Insurance Co. v. Canter^ Chief Justice Marshall, delivering the opinion of the — — — # 1 Treaty of Februarj^ 22, 1819, with Spain. 8 Stat. 252. 2 5 Stat. 797. 8 Treaty with Mexico, February 2, 1848. 9 Stat. 922. * Treaty with Russia, March m, 1867. 15 Stat. 539. 6 Treaty with Great Britain, August 9, 1812. 8 Stat. 572. 6 Treaty with Great Britain, June 15, 1846. 9 Stat. 869. 7 1 Pet. 511, 542. 132 LECTURES ON CONSTITUTIONAL LAW. LeC TUKE II. Acquisition of Louisiana. court, said : " The Constitution confers absolutely on the Government of the Union, the powers of making war and of making treaties ; conse- quently that Government possesses the power of acquiring territory, either by conquest or by treaty. The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occu- pation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded ter- ritory becomes a part of the nation to which it is annexed. . . . The same act which transfers their country, transfers the allegiance of those who remain in it." Admiralty juris- diction over in- terior waters. 3. Extension of the Admiralty Jurisdiction of the Courts of the United States. The second section of the Third Article of the Constitution provides that the judicial power shall extend " to all cases of admiralty and mari- time jurisdiction." The Supreme Court has held that this lan- guage referred to the general system of mari- time law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted.^ In an early case, admiralty juris- diction was invoked in Kentucky, to enforce a claim of a hand for wages earned on a steam- boat running from a port in Kentucky up the river Missouri ; but the court said : '' In the ^ The Lottawanna, 21 Wall. 558. NOTES UPON LECTURE II. 133 great struggles between the courts of the com- lecturk it. mon hiw and the admiralty, the latter never t''"'"""^' '"•''■'■ J ' diction over in- attempted to assert any jurisdiction except over terior wuters. maritime contracts ; . . . nor could it rightfully exercise any jurisdiction, except in cases where the service was substantially performed, or to be performed, upon the sea, or u^^on waters within the ebb and flow of the tide.^ This was affirmed and reasserted by the court.^ And it can hardly admit of a doubt that the framers of the Con- stitution by the term ' admiralty,' understood admiralty as its jurisdiction was defined by Eng- lish law ; and that the adjective ' maritime ' related to tidal waters." As the commerce of the lakes and internal rivers expanded, it was found that the admiralty and maritime jurisdiction as thus settled and defined, did not meet the necessities of the country. Congress accordingly, on the 26th of February, 1845, passed an act " extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters con- necting the same."^ The court, at December Term, 1851, held this statute to be within the constitutional power of Congress."* It said, among other things : " The only objection made to this jurisdiction is that there is no tide in the lakes or the waters connecting them ; and it is said that the admiralty and maritime jurisdic- 1 The Thnmns Jefferson, 10 Wheat. 428. 2 American Ins. Co. v. Canter, 1 Pet. 511 ; The Orleans, 11 Pet. 175 ; United States v. Coombs, 12 Pet. 72. 3 5 Stat. 726, c. 20. •* The Genesee Chief, 12 How. 443. 134 LECTURES ON CONSTITUTIONAL LAW. Lkcturk II. Admiralty juiij- dictioii ovHi- in- terior waters. tion as known and understood in England and this country at the time the Constitution was adopted, was confined to the ebb and flow of the tide. ... In England, undoubtedly, the writers upon the subject, and the decisions in its courts of admiralty, always speak of the jurisdiction as confined to tide water. ... At the time the Constitution of the United States was adopted, and our courts of admiralty went into operation, the definition which had been adopted in Eng- land was equally proper here. In the old thir- teen States, the far greater part of the navigable waters are tide waters. ... It is evident that a definition that would at this day limit public rivers in this country to tide-water rivers is utterly inadmissible. . . . The lakes and the waters connecting them are undoubtedly public waters, and we think are within the grant of admiralty and maritime jurisdiction in the Con- stitution of the United States." Twenty-two years later the court, speaking of this, said that the court had " felt itself at lib- erty to recognize the admiralty jurisdiction as extending to localities and subjects which were prohibited to it in England, but which fairly belong to it on every ground of reason when applied to the peculiar circumstances of this country."^ The most extreme States' right theo- rist cannot doubt that this decision was in ac- cordance with the true interests — it is not too strong to say the absolute necessities — of the nation. 1 The Lottawanna, 21 Wall. 558. NOTES UPON LECTURE II. lo5 4. The Legal Tender Decisions. By the act of February 25, 1862, 12 Stat, lecturk ii. 345, c. 33 ; the joint resolution of January 17, deSLar^ 1863, 12 Stat. 822 ; and the act of March 3, 1863, 12 Stat. 709, c. 73, all passed during the civil war. Congress made provisions for issues of the notes of the United States, to be a legal tender, receivable in payment of private debts. It was further provided that these notes, as they should come into the treasury, might be reissued from time to time, and, if mutilated so as to be unfit for use, might be replaced by a new issue. At December Term, 1869, this provision was pronounced to be unconstitutional by a majority of the court.^ The opinion was delivered by Chief Justice Chase, Justices Nelson, Clifford, and Field concurring in the opinion and judgment, and Justice Grier concurring in the judgment. Jus- tice Miller delivered a dissenting opinion, in which Justices Swayne and Davis concurred. The majority did not doubt the power to issue notes which should become a currency in circu- lation : its doubt was " as to the power to declare a particular class of these notes to be a legal tender in payment of preexisting debts." On this point they said : " We confess ourselves unable to perceive any solid distinction between such an act and an act compelling all citizens to accept, in satisfaction of all contracts for money, half, or three-quarters, or any other proportion less than the whole, of the value actually due 1 Hepburn v. Grisioold, 8 Wall. 603. 136 LECTURES ON CONSTITUTIONAL LAW. Lecture II. Legal tender decisions. according to their terms. It is difficult to con- ceive what act would take private property with- out process of law if such an act would not. We are oljliged to conclude that an act making mere promises to pay dollars, a legal tender in payment of debts previously contracted, is not a means appropriate, j^hiiiily adapted, really calcu- lated to carry into effect any express power vested in Congress ; that such an act is incon- sistent with the spirit of the Constitution, and that it is prohibited by the Constitution." The dissenting opinion said : " The legal ten- der clauses of the statutes under consideration were placed emphatically, by those who enacted them, upon their necessity to the further bor- rowing of money and maintaining the army and navy. . . . The history of that gloomy time, not to be readily forgotten by the lover of his country, will forever remain, the full, clear, and ample vindication of the exercise of this power by Congress. . . . Undoubtedly it is a law im- pairing the obligation of contracts made before its passage ; but, while the Constitution forbids States to pass such laws, it does not forbid Con- gress." At December Term, 1870, the question came again before the court,^ when the decision in Heiiiburn v. Griswold was reversed. The opinion of the court, concurred in by Justices Swayne, Davis, and Miller, was delivered by Mr. Justice Strong. Mr. Justice Bradley delivered a concur- 1 Knox V. Lee, 12 Wall. 457. NOTES UPON LECTURE II. 137 ring opinion. Chief Justice Chase delivered a lectubb n Legal ten " decisious dissenting opinion in which Justice Nelson con- ^^^^ tender curred. Justice Clifford and Justice Field each delivered a dissenting opinion. The question was again before the court at December Term, 1883, when the decision in Knox V. Lee was reaffirmed, Justice Field being the only dissenting judge.^ By an act passed in 1875, "to provide for the resumption of specie payments,"^ Congress had directed that these notes as retired should be cancelled. By the act of May 31, 1878,^ it ter- minated such retirement, and directed the reissue of such notes when paid into the treasury. The court, in its opinion, delivered by Justice Gray, Justice Field only dissenting, said : " A consti- tution, establishing a frame of government, de- claring fundamental principles, and creating a national sovereignty, and intended to endure for ages and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract. The Consti- tution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national Legislature ; but it does not undertake, with the precision and detail of a code of laws, to enu- merate the subdivision of those powers, or to specify all the means by which they may be carried into execution. . . . The words 'to 1 Legal Tender Cases, 110 U. S. 421. 2 18 Stat. 296, c. 15. 8 20 Stat. 87, c. 146. 138 LECTURES ON CONSTITUTIONAL LAW. lkcturk II. borrow money/ as used in the Constitution, to Le-ai tender desiirnate a Dower vested in tlie National Gov- decisions. o i eminent, for the safety and welfare of the whole people, are not to receive that limited and re- stricted interpretation and meaning which they would have in a penal statute, or in an authority conferred, by law or by contract, upon trustees or agents for private purposes. . . . Congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments. The power, as incident to the power of borrow- ing money and issuing bills or notes of the Gov- ernment for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution of the United States. The governments of Europe, acting through the monarch or the leg- islature, according to the distribution of powers under their respective constitutions, had and have as sovereign a power of issuing paper money as of stamping coin." Although this carefully considered decision put at rest further judicial discussion of the question, it has not passed unquestioned by those who deny that the Constitution gives such a power to Congress. The opponents put their case on the ground that the question was directly NOTES UPON LECTURE II. l'6\i before the Convention and fully discussed there ; lecturk ii. and that the Convention, with full knowledcre 'r*'^.^' '""•*«' ' o decisions. of what it was doing, refused to grant the power to Congress. Consequently, they say, no such power can be implied. This contention is main- tained by Mr. Bancroft in a pamphlet entitled " A Plea for the Constitution," published in 1886, the latest original work of his long life. He sums up the historical argument thus : — " Madison, agreeing with the journal of the convention, records that the grant of power to emit bills of credit was refused by a majority of more than four to one. Eleven men took part in the discussion ; and every one of the eleven, w^hether he spoke for or against the grant of the power, Gouverneur Morris, Pierce Butler, James Madison, Nathaniel Gorham, George Mason, John F. Mercer, Oliver Ellsworth, Ed- mund Randolph, James Wilson, George Reed, and John Langdon, each and all, understood the vote to be a denial to the Legislature of the United States of the power to emit paper money. . . . The evidence is perfect ; no power to emit paper money was granted to the Legis- lature of the United States. " By refusing to the United States the power of issuing bills of credit, the victory over paper money was but half complete. The same James Wilson who, twelve days before, with Oliver Ellsworth had taken a chief part in refusing to the United States the power to emit paper money, and the same Roger Sherman who, in 1752, had put forth all his energy to break up 140 LECTURES ON CONSTITUTIONAL LAW. Lecture II. paper money in Connecticut, jointly took the Legal tender j j r^.j^^ f.^^^. j^.^£^ ^f ^j^^ Constitution had decisions. forbidden the States to emit bills of credit with- out the consent of the Legislature of the United States ; on the 28th of August they jointly offered this motion : ' No State shall coin money, nor emit Jjills of credit, nor make anything but gold and silver coin a tender in payment of debts,' making the prohibition absolute. Roger Sherman, animated by zeal for the welfare of the coming republic of countless millions, ex- claims in the debate : ^ This is the favorable crisis for crushing paper money.' His word was the will of the convention, and the States, by a majority of eight and a half against one and a half — that is, by more than five to one — forbade the State, under any circumstances, to emit bills of credit. This is the way in which our Constitution shut and barred the door against paper money, and crushed it. " Nothing is wanting to the perfect strength of the truth that the Constitution put an end to paper money in all the United States, and in all the several States." It is of little consequence, however, on which side the truth of this historical issue lies. The court of final resort has settled that this great power exists in Congress, not by special grant, but as a necessary adjunct of sovereignty; just as the Congress of the Confederation, and the Supreme Court held as to Prize Courts. This has been done after a fluctuation of opinion, running through a series of years. If judicial NOTES UPON LECTURE II. 141 determination of a question, over which the lecture ii. Lefjal teni decisions. court has jurisdiction, is to have any weight, ^"^^''^^ **°*^^'^ the point must be regarded as settled. Those who are opposed to the issue of such paper must endeavor to convert Congress to their way of thinking. The Supreme Court has often had occasion to impUed powers, consider the subject of these implied powers. Its decisions, as a whole, are substantially in harmony with each other. In the opinion of Chief Justice Marshall in McCidloch v. Mary- land, it is said : — " This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments, which its enlightened friends, while it was depending be- fore the people, found it necessary to urge ; that principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist. In discussing these questions, the conflicting powers of the General and State gov- ernments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. " If any one proposition could command the universal assent of mankind, we might expect it would be this, that the Government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, 142 LECTURES ON CONSTITUTIONAL LAW. lectdrk II. necessarily, from its nature. It is the govern- mpie powers. ^^^^^ ^£ ^|| . '^.g powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those sul)jects on which it can act, must necessarily bind its component parts." " We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that dis- cretion, with respect to the means by which the powers it confers are to be carried into execu- tion, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legiti- mate, let it be within the scope of the Constitu- tion, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." ^ In Hejjburn v. Griswold, Chief Justice Chase, referring to these words of Chief Justice Mar- shall, said : " The rule for determining whether a legislative enactment can be supported as an exercise of an implied power, was stated by Chief Justice Marshall, speaking for the whole court in the case of McCuIIoch v. The State of Maryland, and the statement then made has ever since been accepted as a correct exposition 1 McCuUoch V. Maryland, 4 Wheat. 316, 405, 421. notp:s upon lecture ii. 14r> of the Constitution. His words were these : lkptdre n. ' Let the end be legitimate, let it be within the "'^^ '^' p*'^^"* scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.' And, in another part of the same opinion, the practical application of this rule was thus illustrated. ' Should Con- gress, in the execution of its powers, adopt measures which are prohibited by the Con- stitution, or should Congress, under the pretext of executing its powers, pass laws for the accom- . plishment of objects not intrusted to the Gov- ernment, it would be the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the laAv is not prohibited, and is truly calculated to effect any of the objects intrusted to the Government, to undertake here to inquire the degree of its neces- sity, would be to pass the line which circum- scribes the judicial department, and tread on legislative ground.' " It must bo taken, then, as finally settled, so far as judicial decisions can settle anything, that the words, ' all laws necessary and proper for carrying into execution,' powers expressly granted, or vested, have, in the Constitution, a sense equivalent to that of the words, laws, not absolutely necessary, indeed, but appropriate, plainly adapted to constitutional and legitimate ends ; laws not prohibited, but consistent with 144 LECTUKES ON CONSTITUTIONAL LAW. Lecture II. the letter and spirit of the Constitution ; laws mp le powers. j.g^j|y calculated to effect objects intrusted to the Government." ^ H^burn v. Griswold, 8 Wall. 603, 614, 615. III. THE EXECUTIVE BRANCH OF THE GOVERNMENT.^ Constitution, Article II, Section 1. The execu- Lecture III. tive 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 : Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Repre- sentatives to which the State may be entitled in the Congress : but no Senator or Representative, or Per- son holding an Office of Trust or Profit under the United States, shall be appointed an Elector. 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-Presi- dent, and they shall make distinct lists of all per- sons 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 presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted ; — 1 This is Lecture II of the Lectures delivered before the classes of the University Law School. 145 146 LECTUKES ON CONSTITUTIONAL LAW. Lecture III. 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 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 innnediately, by ballot, the I'rcsident. But in choosing the Presi- dent, the votes shall be taken by states, the representa- tion 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 President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be tlie Vice-Presi- dent, 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-I'resident ; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States, i The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes ; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citi- zen of the United States, at the time of the Adoption of this Constitution, 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. In Case of the Removal of the President from 1 This paragraph contains the text of the Twelfth Amendment, which was a substitution for the original clause in the Constitution, and came into force in 1804. EXECUTIVE BRANCH OF THE GOVERNMENT. 14! Office, or of his Death, Resij^nation, or Inability to Lectoee IIL discharge the Powers and Duties, of the said Otlice, the same shall devolve on the Vice-President, and the Congress may by Law provide for the Case of Re- moval, Death, Resignation, or Inability, both of the President and Vice-President, declaring what Officer shall then act as President and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services a Compensation, which sliall neither be encreased nor diminished during the Period for which Le shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation ; — " I do solemnly swear (or affirm) that I will faith- " fully 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. 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 Sub- ject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. 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; and he shall nominate, and by and with the Advice and Con- sent 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 pro- vided for, and which shall be established by Law : but the Congress may by Law vest 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. The President shall have Power to fill up all Vacancies that may happen during the Recess of the ^ 148 LECTURES ON CONSTITUTIONAL LAW. Lecture III. Senate, by granting Commissions which shall expire at the End of tlieir next Session. Section 3. lie sliall 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 exi^edient ; he may, on extraordinary Occasions, 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 pub- lic Ministers ; he shall take Care that the Laws be faithfully executed, and shall Conuuission all the offi- cers of the United States. Section 4. 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 Misde- meanors. The Execntive. You are all familiar witli the main principle of all written constitutions in the American form of government, that the powers of govern- ment are reposed in three distinct and separate bodies of magistracy. These are, the legislative or law making power, the executive or law en- forcing power, and the judiciary, which construes the laws and administers the rights of citizens as among themselves, and as they relate to con- tests with the Government. For the subject matter of the present lecture I have selected that part of the Constitution of the United States which is devoted to the executive branch. This is found in Article Two of that instrument. The first and second para- graphs of the first section are as follows : "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 EXECUTIVE BRANCH OF THE GOVERNMENT. 149 years, and, together with the Vice-President, Lecture hi. chosen for the same term, be elected as follows ; ^ xecutive. " "1. Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal to the whole number of Sen- ators and Representatives, to which the State may be entitled in the Congress : but no Senator or Representative, or ^oerson holding an office of trust or profit, under the United States, shall be appointed an Elector." In 1804 the Twelfth Amendment, the text of which will be found at the head of this lecture, was adopted, and substituted in the place of the third paragraph of Article II. The manner of electing^ the President of the United States was a subject of very grave con- sideration in the Convention which framed the Constitution, and several propositions which had apparently at one time the sanction of a majority of that body were changed and modified before the final adoption of the rule here stated. As originally adopted, and as it now exists, it was supposed that the body of electors interposed be- tween the State legislatures and the presidential office would exercise a reasonable independence and fair judgment in the selection of the chief Executive of the National Government, and that thus the evil of a President selected by immedi- ate popular suffrage on the one side, and the opposite evil of an election by the direct vote of the States in their legislative bodies on the other, would both be avoided. A very short experience, however, demonstrated that these 150 LECTUKES ON CONSTITUTIONAL LAW. lectukk III. electors, whether chosen by the legislatures of The Executive. .i Cj. j. xi • • n i, it. the fetates, as they were originally, or by the popular suffrage of each State, as they have come to be now, or by limited districts in each State, as was at one time the prevailing system, are always but the puppets selected under a moral restraint to vote for some particular per- son who represented the preferences of the ap- pointing power, whether that was the legislature, or the more popular suffrage by which the legis- lature itself was elected. So that it has come to pass that this curious machinery is only a mode of casting the vote, to which a State is entitled in the election of President, in favor of that candidate who is the favorite of the ma- jority of the people, entitled to vote for the more popular branch of the State legislature in each State. This system has given rise on more than one occasion to serious difficulties in ascertaining who has been really elected President, and seems, if it ever had any useful purpose, to have long become an obstruction and a stumbling- block in the way of some sounder and wiser system. A change has often been talked of and canvassed in Congress and in the public journals, but the difficulty of agreeing on any other system, which Congress may present as an amendment to the Constitution, has thus far led to the failure of all attempts to make such change. I do not propose to take up any more of your time by a discussion of the manner of electing the President. EXECUTIVE BRANCH OF THE GOVERNMENT. 1-")1 The experience of nearly a liiindred years of i^kcture hi. government under this Constitution has pro- ''''« J--''<'-<^"tive. duced in the minds of many thinking men and able statesmen a belief that the term of four years prescribed for the office of President is too short. The great disturbance of public tranquil- lity produced by the recurring election of a President once in four ^^ears, the enormous pat- ronage which belongs to the presidential office, stinmlating all the activities, and many of the most evil passions, of the human heart, and the fact that this struggle, owing to the shortness of the period between one election and another, is always going on more or less by way of prep- aration for that event, leaving the public mind at no time open to that calmness which is nec- essary to a just consideration and appreciation of the measures of government jDolicy which ought to influence their votes, are strong argu- ments for this belief. As we shall see hereafter, it is the duty of the President to suggest to the legislative body and recommend for their con- sideration measures of public policy which must more or less affect the prosperity and happiness of the entire people. If he were assured, by the length of the period for which he would hold the office, of a sufficient time in which his meas- ures, if enacted, could be fairly judged on their merits, or his recommendations, whether enacted or not, could have the just estimation of the public sentiment, that independence and faith- ful expression of his convictions, which can only make such recommendations useful, would have 152 LECTURES ON CONSTITUTIONAL LAW. Lecture III. a fair support in these considerations ; while, if ihe Executive. |^^ |^^ desirous of a re-election, as has proved to be almost universal, or if having no desire for re-election he has that reasonable wish to retire with a favorable estimate of his conduct, which is natural to all men, he would be much influ- enced by these considerations to recommend that which was policy rather than tliat which was wise, and to frame his conduct in accordance with his view of what the public would say at the time, rather than what might be their esti- mate, after a long and calm consideration. In opposition to these views it has been urged that a President elected for a long period would, by the use of the patronage at his disposal, by the arts of the politician and the great influence which he would be enabled to exert over the popular voice by the exercise of power for a lengthened period, always be able to secure a re-election ; and it would be in the end equivalent to holding the office for life. Probably some period longer than four years and shorter than ten would be found to remove the principal objections to the present short term without incurring the dangers incident to a longer one.^ 1 It was at first proposed to make the term of office of the Executive seven years, and it so stood in the first draft of tlie Constitution. Tliis was, however, altered upon the report of a committee by a vote of ten States against one fixing the period at four years, which was finally adopted. It was also, at one time, proposed to fix the term of the Execu- tive during good beliavior, and this was supported by Madison, Jay, and Hamilton, among others, although the latter afterward changed his views somewhat. See 2 Story, Constitution, sec. H'M (4th ed.), 281 and note. EXECUTIVE BRANCH OF THE GOVERNMENT. 153 The qnalifications which make a person eligi- lecture hi. '\'lu', Execiitivf Quuliticatious. ble to the office of President are found in para- ""' ''^^^'^"t'^'^- graph four of the first section of this article, which reads as follows : — " No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligi- ble 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." In regard to this nothing more need be said on this occasion. In order to secure his freedom of action and independence of the legislative branch of the Government, paragraph six provides for his com- pensation or salary in the following language : " 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." This provision, in some respects similar to Salary. Jefferson, in 1813 wrote as follows: "I am for responsibilities at short periods, seeing neither reason nor safety in making public functionaries independent of the nation for life, or even for a long term of years. On this principle I prefer the Presidential term of four years, to that of seven years, which I myself had at first sug- gested, annexing to it, however, ineligibility forever after ; and I wish it were now annexed to the second quadrennial election of President." 6 Jefferson's Works, 213. 154 LECTURES ON CONSTITUTIONAL LAW. Lecture III. The Executive. Salary. Powers of the President. that in regard to the judges, is a wise one. They exempt the two other branches of the Govern- ment, the executive and the judicial, from an undue control by the legislative branch, which has the power of the administration of the finances of the Government, the appropriation of money to pay for its expenses, and the regula- tion of the salaries of all officers. It thus secures, so far as a fixed compensation can do it, the independence of these two other departments.^ In the second and third sections of this article we find the definition of the powers, duties, and obligations of the President of the United States. They read as follows : — " Section 2. The President shall be com- mander-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, 1 The difference between the provision, in this regard, to the President and that in regard to tlie judges of the United States courts is this • the salary of a judge cannot be diminished during the continuance of his office ; that of the President can be neither increased nor diminished during the period for which he shall have been elected. This provision is construed as applicable only to the term in which the law is enacted making the increase. On the 3d of March, 1873, Congress, by the Legislative, Executive, and Judicial Appropriation Act, passed that day, 17 Stat. 485, c. 220, provided for a general increase of salaries, including the salaries of the President and the Justices of the Supreme Court. President Grant approved the bill. His first term of office expired the next day, and he at once entered upon his second term. On the 20th of January, 1874, Congress repealed so much of this act " as provide for the increase of the compensation of public officers and employes, whether members of Congress, delegates, or others, except the President of the United States and the Justices of the Supreme Court." EXECUTIVE BRANCH OF THE GOVERNMENT. 1 ")5 in writing, of the principal officer in each of lecturk hi. The Executivt!. the executive departments, upon any subject i.,'werr place during that session of the Senate, or by the refusal of the Senate to give its assent to such nomination, the office is, at the end of that session, vacant ; and that an effort of the Presi- dent to keep in office the man of his choice by reappointment under such circumstances is, at least in spirit, a violation of the Constitution. The functions of the President and of the Sen- ate in relation to appointments to office are so clearly stated in the Constitution that it would not seem to be necessary that any question 1G2 LECTURES ON CONSTITUTIONAL LAW. Lecture III. The Executive. The tenure of office law. Commander-in- chief. should arise about it. The initiative is with tlie Pre.sident, the right to nominate and refer that nomination to the Senate is with him, and the Senate can have no right to dictate to him whom he shall nominate. Their right is one of approval or disapproval. When they have exer- cised that right, the President has as little au- thority to make other efforts to impose the same nominee upon the Senate, or to continue him in office, as that body would have to interfere with the President's choice among all eligible persons to such office. Hence any attempt, by giving the commission to the same person who had been rejected by the Senate, after the expiration of its session, or to renominate the same person to the Senate after its rejection during the same session, is equally opposed to the spirit, if not to the letter of the Constitution, and to the just right of either the President or the Senate to exercise the functions and powers which the Constitution confers upon either of them. The power of the President as commander-in- chief of the army and navy has in practice never been exercised by the President's taking imme- diate command of the army or the navy during the existence of actual hostilities ; so that, in that sense, no President has ever been commander-in- chief when the army immediately confronted an enemy. Such authority as the President has exercised under this constitutional provision has been almost exclusively through the Secretary of War and the Secretary of the Navy, offices created among others by an act of the first ses- EXECUTIVE BRANCH OF THE GOVERNMENT. 103 sion of the Congress, which distributed the exer- lectuue hi. cise of the executive functions amonf;^ several ^*"'^'^*^*^""''*'- , 1 1 1 I- 1 c Heads of dep.irt- departments, at the head oi each of which was mfnts. placed a minister, called usually a "Secretary." And so strong and prominent to the public eye has been the control of these secretaries in the oper- ations of the army and navy, in the few w\irs of an important character which we have had dur- ing the existence of the government, that the influence of the President in the actual move- ments of the army and navy has been hardly perceptible. Whether in case a war should occur during a period when the incumbent of the ex- ecutive office is a man who has had experience in the command of armies, and with a good military reputation, it would be judicious for him to place himself at the head of the army, or to conduct its campaigns, or to be present and directing in battle, or wdiether public senti- ment would tolerate such a course of action, is extremely doubtful. In the recent Civil War, which, if we look to the number of men engaged in it, or to the num- ber destroyed by it, or to the magnitude of the resources brought to bear in its prosecution on both sides, or to the destructive power of arma- ments and weapons, or the advanced skill of the military art, is perhaps the greatest war that history has to describe, the Secretary of War looms up as a figure whose importance as re- gards the successful issue of that w^ar is hardly exceeded, if it be equalled, by any person holding any office or command in the armies of the 1G4 LECTURES ON CONSTITUTIONAL LAW. Lecture HI. The Executive. Hjeads of depart- ments. Pardons, United States. Indeed, the name of Edwin M. Stanton, who, though a civilian and until the period of the war a private citizen, will go down to posterity as the great war minister of the greatest war in the world's history. In all this, however, the secretaries of the War Department, as also the heads of all the other departments, are but executive ministers and agents, discharging the functions of the ex- ecutive office, under the control and with the consent of the President. How far President Lincoln actually interposed his own will and his own judgment in the conduct of this war will perhaps never be fully known, though it is well understood that on many important occasions, and in great emergencies, he enforced his judg- ment in many ways ; mainly, however, in displac- ing commanders of large armies and appointing others, until success established his own confi- dence and the confidence of the public in a few great military leaders. One of the powers intrusted to the President by this second section is that of granting re- prieves and pardons for offences against the United States, except in cases of impeachment. This useful power could nowhere be more ap- propriately lodged than with the chief executive officer of the Government. It is one which does not affect the public generally, and by reason of the limited criminal jurisdiction of the Govern- ment of the United States does not call for much comment of a public character. It is derived from the history of our British ances- EXECUTIVE BRANCH OF THE GOVERNMENT. 105 tors ; and, in the absence of any more particular LKcrtjuK iii. definition of it than is found in this short J'"'. ''''''■"""^''- Pardons. sentence of the Constitution, so far as it has become the subject of public discussion or of judicial decision, reliance has been had mainly upon the nature and character of the power as exercised by the Crown of Great Britain. The power, therefore, in this general sense is almost unlimited ; is vested exclusively in the Presi- dent ; and is not subject to the interference of Congress.^ It has been officially decided that it may be exercised as well before the trial as after con- viction.^ It also includes the power to commute sentences.^ It may be granted upon conditions.* This grant of power carries with it the power to release from fines, penalties, and forfeitures which accrue from the offence.^ An act of Congress which attempted to destroy the effect of a pardon by the President of per- sons engaged in the rebellion, who were claim- ants in the courts of the United States, under the Captured and Abandoned Property Act, was held by the Supreme Court to be unconstitu- tional.^ The original act, which authorized per- 1 A pardon reaches both the punishment prescribed for the of- fence and the guilt of the offender ; and when the pardon is full it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. Ex parte Garland, 4 Wall. 333, 380. ' 2 6 Opinions Attorneys General, 20. ^ Ex parte WiUiani Wells, 18 How. 307. * United States v. Wilsnn, 7 Pet. 150, 161. 5 Osborn v. United States, 91 U. S. 474. « United States v. Klein, 13 Wall. 128. 1G6 LECTURES ON CONSTITUTIONAL LAW. lf.cture III. sons whose property had been seized as captured 'ihe Executive, ^^j abandoned durino; the war, and sold, and Pardons. ^ ^ ^ the proceeds paid into the treasury, to make a claim for it in the Court of Claims and recover the money, required that proof should be made that the claimant had been loyal to the Govern- ment during the war. The Supreme Court had in a case previous to this declared that the pardon of the President dispensed with the necessity of this proof of loyalty. To counteract the effect of this decision Congress, on the 12th of July, 1870,^ enacted that such proof of loyalty was necessary to the recovery in the Court of Claims, irrespective of the effect of any execu- tive proclamation, pardon, amnesty, or other act of condonation or oblivion. The Supreme Court held that this statute was designed to destroy the effect which the Constitution of the United States intended to give to a pardon by the Presi- dent, and thus infringed the constitutional power of the Executive, The court uses the following languao;e : — " Now it is clear that the Legislature cannot change the effect of such a pardon any more than the Executive can change a law. Yet this is attempted by the provision under considera- tion. The court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly 1 16 Stat. 235, c. 25L EXECUTIVE BRANCH OF THE GOVERNMENT. 1G7 impairs the executive authority and directs the lecturk hi. ♦ court to be instrumental to that end."^ The Kxecuiv... raruoiiH. The wisdom of exempting cases of impeach- ment from this pardoning power in the hands of the President will be very obvious when we come to consider that the main object of the impeachment is to remove the person from office ; and that this right of removal would exist in the President without the necessity of impeachment ; and that, in all cases, the officer impeached, ex- cept it be the President himself, is one who, if he belong to the executive branch of tlie govern- ment, is exercising power under the control of the President, and whom the President may for many reasons be willing to protect from punish- ment by his pardon. The power of the President to make treaties. Power to make in which the concurrence of two-thirds of the senators present when the treaty is voted on shall be necessary, is one which is essentially of an executive character, and which can only be w^isely executed under the control of the execu- tive head of the Government. The requirement of two-thirds of the Senate for the final ratifica- tion of such treaty made by the President, or his ministers, shows the jealousy of the influence of foreign nations in our domestic policy which was so prevalent at the time the Constitution was adopted. This was evidenced in other respects ; as in the forbidding of the acceptance of titles 1 1 United States v. Klein, 13 Wall. 128, 148. This general doctrine is subject to some limitations and restrictions. See Note at the end of this Lecture. 168 LECTUKES ON CONSTITUTIONAL LAW. Lecture III. of nobilitj by any officer of the Federal Govern- PoweTto mak^e i^^eiit, or of any presents. This jealousy, which treaties. at the time of the formation of the Constitution, in the weakness of our Government, seems justi- fiable, has perhaps long passed away since the Government has grown so wealthy and powerful, and its offices so valuable ; and it is impossible to conceive now of an officer of the Government being in any way bribed or influenced by consid- erations of honor or profit, coming from other nations, to disregard the interests of his own Government by favoring the conflicting interests of any foreign government. A question of some interest has arisen in re- gard to the power of the President and the Sen- ate to make a treaty with a foreign nation which shall be, according to the declaration of the Con- stitution, the supreme law of the land, in cases to which, by other provisions of the Constitution, it would seem that the concurrence of the House of Representatives is essential to the making of a valid law. This question, which has occasion- ally vexed the legislative bodies of both Houses of Con2:ress from the beojinnino; of the Govern- ment, but in regard to which any serious diffi- culty has been averted by the wisdom and for- bearance of the House of Representatives, is too large to be entered upon on this occasion, and is perhaps too complex to justify your serious con- sideration of it at this time.^ Dutytocommuni- Xhc duty of the President under section three, cate information ,-,/-, -r. ,- £ ±r, c^t ^ £ to Congress. to give to Congrcss miormation oi the fetate oi 1 1 See Note at the end of this Lecture. EXECUTIVE BRANCH OF TUE GOVERNMENT. 169 the Union, and recommend to tlieir considera- lecture hi. tion such measures as he shall iudo-e necessary ''"' ^^^'■"^'^■•^- Jo J Uuty tocoiiirnuni- and expedient, is one of very great importance, cate information In the early history of the Government this duty ^^ o^s'^e^s. was generally performed by a personal interview between the Executive and the two Houses of Congress, assembled to listen to him; but since Mr. Jefferson's time, whose skill and facility in composition induced him to discharge this func- tion by written messages to Congress, this course has been invariably followed. Very few public events are looked to with more interest by the people at large, as well as all those engaged in the administration of the Government, than the annual message which the President sends to Congress at the beginning of each session. These messages are generally considered as defining the policy of the Executive in regard to the administration of public affairs falling within this branch of the Government, as also with regard to such legislation as he thinks the good of the country requires at the hands of Congress. These messages have had a varying degree of power in the influence which they have exerted upon the legislation of Congress. In years past the recommendations of the Presi- dent were held to represent the opinions of the political party by whom he was elected, and of which he was the recognized leader, and to have almost a controllina; influence over the members of that party in the two branches of the Legis- lature. So that, in those times, a recommenda- tion of the President in regard to a matter of 170 LECTURES ON CONSTITUTIONAL LAW. Lecture III. political policy, wlieii the two Houses of Con- nie Executive, ^^^gg \\(iYe ill accord with him in party politics, Duty to coiiiimini- o k j l 7 eate iiifoiiiiatiou was alniost Omnipotent. In more recent years ° ' the frecpient recurrence of the fact that a ma- jority of the Senate might be found on one side of such party divisions, and of the House of Rep- resentatives on the other, has tended very much to diminish the influence of such Presidential recommendations, as well as the constantly recurring fact that, in regard to such measures the President does not represent in all instances the entire or unanimous opinion of his own party, in which in one House or the other there may be divisions on such subjects. Power to call The powcr of the President to convene both extra sessions of t-t • .^ r ji j t Con<^ress. Houscs, or either oi tliem, on extraordinary occasions, has been rarely exercised, and cer- tainly has not been abused during the history of the Government. The principal exercise of this power has been in proclamations by which the President has called the Senate together at the close of a session of Congress, for the purpose of considering appointments to office, and some- times treaties. As to the general provisions that he shall take care that the laws be faithfully executed, any comment which would be useful would extend this lecture beyond the limit which necessity imposes. The only other provision of this Second Arti- cle of the Constitution to which I deem it nec- essary to call your attention, is found in section four, which declares : — EXECUTIVE BRANCH OF THE GOVERNMENT. 171 " The President, Vice-President, and all civil lecture mi. officers of the United States, shall be removed 'l''' '•••''-^"'7- ' Impeachment. from office, on impeaclnnent for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The general principles on which an impeach- ment of any officer of the Government may be conducted is prescribed by other provisions of the Constitution. The substance of them is that the House of Representatives, acting in the character of a grand inquest of the nation, may frame and prefer articles of impeachment, con- stituting the charges on which he shall be tried before the Senate. These articles are delivered to the Senate, which, by the other provisions of the Constitution, shall make arrangements for the trial. At the trial, by an exceptional pro- vision of the Constitution in recrard to the Pres- ident when he is impeached, the Chief Justice of the Supreme Court of the United States shall preside ; which is not required or permitted in the impeachment of any other officer of the Government. The conviction of the party tried in any such impeachment can only be declared by a vote of two-thirds of the senators, and judgment only extends to removal from office, and a disqualification of the person convicted from holding any other office of honor or profit under the Government of the United States. In the history of the Government under the Constitution, but a single effort to impeach a President has ever been made. The case of President Johnson, against whom the House 172 LECTURES ON CONSTITUTIONAL LAW. Lecture III, preferred articles of impeachment, was tried in impeachmenr 1^68, and tlic proseciitlon failed of conviction on any of the specifications charged against him. Whatever may have been the justice of the charges made against President Johnson, looking back as we now do with much of the asperity of the time at which it took place removed, it may safely be said that the failure to convict him was mainly to be attributed to the belief in the minds of many senators that the charges, if true, were not of a character for which impeach- ment is provided in the Constitution, and not from a want of belief in the truth of some of those charges. It may also be said that, in view of the invitation which a successful result in that effort to convict and remove him would have held out in future times to exasperated majorities in the legislative body, opposed to the President and his manner of exercising the functions with which he is charged by the Con- stitution, to get rid of a President against whom such personal hostility existed, the country is fortunate in the fact that the great impeachment failed. A certain degree of security in the sta- bility of his power for the short period for which he is elected is absolutely essential to the suc- cessful and conscientious discharge of executive duties by the President ; and the easy exercise of the power of impeachment and a frequent recur- rence to it might impress upon him, if the causes of impeachment were not of the profoundest gravity, a hesitation and a want of courage in the conscientious discharge of his duties which EXECUTIVE BRANCH OF THE GOVERNMENT. 173 would be in many cases disastrous to the public lecture iu. service. V''' '^-'■•''^"''^^- ImpcacbiiienU There remains to be considered a very im- veto power, portant duty imposed upon the President by the Constitution, by which in effect he becomes a part of the legislative power of the nation. This is to be found in paragraph two, of section seven of the first Article, and is commonly called the veto power. It reads as follows : — " Every bill, which shall have passed the House of Representatives 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 originated, who shall enter the ob- jections at large on their journal, and proceed to reconsider it. If, after such reconsideration, 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 determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House, respec- tively. If any bill shall not be returned by the President within ten days (Sunday's 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 Congress, by their adjourn- 174 LECTURES ON CONSTITUTIONAL LAW. Lecture III. iTient, prevent its return, in which case it shall The Executive. j.ot be a laW." ^ Veto power. Of the wisdom of this part of the Constitution, it is not my purpose to speak. Upon each oc- casion of its exercise the anger of those who have supported the measure which the President disapproves has been aroused, and ill-natured and inconsiderate remarks upon such occasions would lead to the belief that this provision is very generally disliked ; but after all, the infre- quency of its exercise, and the wisdom with which it has generally been done, has led to its approval by wise and considerate men not influ- enced by passion, and its tolerance by the public has grown with the increasing years of the ex- istence of the Government. In fact, there are those who are anxious for an amendment to the Constitution by which the President may be permitted to exercise this veto power, in regard to specific items or parts of a bill presented to him without being compelled to approve or reject the bill as a whole, while there are objectionable parts in it which could be separated and disapproved by hira.^ Such is the constitution of the State of New York in regard to the power of the governor ; and other States have recently adopted the same principle. It has been contended that the only proper occasion for the President to deny his approval by a message to Congress, refusing to sign a bill, is, when the bill is not in his judgment 1 See Note at the end of this Lecture. ^ i\) EXECUTIVE BRANCH OF THE GOVERNMENT. 175 within the constitutional power of the Legisla- lecture hi. ture In such case it has been tliought to he '{?"j:^^j^^''^"J^^ his duty to interpose his objection, and the doc- trine has been advanced with much earnestness, that on no other account is he justified in setting up his opposition to the more popular legislative branch of the Government. This view, however, has not been accepted in modern times, and Presidents within the last thirty or forty years have apparently exercised the veto power with as much freedom in regard to questions of mere expediency and wisdom of legislation, as of constitutional invalidity. Un- doubtedly there is a just medium on this subject, and it is probable that a sound view would be that the occasion which requires or justifies the President in returning without his approval a bill passed by both Houses of Congress, with his objections thereto, should be of a grave and seri- ous character, and the measure itself one of much public importance. There remains to the Presi- dent, in all cases, the alternative of declining to sign, and failing to veto a bill, and thus permit- ting it by the lapse of ten days, without any action on his part, to become a law of the land upon the sole responsibility of its passage by the Senate and House of Representatives. This has been done occasionally by Presidents, and it is rather curious that of the many bills presented to the Executive for his approval, of the pro- priety of which he must have serious doubts and in regard to which he might be unwilling to 176 LECTURES ON CONSTITUTIONAL LAW. LECTURE III. interpose this power reposed in him alone, he The Executive, j^^^g ^^ seldom rcsorted to the expedient of in- Veto power. ... . action, leaving the responsibility with the legis- lative branch proper of the Government. pointiiij power. NOTES UPON LECTURE III. 1. The Appointing Poioer. The difficulty in regard to appointments lkcture hi. which Judge Miller suggests, began in the very "^w" beginning of the new government. At an early day in his first term Washington Avrote to a friend who had solicited an office for another: " From the moment when the necessity had become more apparent, and, as it were, inevita- ble, I anticipated, with a heart full of distress, the ten thousand embarrassments, perplexities, and troubles, to which I must again be exposed in the evening of a life already nearly con- sumed in pul)lic cares. Among all these anxie- ties, I will not conceal from you, I anticipated none greater than those which were likely to be produced by applications for appointments to the different offices which would be created under the new government. Nor will I con- ceal that my apprehensions have already been but too well justified. Scarcely a day passes in which applications of one kind or another do not arise ; insouiuch that, had I not early adopted some general principles, I should before this time have been wholly occupied in this business. As it is, I have found the number of answers 177 178 * LECTURES ON CONSTITUTIONAL LAW. Lecture III. which I havG been necessitated to give in my own power"*'"^ liand, an almost insupportable burden to me.^" 2. Appointments to Vacancies during the Recess. Vacancies during A questiou lias been made as to the power of t e recess. ^^^^ President to fill an office during the recess of Congress, which was created by the legisla- tive body at its session immediately before that recess. In practice this has been frequently done ; and the better opinion would seem to be that it has been rightfully done. 3. Heads of Executive Departments. Heads of Execu- " There cau be no doubt that the President, tive uepartnieuts. -^^ ^j,^^ excrcisc of liis cxccutivc powcr Under the Constitution, may act through the head of the appropriate executive department. The heads of departments are his assistants in the perform- ance of his executive duties, and their official acts, promulgated in the regular course of busi- ness, are presumptively his acts. That has been many times decided by this court." ^ But when the action required of the President is judicial in character, not administrative, as when the duty is imposed upon him of review- ing the proceedings of Courts Martial, he must himself consider the proceedings laid before him, and decide personally whether they ought to be carried into effect.^ But this judgment, although 1 Sparks's Life nf Washington, 454. 2 Bunkle v. United States, 122 U. S. 543, 557. » lb. NOTES UPON LECTURE III. 17 'J his personal act in fact, and not presumptively, lecture hi. Heads of Exei tive Departments. need not be attested by his sign manual, in order "*^'*^'** "^ Exei-u- to be effective.^ 4. Pardons. In Hart v. United States the effect of a par- Pardons. don on the right to sue in the Court of Claims was again before the court. Hart, who was a resident in Texas, joined the insurgents in April, 1861, " and then and afterwards furnished them with supplies, money, and means of transporta- tion to carry on their invasion and campaign into New Mexico. On the 3d of November, 1865, the President granted to him a full par- don and amnesty for all offences committed by him, arising from participation, direct or implied, in the rebellion. Hart claimed certain sums as due to him for flour, corn, and forage delivered to the United States before April 13, 1861, and certain sums for flour, corn, and forage delivered after that date." " The Court of Claims applied to those de- mands of the claimant which accrued before April 13, 1861, the provisions of joint resolu- tion No. 46, approved March 2, 1867, 14 Stat. 571, now embodied in section 3480 of the Revised Statutes, forbidding the payment of claims against the United States, 'which accrued or existed prior to the thirteenth day of April, A.D. eighteen hundred and sixty-one, in favor of any person who promoted, encouraged, or in any 1 United States v. Page, 137 U. S. 673, 678, by Chief Justice Fuller. 180 LECTURES ON CONSTITUTIONAL LAW. lbpture III. manner sustained the late rebellion,' etc., and Pardons. further providing that no pardon should 'author- ize the payment of such account, claim, or demand, until this resolution is modified or repealed.' " It was urged before the Court of Claims that the pardon and amnesty granted by the Presi- dent to Hart on the 3d of November, 1865, 'for all offences committed by him arising from par- ticipation, direct or implied, in the rebellion,' operated to set aside the provisions of the joint resolution as to him and his claims. The court held otherwise. Its view was that Hart was guilty of numerous acts for which he could, on conviction, have been punished in his person and his property, and that the pardon freed him from liability for those offences ; that his disability to •'receive from the United States a debt due to him •'was not a consequence attached to or arising out iof any such offence 3 that it grew out of the fact, stated in the joint resolution, that he had been a public enemy ; that every disability which a state of war imposed upon him was removed by the cessation of the war ; that it needed no par- don to effect that result ; that, as the pardon conferred upon him no new right, so the joint resolution did not take from him anything which >the pardon had conferred ; that it did not, like the legislation considered in United States v. Klein, 13 Wall. 128, attempt to prescribe to the judiciary the effect to be given to a pardon, in regard to a matter to which the pardon extended, but merely forbade certain debts to be paid, un- NOTES UPON LECTURE III. 181 til Congress should otherwise order ; and that a lecture hi. creditor of the United States can only be paid in ^'^"■'^o°«- accordance with the provision of the Constitu- tion (Art. I, sec. 9, subd. 7), which declares that \ 'no money shall be drawn from the treasury, but in consequence of ai)propriations made by law.' . . . We are of opinion that the judgment of the Court of Claims was right." ^ 5. Treaties providing for payment of moneys. Whether a treaty, providing for the payment Treaties provid- of money by the United States, makes it obliga- oI'mOTey^™^" tory upon Congress to pass the necessary appro- priation, is a question that has been more than once mooted. When the treaty of 1794 with Great Britain, known as Jay's Treaty, was sent to the House by President Washington, that body, on the motion of Mr. Edward Livingston, asked the President to transmit to it a copy of the instruc- tions to Mr. Jay, and of the correspondence and documents relating to the treaty. This motion was resisted by the Federalists, on the ground that the treaty had become the supreme law, and that the House had no jurisdiction over a question which had been settled elsewhere under the Constitution. Notwithstanding the opposi- tion the resolution was adopted. In reply the President said : " Having been a member of the General Convention, and knowing the principles upon which the Constitution was formed, I have 1 Hart V. United States, 118 U. S. G2, 64, Go, 66. 182 LECTURES ON CONSTITUTIONAL LAW. Lecture III. Treaties provid- iiijj for payment of luoueys. ever entertained but one opinion on tliis subject, and from the first establishment of this Govern- ment to this moment, my conduct has exempU- fied that opinion ; that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Sen- ate, provided two-thirds of the senators present concur ; and that every treaty so made and pro- mulgated thenceforward becomes the law of the land. . . . As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty ; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light, and as it is essen- tial to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be pre- served — a just regard to the Constitution and to the duty of my office, under all the circum- stances of this case, forbid a compliance with your request."^ The House replied to this by resolving that when it made application to the Executive for information it was not necessary " that the pur- pose for which such information may be wanted, or to which the same may be applied, should be stated in the application." ^ This may have been the work of Madison, who wrote Jefferson, " The absolute refusal was as unexpected as the tone 1 Annals 1st Session, 4th Congress, 761, 762. 2 Annals 1st Session, 4th Congress, 771, 772. NOTES UPON LECTURE HI. 18o and tenor of the message are improper and lkctvrk hi. indelicate." ' After a long and animated debate, '^"'f'' p'""'*^' the House resolved, by a vote of 51 to 48, that of moneys, legislation ought to be had for carrying the treaty into elt'ect.^ Similar questions came up in 1803, when Mr. Jefferson asked appropriations for carrying out the treaty for the purchase of Louisiana. Con- gress granted the money .^ In 1816 the Senate passed an act to carry mto effect the commercial convention of 1815, with Great Britain. The substance of this act was that so much of any existing act as might be contrary to the provisions of the convention should be deemed and taken to be of no effect. The House passed an act, reenacting, seriathn, the provisions of the treaty. Each body refused to recede. The Senate maintained that, as the treaty was operative of itself, the act should be declaratory only. The House contended that legislation was necessary. A committee of con- ference was appointed, Rufus King being chair- man on the part of the Senate and John Forsyth on the part of the House. The principle of the settlement was thus stated to the House by For- syth : " Your committee understood the com- mittee of the Senate to admit the principle contended for by the House, that whilst some treaties might not require, others may require legislative provision to carry them into effect; that the decision of the question how far such 1 Madison to Jefferson, April 4, 1796. 2 Madison's Writings, 89. 2 Annals 1st Session, 4th Congress, 1291. 3 2 Wharton's Int. Dig. 19. 184 LECTURES ON CONSTITUTIONAL LAW. le( ruKE III. provision was necessary must be founded upon Treaties pruvid- ^^iq peculiar cliaractcr of tlie treaty itself." ' The iiig for payment ■■- "^ of moneys. bill agreed upon was enacted.''^ In 184o a commercial treaty was concluded with the German States containing provisions in regard to rates of duties. The Senate Commit- tee on Foreign Relations made an adverse report on the ground of the '' want of constitutional competency" to make it; and the Senate laid the subject indefinitely on the table. Mr. Cal- houn, then Secretary of State, said : "• If this be a true view of the treaty-making power, it may be truly said that its exercise has been one con- tinual series of habitual and uninterrupted in- fringements of the Constitution. From the beginning, and throughout the whole existence of the Federal Government, it has been exercised constantly on commerce, navigation, and other delegated powers." ^ Tlie subject was again before Congress when the bill making appropriations for the purchase of Alaska was under consideration. It was elaborately discussed in the House. In the end that body accepted a report from a conference committee containing a resolution with a pre- amble reciting that " the stipulations of the treaty cannot be carried into full force and ef- fect, except by legislation to Avliich the consent of both Houses is necessary." ^ 1 Introductory note, Treaties and Convention of the United States with other powers, orig. ed. p. 944. 2 3 Stat. 255, c. 22. 3 2 Wharton's Int. Dig. 20, 2L * Introductory note. Treaties and Conventions, orig. ed. p. 944. See also 2 Wharton's Int. Dig. 21. NOTES UPON LECTURE III. 185 6. Ojrinions hy Heads of Departments. Such opinions have been required in two not- lkcture hi. able instances. Opinions ..y heads of dcpartmeuts. In April, 1793, President Washington sent a circular letter to each member of his cabinet stating that '' the posture of affairs in Europe, particularly between France and Great Britain, places the United States in a delicate situation, and requires much consideration as to the meas- ures which it will be proper for them to observe in the war between those powers." He asked to have the questions considered preparatory to a meeting the next day, when he should expect to receive " the result of their reflections." ^ Thir- teen questions were enclosed^ relating to the issue of a proclamation of neutrality, to the then relations between France and the United States, and to the binding; force of treaties with France concluded during the War of the Revolution. Mr. Jefferson has left an account of the meet- ing of the cabinet in which these questions were answered seriatim and individually.^ " It was determined by all, on the first question, that a proclamation shall issue, forbidding our citizens to take part in any hostilities on the seas, with or against any of the belligerent powers ; and warning them against carrying to any such powers any of those articles deemed contraband, according to the modern usage of nations ; and 1 10 Sparks' Washington, 337. 2 10 Sparks' Washington, 533. 8 9 Jefferson's AVorks, U2. 186 LECTURES ON CONSTITUTIONAL LAW. lecturk III. enjoining them from all acts and proceedings opimotib y lea b j^j^^Q^^^i^^yi^t witli the diitics of a friendly nation of depaitinents. -J towards those at war. On the second question, '- Shall a minister from the Republic of France be received ? ' it was unanimously resolved that he shall be received. The remaining questions were postponed for further consideration." ^ In August, 1873, this constitutional jDower was again exercised by President Grant. He sent to each member of his cabinet seven questions on the subject of expatriation, and received let- ters in reply from all. With his annual message to Congress on the following December he trans- mitted this correspondence, saying : " I invite the earnest attention of Congress to the existing laws of the United States respecting expatriation and the election of nationality by individuals. . . . Persons who have never resided within the United States have been enabled to put forward a pretension to the protection of the United States against the claim to military service of the government under whose protection they were born and have been reared. In some cases even naturalized citizens of the United States have returned to the land of their birth, with intent to remain there, and their children, the issue of a marriage contracted there after their return, and who have never been in the United States, have laid claim to our protection when the lapse of many years had imposed upon them the duty of military service to the only govern- ment which had ever known them personally. 1 10 Sparks' Washington, 534. NOTES UPON LECTUKE 111. 187 . . . For my own guidance, in determining such^.KrrijRK ni. questions, I required (under the provisions ^f '*'7'""V''' 'T'' the Constitution) the opinion in writing of the principal officer in each of the executive depart- ments upon certain questions rehiting to this subject. The result satisfies me that further legislation has become necessary. I therefore connnend the subject to the careful consider- ation of Congress, and I transmit herewith copies of the several opinions of the principal officers of the executive departments, together with other correspondence and pertinent infor- mation on the same subject." ^ 7. Power to approve an act after the adjourn- ment of Congress. On the 3d of March, 1863, Congress passed Approval of an " an act to provide for the collection of aban- ^^^^^^ ilsTdimira- doned property, and for the prevention of frauds meut. in insurrectionary districts within the United States." On the 4th of March that Congress was adjourned sine die under the Constitution, and that act had not received the signature of the President. On the 12th of the same March (within the ten days) President Lincoln signed it, and it was printed with the other acts of that Cong-ress.^ Under its operation a large amount of prop- erty came into the possession of the Executive ; but it was not thought wise to attempt to administer upon it in the courts, without a recognition by the law-making power, which 1 Foreign Relations, 1873, pp. vi, vli, 1185. 2 12 Stat. 820, c. 120. 188 LECTURES ON CONSTITUTIONAL LAW. Lecture III. Approval of an act of Congress after its adjourn- ment. ♦should practically amount to its reenactment. Accordingly Congress, on the 20tli of July, 1864, p'assed " an act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary States, and to provide for the collection of captured and abandoned prop- erty, and the prevention of frauds in States declared in insurrection. This statute practi- cally reenacted the previous act with amend- ments, and thus disposed of the difficulty." ^ Partial veto. 8. Partial Veto. President Grant, in his annual message of December 1, 1873, recommended the adoption of an amendment to the Constitution, " To author- ize the Executive to approve of so much of any measure passing the two Houses of Congress as his judgment may dictate, without approving the whole ; the disapproved portion or portions to be subjected to the same rules as now, to wit, to be referred back to the House in which the measure or measures originated, and, if passed by a two-thirds vote of the two Houses, then to become a law without the approval of the Presi- dent." He added : " I would add to this a pro- vision that there should be no legislation by Congress during the last twenty-four hours of its sitting, except upon vetoes, in order to give the Executive an opportunity to examine and approve or disapprove bills understandingly." Congress took 'no action on this recommendation. 1 13 Stat. 375, c. 225. lY. THE SEPARATE POWERS OF THE SEN- ATE AND THE HOUSE OF REPRE- SENTATIVES.i Article I, Section 5. Each House shall be the Lkcture IV. Judge of the Elections, Returns and Qualitications of its own Members, and a Majority of each shall consti- tute 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 Members, in such Manner, and under such Penalties as each House may provide. Each Plouse may determine the Rules of its Pro- ceedings, punish its Members for disorderly Behav- iour, and, with the Concurrence of two-thirds, expel a Member. Each House shall keep a Journal of its Proceed- ings, and from time to time publish the same, except- ing 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. 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. Article I, Section 2, Paraokai'H fj. The House of Representatives shall chuse their Speaker and other OiBcers ; and shall have the sole Power of Impeach- ment. Article I, Section 7. All Bills for raising Reve- nue shall originate in the House of Representatives ; 1 This is Lecture III of the Lectures delivered before the classes of the University Law School, 189 190 LECTURES ON CONSTITUTIONAL LAW. Lecture IV. but the Senate may propose or concur with Amend- ments as on other Bills. Extract from the Twelfth Amendment. The person having the greatest number of votes for Presi- dent, shall be the President, if such number be a majority of the whole number of P^lectors appointed ; and if no person have such majority, then fi'om 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. But in choosing the Presi- dent, the votes shall be taken by states, the repre- sentation from each state having one vote ; a quorum for this purpose shall consist of a member or mem- bers 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 Presi- dent whenever 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. Article I, Section 3, Paragraphs 4, 5 and 6. Tlie Vice-President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse 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. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the Presi- dent of the United States is tried, the Chief Justice shall preside : And no Person shall be convicted with- out the Concurrence of two-thirds of the Members present. Article II, Section 4. The President, Vice-Presi- dent 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 II, Section 2, Paragraph 2. He [tlie President] shall have Power, by and with the Advice and Consent 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 SEPAKATE POWERS OF EACH HOUSE. 101 • Consent of the Senate, sliall appoint Anil)assa(lnrs, Lecture IV. 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 vest 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. Of the powers conferred upon the General Congress. Government by the Constitution of the United States much the most important are those given to the legislative body. Many if not nearly all of the powers of the executive and judicial branches of the Government are regulated in the manner'of their exercise by the laws enacted by this body, called the Congress.^ It is made to consist of two branches, the Senate and the House of Representatives ; and there is confided to the President a limited right to control the action of these two Houses by the exercise of the veto power. Each House of Congress has 1 In England, from whence most of our legal principles and leg- islative notions are derived, the authority of Parliament is tran- scendant and has no bounds. ... It can change and create afresh even the constitution of the kingdom and of Parliament itself. It can, in short, do everything that is not naturally impossible. Vanhorne''s Lessee v. Dorrance, 2 Dall. 304, 307. It is a fundamental principle with English lawyers, that Parlia- ment can do everything except making a woman a man, or a man a woman. De Lolme, Constitution of England, p. 135. Tlie first meeting of the Commons in a separate body, as an independent branch of Parliament, was in 1.^00, the 34th year of Edward I. Prior to this time they had met with the nobles and the clergy and had been outvoted, but they thenceforth assumed the power to act independently upon proposed legislation, and especially in the enactment of tax laws. This was the beginning of the growth of the dominant influence of the House of Commons in the English Govermuent of to-day. 192 LECTURES ON CONSTITUTIONAL LAW. Lecture IV. Congress. Separate powers of each House. Qualifications of members. certain powers of its own wliieh it exercises independently of the other, and it is to these that I propose to call your attention. Article I, section 5, declares that : — "Each House shall be the judge of the elec- tions, returns, and qualifications of its own members, and a majority of each shall consti- tute 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 members, in such manner, and under such pen- alties, as each House may provide. " Each House may determine the rules of its proceedings, punish its members fot disorderly behavior, and, with the concurrence of two-thirds, expel a member. " Each House shall keep a journal of its pro- ceedings, 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. "Neither House during:: the session of Con- gress, 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 sittins;." It will be observed that while these provisions give to each House the same powers, and impose upon each the same limitations, they are to be. exercised separately and independently. " Each House shall be the judge of the elections, returns, SEPARATE POWERS OF EACH HOUSE. I'Jo and qualifications of its own members." This lkcture iv. provision necessarily refers all contested elec- ^-^"'''i'^'''''""'* ** ^ ^ members. tions, and all questions about the eligibility of members of Congress, to the House to which they belong ; but it seems from the experience of the past to have been one of those principles adopted from the English House of Commons which has not worked well with our institutions, and which the House of Commons itself has been compelled to abandon. Contested elections are now by the law of England tried before the judi- ciary, and the judgment of the court is conclusive upon the subject. It is conceded on all hands that justice is in this way more nearly adminis- tered with accuracy, than it was under the former system. Both in that country and this under the former method the result of a contested election has been very generally forecast by a knowledge of the relations of the parties con- testing to the political majority or minority of the House in which the contest is carried on. As this is a constitutional provision, however, there exists no power in the legislature, without an amendment of that instrument, to refer these contested cases to the judiciary. The increasing number of contested election cases arising out of frauds supposed to be perpetrated at the elec- tions themselves, the investigation of which is always difficult, and the uncertainty of a fair and impartial decision by the Senate or House before whom the matter may come, render it very doubtful whether the enture provision on this subject is of any value. 194 LECTURES ON CONSTITUTIONAL LAW. lkcture IV. Very few controversies, if any, have arisen in Qualifications of ^,^^^ • ii Tn •• e •. members. either body concerning the qiuiiincations or its members. It was at one time a question some- what mooted whether the States could add to the quaUfications which the Constitution has prescribed for members of the Senate or the House of Representatives ; but it is now conceded that these must be determined by tlie Constitu- tion alone, because, although it may be conceiv- able that Congress might make some conditions or limitations concerning the eligibility of its members, it has not been done, and the constitu- tional qualifications alone regulate that subject. Power to compel The powcr to coiiipel the attendance of ab- attendance. ^^^^^ members is one which unfortunately it is often necessary to call into operation. In the House of Representatives the " call of the House," which is the phrase for the method used in compelling each member to be present, is one which in every session is frequently re- sorted to, and is always tedious and almost fruitless in its results. The stately Senate resorts to this measure more rarely, but it has been found occasionally necessary, even there. The penalties for such absence have in practice usually amounted to nothing ; the absentees are generally brought in, under the custody of the sergeant-at-arms, and make an apology which is accepted. Rules. The provision that each House may determine the rules of its proceedings has led to the adop- tion of two systems, differing widely from each other, in each of the bodies. The main basis, SEPARATE POWERS OF EACH HOUSE. 195 however, on which those rules have been con- lkctukk iv. striicted is Jefferson's Manual, a work prepared ^"'^''" by him mainly from the historical precedents in the English House of Commons. These rules have become by many changes and amend- ments very numerous. The Senate, being a much smaller body than the House, and profess- ing to proceed upon principles of courtesy which allow every member to speak upon any question as long as he may desire, most of the business of that branch of the Legislature is done under a kind of general consent. In the House of Representatives, on the contrary, the greater numbers of that body, and the difficidty of re- straining its members, and making them conform to any set of regulations, have led to a very com- plex and troublesome set of rules. With a good knowledge of them an experienced member, who has served in that body during several terms of Congress, may obtain a very great advantage in the conduct of the business of the House. Many of these rules, indeed, in the opinion of intelli- gent members and outside observers, are better calculated to embarrass than to facilitate the progress of business, and a member familiar with them and their bearing upon all subjects of legislation which may arise is often enabled to get the House into inextricable confusion, and retard or suspend its proceedings entirel3\ It is obvious, therefore, that these rules could be very much improved by a careful revision. The punishment of members for disorderly Pnnishmont for behavior has generally been by resolutions ex- j^^. 196 LECTURES ON CONSTITUTIONAL LAW. Lecture IV. pressmg the disapprobation of the House to dUorderi^'b/hav- which the member belonged, or by a reprimand ior. to the disorderly party by the presiding officer thereof under the direction of that body ; but both of these punishments, as well as the expul- sion of a member which requires two-thirds, have been of rare occurrence and have never been exercised, it is believed, without sufficient grounds, although this has been questioned in re- gard to some cases of expulsion at the beginning of the recent war on account of the supposed treasonable practices or utterances of certain Senators. Journals. Each Housc shall keep a journal of its pro- ceedings, and, from time to time, publish the same, excepting such parts as may, in their judgment, require secrecy. The journals of both Houses of Congress have undoubtedly been faith- fully kept since the beginning of the Govern- ment ; and but rarely has any portion been withheld from publication, except that which relates to the secret sessions of the Senate when engaged in its function of considering treaties or nominations to office sent to it by the President. Very recently a strenuous effort has been made to abolish the secret sessions in which these matters have been considered, by a resolution of the Senate itself. Thus far it has failed ; and in regard to treaties it is certainly wise that, while they are yet incomplete and matters of negotia- tion between the two nations proposing to make them, the discussions of a body like the Senate should not be bruited abroad. SEPARATE POWERS OF EACH HOUSE. 1!J7 The provision that " the yeas and nays of the lectukk iv. members of either House, on any question, shall, <''^''<>f "'♦'ya* •■' ^ ' and nays. at the desire of one-lifth of those present, be entered on the journal," whether wise or unwise, is the fruitful source of a great waste of time. It may be very well doubted whether the call of the yeas and nays in the House of Representci- tives, which necessarily consumes a great deal of time, is not resorted to more for that purpose than any other, thereby frequently defeating a measure which a majority of the House is pre- pared to pass. It may be of some advantage in the way of compelling members to spread their names upon the record as having voted for or against any particular proposition, and thereby holding them responsible to the public sentiment of their constituents. Where this is the consci- entious object and motive in calling for the yeas and nays it is probably unobjectionable, and in the enactment of laws of great public impor- tance it is desirable, for many reasons, that the votes of members should be recorded. No doubt this was the object of the Constitution in author- izing a call of the yeas and nays upon the re- quest of one-fifth of the members present, and this requirement of one-fifth seems to be a neces- sity to prevent the frittering away of the time of the legislative body at the request of a single member. The requirement that " neither House, during Limitation in the session of Congress, shall, without the con- ^dlourmnenr''' sent of the other, adjourn for more than three days, nor to any other place than that in which 198 LECTUIIES ON CONSTITUTIONAL LAW. Separate powers of the House. lectuke IV. the two Houses shall be sitting," is of obvious powerof'soILate necessity to prevent either branch of the Con- adjouniment. gress from breaking up its sessions. If one House could adjourn itself to a different place it would practically be an end to that session of Congress ; or if one House could adjourn of its own motion without the other, for two or three weeks at a time, the obstruction of the public business would be very great, and there would be an impossibility of the co-operative action contemplated by the Constitution. In practice, the three days' limit is reached by one or both branches of Congress very frequently during a long session, when an adjournment is had over from Thursday until Monday. These are the provisions which apply equally to each House of Congress, and are obligatory upon both. We now come to consider certain powers and functions which are reposed in one House and not in the other. Of these we will begin with the House of Representatives. Article I, section 2, declares that " the House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeachment." In the use of the word which des- ignates the presiding officer of that body the con- vention which framed the Constitution adopted, as it has done in so many other instances, the language of the law of England in regard to the presiding officer of the House of Commons. While there is in the Constitution no very defi- nite description of the powers which may be exercised by the Speaker of the House, that The Speaker. SEPARATE POWERS OF EACH HOUSE. I'M) office lias become, by the practice and the rules lectukk iv. of the House, the repository of more unrestricted ^'^^ ^p^aker. power than any other officer of the Government of the United States possesses. The Speaker ap- points all the committees of that body, whether those prescribed by the general rules of the House or special committees for particular occa- sions. He not only appoints these committees, but he nominates their chairmen ; although he does this, of course, with reference to the opin- ions of the members of the committee, so far as they may be known, in regard to matters which will come before them. It is also customary to make up these committees, with regard to the political affiliations of the members who are to compose them, in such a manner as to give a majority upon each committee to the party to which the Speaker himself belongs ; and in re- gard to particular measures which may be brought to the attention of the House, the Speaker, if he is aware of their character, may so arrange the committee, to which they will be referred, as to secure action in accordance with his own views of the subject under consideration. As the influence of the reports and action of these committees has grown greater and greater with the increasing number of the members of the House of Representatives, the power of the Speaker in thus securing in advance a committee which will act according to his views is hard to over-estimate. In the pressure of business in the House, which is alw^ays very great, the recogni- tion of a member by the Speaker, or his failure 200 LECTURES ON CONSTITUTIONAL LAW. lectukk IV. to SO recognize liim when he rises upon the floor, The Speaker. Qf^en determines the fate of an important meas- ure ; and this recognition, which formerly was supposed to be impartial and the actual result of the Speaker's eye first falling upon the member whom he recognized, has come to be in modern times a matter of prearrangement and under- standing between the Speaker and the members who desire to be heard. All this makes him al- most the absolute arbiter of the important leg- islation which is crowded into the latter part of a session of Congress. The House of Representatives, by the char- acter of its organization under the Constitution of the United States, consists of the same body of men for two years, and a term of Congress has come to be treated as the same as that of the members, whose term of office commences on the fourth of March and continues for two years thereafter. It is this body which elects a Speaker, and he is elected for the term of that Congress. There is, therefore, a new Speaker elected at the beginning of every Congress. It is creditable to the characters of the Speakers who have presided over that body, and to the discretion of the respective Houses that elected them, that it is rare that a Speaker has only served a single term. They have generally been re-elected for several terms, as long as they them- selves remained in Congress and their party in the majority, or chose to seek a re-election. Undoubtedly this grows largely out of the fact that the necessity and value of experience in a SEPARATE POWERS OF EACH HOUSE. 201 Speaker is felt by all the members ; and perhaps LECTtrnE iv. it may be said also that, subject to certain rec- ^'^^ ^p^^^^'- ognized obligations to the political party who elected him, the Speaker has generally been found to be impartial toward the members, and just in his rulings on matters submitted to him. The other officers of the House of Represent- other officers of atives, beside the Speaker, are the clerk, the*^®"*'"^' sergeant-at-arms, doorkeeper, postmaster, and perhaps others of inferior grade. These require no connnent at the present time, except to say that they are almost invariably selected at a caucus of the dominant party held a day or two before the organization of the House. It has happened once or twice in the history of the Government, the contest for the office of Speaker being so close and so bitter, that, no candidate receiving a majority of the whole number of votes, the struggle was prolonged for several weeks at the beginning of the session, durino; which the House could do nothinsr. The House also has the sole power of im- Power of im- peachment.^ The Constitution provides else- ^^**^^'"^°** ^ " It is not disputed that the power of originating the inquiry, or, in otlier words, of preferring the impeachment, ought to be lodged in tlie hands of one branch of the legislative body ; will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry ? The model from which the idea of this institution has been borrowed, pointed out that course to the con- vention. In Great Britain it is the province of the House of Com- mons to prefer the impeachment, and the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legis- lative body upon the executive servants of the Government. Is not this the true light in which it ought to be regarded ? " The Feder- alist, No. 64. Dawson's ed. : No. 65, Hallowell ed. 202 LECTURES ON CONSTITUTIONAL LAW. lect<:re IV. where, to which we have already referred in pra^cbureut'"" these lectures, that the President, and all the other officers of the Government, may be re- moved from office by impeachment for high crimes and misdemeanors. The process of im- peachment, which is here provided for, can only begin in the House of Representatives. This is done by that House fornmlating charges in the nature of an indictment against the officer intended to be impeached, upon inquiry into the matters which they propose to include within such impeachment. No other body has the right to prefer these articles or charges. In doing this the House of Representatives dis- charges a function in the nature of that exer- cised by a grand jury. Nor does its connection with the proceedings cease with the mere formu- lation of the charges and the presentation of them to the Senate, which is the body that tries the impeachment. The prosecution of the case before the Senate by the introduction of evi- dence, the argument of the cause, and all the other machinery for the conviction of the de- fendant, is submitted to the control of the House. That body usually appoints a special committee, called a committee of managers, who conduct the prosecution. They may be, and in impor- tant cases are, aided by counsel who are not members of the committee, nor even members of the House ; but this matter is within the con- trol of the House, and such counsel are employed by its authority. The most important trial of this class which SEPARATE POWERS OF EACU HOUSE. 203 has ever taken place in this country was that of lecture iv. President Johnson, which has ah^eady been ^e- ^"""y "^ ""' ferred to. This power of impeachment has not been exercised very frequently, probably not nearly so often as it would have been but for the limited tenure of most of the officers of the Federal Government. The process is tedious and expensive, and the requirement of a two- thirds uiajority in order to convict, renders it generally mefficient. As most of the officers of the Government have a term fixed to the enjoy- ment of their offices, it has been usually thought wiser to let the limitation effect the removal, than to engage in this costly and unsatisfactory process of impeachment. " All bills for raising revenue shall originate Revenue biiia. in the House of Representatives ; ^ but the Senate may propose or concur with amendments, as on other bills." ^ This is a very important function of legisla- tion, as it is now construed by the House, to be reposed exclusively m that body. As we would 1 The House of Representatives can not only refuse, but they alone can propose the supplies requisite for the support of Govern- ment. They, in a word, hold the purse ; that powerful instrument by which we behold, in the history of the British constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon, with which any constitution can arm the immediate rep- resentatives of the people for obtaining a redress of every griev- ance, and for carrying into effect every just and salutary measure. The Federalist, No. 57, Dawson's ed. : No. 58, all other editions. 2 Constitution, Art. 1, sec. 7, par. 1. 204 LECTURES ON CONSTITUTIONAL LAW. Lecture IV. naturally Understand the meaning of the term Revenue bills. ''revenue" at the present day, the expression " bills for raising revenue " would have reference to laws for the purpose of obtaining money by some form of taxation or other means of raising the necessary funds to be used in supplying the wants of the government, paying its expenses, and discharging its debts. The appropriation of that money, which is always necessarily done by virtue of an act of Congress, would seem to be quite a different thing from the laws prescrib- ing how the money shall be raised. In practice, however, the House of Representatives has in- sisted that, not only shall it originate all bills of ways and means for raising revenue, for which purpose there is a committee appointed in that body called the " Committee on Ways and Means," but it has also claimed that all the appropriation bills, and especially the annual appropriation bills, which are prepared each year to meet the current expenses of the Government during the succeeding fiscal year, shall originate in that body ; and it has, therefore, a stand- ing " Committee on Appropriations." This has been the practice now for so long a time that it may be doubted whether it will be seriously questioned. The Senate, however, has never given its full assent to this proposition, but has, on the con- trary, from time to time originated bills appro- priating money for specific purposes ; although it is not believed that it has for a great many years attempted to act upon any of the general SEPARATE POWERS OF EACH HOUSE. 205 appropriation bills until they have been sent to lecture iv. that body from the House. At the present time ^'^'""' *''^*^- there is no apparent connection between a bill for raising money and an appropriation bill to spend that money. The revenues of the country are derived from a system of permanent taxation, which year after year brings into the treasury of the United States, by its continued operation, sufficient means to pay all the expenses of the Government, as well as the interest on its public debt ; and it is not necessary that every year, or even at every term of the Congress, there should be a new law for the raising of revenue, but it is required that there should be a law every year appropriating the money thus placed in the treasury to the needs of the Government. It is difficult to see, under this clause of the Consti- tution, how it is, when no new law is necessary to raise revenue, that the act appropriating or directing how the revenue already raised, which exists or is expected to exist in the treasury, shall be appropriated, can be properly called a bill for raising revenue. Undoubtedly the adop- Difference be- tion of this article into the Constitution, and the *^f " ^"^•''^^ ' and Ameneau construction which has been given to it, is the practice in this result of the practices of our English ancestors. ^^ The Commons of England came into existence as an efficient power in the government of that country by virtue of the necessity there was for them to make contributions, called subsidies, and taxes, which they gave to the King for his support and for that of his government. This at first was done at odd times, and but infre- 206 LECTURES ON CONSTITUTIONAL LAW. Lecture IV. Difference be- tween English and American practice in this matter. quently, the King relying in early days upon his own revenues to support his regal station and his authority. But as these became inade- quate, and wars with foreign nations demanded more money and treasure or property than the King could command, he was by necessity com- pelled to call upon his subjects to aid him by contributions from their substance. This he did by calling together certain prominent and leading men in the country who represented their own classes and the citizens of the towns, who voted a voluntary supply, or contribution, or subsidy (for it was called by all of these names), which they appropriated to the support of the King and his government. These votes and gifts of the Commons they were very jeal- ous about. They would not permit the King himself to levy these taxes or contributions without their consent given in public in solemn form ; and it may be remarked that the revolu- tion in which King Charles lost his life was the result of an attempt on his part to do this. Neither would they permit the House of Lords to vote these taxes or supplies. Hence, as the necessity for resorting to the Commons for the support of the government grew greater and greater, the tenacity with which they clung to the right to have this done by their own volun- tary action became stronger and stronger.^ ( 1 The Commons, through its nominees, tlie ministry, has ab- sorbed the greater part of the power of the Crown, and more and more reduced the other House to a position of secondary impor- tance. SEPARATE TOWERS OF EACH HOUSE. 207 These contributions were at first voted at LKrTURK iv. considerable intervals, and the bill or law by [|v,.^,7K',LLsh which they were given was both a bill to raise and American , , '1,1, 1 practice in this revenue and to appropriate that revenue when matter, raised. They, therefore, came to be called ap- propriations, or bills of supply, and perhaps revenue bills. They have retained that name to the present time in England, as well as in most of the States of the Federal Union. ^ The annual appropriation bills in Great Britain, and in this country in most of the States, are called "bills of supply." In England a familiar term also is " The Budget," and this budget, while voting the money necessary for the support of the Government, almost always contains some modification of the system of taxation ; they are united together, and they are in fact bills which appropriate the money, and establish the sources at the same time from which it shall be raised. It is undoubtedly in analogy to that system, as furnishing the true meaning of this clause of the Constitution, that the phrase " bills for rais- ing revenue" in that instrument has come to be construed to include both bills of appropriation and bills for establishing or raising revenue; although they may be very different in character, and the bill for an appropriation may contain no element incident to the raisinfi; of revenue. It is singular that so little comment is to be found upon this clause of the Constitution by those who have made that instrument the sub- ject of their consideration ; and there is but little reference to it in the debates of the two Houses 208 LECTURES ON CONSTITUTIONAL LAW. lk(ti;re IV. of Congress or in the discussions at the time the iweerKn'Misii Constitution was framed and adopted. It seems to and AmeriLiiu havc been assumed, and probably a hundred years matter ^^go it was the usual custom, that appropriation bills were accompanied by more or less legisla- tion on the subject of the means of raising reve- nue. But at the present time, under our settled system of financial operation, although there is, of course, a necessity for regulating the expen- ditures of the Government and therefore prepar- ing the appropriation bills to meet its expenses according to the means which are at the com- mand of Congress, there is, in fact, a very re- mote connection between a bill for the raising of revenue and the ordinary bills appropriating the revenue already raised to the support of the Government. Election of Presi- In some respects the most important duty, is^noliection^bj ^cvolvcd npon the Housc of Representatives the people. exclusively by the Constitution, is that which was originally found in Article II, section 1, paragraph 3, of that instrument, but for which the Twelfth Article of the amendments has since been substituted. This Article, after amending in some respects the clumsy provision as it originally stood concerning the appointment of electors, and their choice of a President, declares that " 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 majority, then, from the persons having the highest numbers, not exceeding three, on the list SEPARATE POWERS OF EACH HOUSE, 209 of those voted for as President, the House of lecture iv. Representatives shall choose immediately, bv ^^'-'^""," "^ I''*''*'' A _ ^ 'J ' ^ dent wlieii tliere ballot, the President. But in choosing the is no election by President, the votes shall be taken by States, *''^ i*^°p>*-"- 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. And if the House of Rep- resentatives 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 case of the death, or other constitutional dis- ability of the President." As this provision stood in the original Consti- tution, each elector cast two votes, and the per- son receiving the largest number of such votes was to be President, and the one the next largest was to be Vice-President. This made no pro- vision for distinctive votes for President and for Vice-President, the result of which was that at the end of President John Adams' administra- tion, when the electors came to cast their votes, it was found that Mr. Jefferson and Mr. Burr had an equal number of votes, though it has been said that in the popular canvass which resulted in the election of these electors, it had always been understood that Mr. Jefferson was supported for President by those who voted for Mr. Burr as Vice-President. The result, hoAvever, of this tie was that the election w^ent to the House of Representatives under the provision in the orig- 210 LECTURES ON CONSTITUTIONAL LAW. lecturk IV. inal Constitution, and not under the ones which f'""''7°^f'"''- we have iust cited from the Twelfth Article of dent when there -> is no election by the amendments, and a long and bitter contest tiepeope. eusucd in that body before Mr. Jefferson was finally elected President, and Mr. Burr Vice- President. A similar event under this Twelfth Article occurred at the expiration of Mr. Monroe's ad- ministration, when neither of the candidates who were voted for by the electors received a major- ity of the electoral votes. . General Jackson received a plurality ; Mr. John Quincy Adams received the next highest number, and then came Mr. Crawford and Mr. Clay. The election by the House, taken by States, resulted in the choice of Mr. Adams. Although this mode of electing a President, by which, as in the case last cited, the plurality of the electoral vote and a very large plurality of the popular vote was for one man, while another was elected President by the House of Representatives, has never met with general public approval, yet it remains unaltered in the objectionable feature mentioned, and but little effort has ever been made to change it. In fact the whole subject of the manner of electing a President has never been satisfactory to the general public, and only the difficulty of propos- ing a system which would meet with the gen- eral approval of the States, to which it would have to be submitted, has prevented some mate- rial modification of it. The manner of counting the votes is left ambiguous in many respects, SEPARATE POWERS OF EACH HOUSE. 211 and in the case of the contest between Mr. lecture iv. Hayes and Mr. Tilden was a subject of m^eciif'f "''''' ^''''- power. have power to lay these taxes and collect them in order " to pay the debts and provide for the common defence and general welfare." ^ The importance in the study of constitutional History of consti- law of this subject of the power of taxation, as ^^^^°°^ taxation, exercised by both the Federal and State govern- ments, can hardly be overestimated. It would be curious and interesting to examine into the origin, growth, and progress of methods of taxa- tion as a means of carrying on the business of government, but it is unnecessary to go further back than the feudal ages to note the fact that no taxes were needed then to carry on the pub- lic institutions. The monarch, king, duke, or other sovereign of a particular district or coun- try was generally the owner of a large propor- tion of the soil. The men who cultivated it were his villeins, serfs, or tenants. The theory of English land tenures to-day is, that the orig- . 1 The Government of the Union is a Government of the people ; it emanates from them ; its powers are granted by them ; and are to be exercised directly on them and for their benefit. Though lim- ited in its powers, it is supreme within its sphere of action. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end or not prohibited, may constitutionally be employed to carry It into effect. McCulloch v. Maryland, 4 Wheat. 316. Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defence and general welfare of the United States. . . . Congress is not empowered to tax for those purposes which are within the exclusive province of the States. Gibbons v. Ogden, 9 Wheat. 1, 199. Taxation purely in aid of personal or private objects is beyond the legislative power and an unauthorized invasion of private right. Loan Association v. Topeka, 20 Wall. 655, 662. 232 LECTURES ON CONSTITUTIONAL LAW. lkcturk V. inal title is in the king, and that everybody who History of consti- j^ ^^ interest in the land is a tenant. There tutioual taxation. is no such thing known in England, though it may be in some other countries, as an allodial title ; that is, one which is absolute, such as we have in this country, to the ownership of the soih^ Out of this fact come many of the diffi- culties American students find in regard to the doctrines pertaining to estates and tenancies. Our laws have been freed from a large part of those intricacies and traditional requirements, which were the outgrowth of centuries of devel- opment among our English ancestors regarding the holding of land, but their influence still em- barrasses our judicial system. A sovereign who owned all the land of a coun- try, and who could impose such terms as he pleased on the people who cultivated it, naturally did not need any taxes, in the ordinary use of that term. It was customary, however, to take rents, and generally services, in addition to the revenues derived by the prince from his own large domain, which was cultivated by his own servants. He was also attended by a retinue of followers, his feudatories, sub-tenants, or lords, who each had their following. War was made 1 In England all land is held mediately or immediately of the king, and there is no allodial tenure. The greatest dominion rec- ognized over property by the English law is expressed by the words "tenancy in fee simple." In America, however, the title of land is essentially allodial. In New York, Pennsylvania, Connecticut, Virginia, Michigan, and perhaps other States, lands have been declared to be allodial and free from every vestige of feudal tenure. 4 Kent. Com. 2. THE POWER OF TAXATION. 233 by the prince calling on those who owed him lkcturk v. allegiance to come forward with their followers, "•■^/"''y "/ t-onsti- & ' tutional taxation. and by thus joining together their forces form an army with which the sovereign could take the field. Many a kingdom was won or lost by the failure of the feudatory chiefs to come for- ward to fight in response to such a call. Each was generally expected to bear his own ex- penses, while the cost of the Central Govern- ment the king paid himself. He was, indeed, but little more than a superior chief. We cannot, however, trace the history of our provisions those customs farther at this time than to sav, ^'^"y*''^/'"^™ -J ' England. that the great revolution in England, by which the constitutional rights of the people were finally established, wherein Charles I lost his head and James II had to flee the country, was caused by a question of taxation. The old methods, to which reference has been made, for getting the means of maintaining the public authority had become exhausted. The king had not soil or country enough to furnish means for his proper support, and that of his govern- ment, and so he had gradually come to receive assistance from the people by the House of Com- mons voting him certain concessions, as they called them, out of the wealth of the country every two or three years, which was called their free offering. This was the free offering of the Commons and not of the Lords. This fact is the origin of that provision in the Constitution of the United States declar- 254 LECTURES ON CONSTITUTIONAL LAW. Lecture V. ing that " all bills for raising revenue shall Our provisions • • . • .i tt r t> x i* " derived from Originate m the House 01 Kepresentatives England. (Art. I, scc. 7, par. 1), which body, under our political system, may be compared with the English House of Commons. That more nearly representative and popular body, in comparison with the House of Lords, Avas very jealous of its dignity and prerogatives. The Commons, claiming to represent the people, said, in effect, that what they gave to support the government was their money ; that the prince could not get it unless they voted it, and that they did not propose to allow the Lords to originate a bill declaring that they raised the money without their assistance.^ Questions growing out of taxation, the meth- ods by which it should be levied, and its col- lection enforced, have always been troublesome, and they have frequently led to public disturb- ances and even to prolonged wars. Out of the taxation of tea, and the taxation by means of stamps, imposed upon the American Colonies by Great Britain, arose the difficulties which culmi- nated in the revolution that secured their inde- pendence. But after a while it came to be understood, at least in all civilized nations, that government must be carried on, not by the revenue derived from the domain of the sover- eign or money belonging to him, but by contri- ^ All bills for granting money must have their beginning in the House of Commons ; the Lords cannot take this object into their consideration but in consequence of a bill presented to them by the latter. De Lolme, Constitution of England, p. 59, ed, London, 1834. THE POWER OF TAXATION. 235 butions from the people. A tax is a contribution, LErTURE v. and the modern and free orovernments organized ?""! prov'Hions ~ ~ (lenveu from for the benefit of society, must depend upon England, them for their support. The definition by both Webster and Story is that " a tax is a contribu- tion imposed by government on individuals for the service of the State." ^ When, therefore, the members of the conven- tion assembled from the various States, for the purpose of forming an organic law for the gov- ernment of the new nation, which was intended to be permanent in its character, the very first power that they conferred upon Congress was that of laying and collecting taxes, duties, im- posts, and excises, for the purpose (if it may be so construed) of paying the debts and providing for the common defence and general welfare. It will be observed that it does not say "all taxes," because in another clause of the same instrument it is said that " no capitation, or other direct tax shall be laid, unless in propor- tion to the census or enumeration," directed to be taken. Art. I, sec. 9, par. 4. It has been a troublesome question to determine what was 1 Taxes are defined as being tlie enforced proportional contri- bution of persons and property, levied by the authority of the State for the support of the government, and for all public needs. They are the property of the citizen, demanded and received by the government to be disposed of to enable it to carry into effect its mandates, and to discharge its manifold functions. Cooley on Taxation, 1. The power to tax is granted for the beneiit of the vt^hole people, and none have any right to complain if the power is fairly exercised and the proceeds properly applied to discharge the obligations for which the taxes were imposed. — North Alissouri liailroad Co. v. Maguire, 20 Wall. 46, 60. 236 LECTURES ON CONSTITUTIONAL LAW. IjECTittie v. Our provisions derived from England. Capitation tax. Direct tax. meant by the expression "direct taxes" as dis- tinguished from other taxes. A " capitation tax " is, of course, so much a head, and must be levied according to the popu- lation, as determined by the census. It can be levied in no other way. But it is not so easy to determine what is a "direct tax." The question has been before the Supreme Court of the United States several times, and has been the subject of comment in both Houses of Congress. One principle upon which all have agreed is, that a direct tax must be made upon each State in proportion to its population. When a direct tax is laid, as was done in the beginning of the late war, and was the case shortly after the organization of our Govern- ment, the amount of money to be raised is first ascertained, then the population of each State is taken, according to the last census, after which it is a simple matter of division to find out the proportion or quota due from each State. A statute is then passed, declaring that each State shall pay to the Federal Government so much money, according to their ascertained proportion of the whole amount which it is proposed to raise. But suppose the State does not pay it ? In re- gard to this it may be said that in all instances where a direct tax has been laid, except in the case of some of the States engaged in the late rebellion, the obligation has been promptly as- sumed, and each State has taken its own means of collecting the sum for which it was assessed. THE POWER OF TAXATION. 237 This amount was then paid into the national lectuek v. treasury. But during that contest the States ^'"^^'^ ""■ that did not sympathize with tlie loyal side did not want to help the Federal Government by- raising money for its use. Congress, therefore, passed a law appointing connnissioners, whose duty it was to go into those States as fast as they were subjugated, following up the armies, and ascertain the value of the landed estate as reported by their own tax officers. The assess- ment was then levied against this real property, and in many cases it was sold to pay the amount required. Growing out of these transactions extensive controversies have arisen and many suits to determine whether the provisions under which those things were done were such as to make the sales valid. Under the provisions already quoted the ques- tion then came up as to what is a " direct tax," and also upon what property it is to be levied, as distinguished from any other tax. In regard to this it is sufficient to say that it is believed that no other than a capitation tax, of so much per head, and a land tax, is a direct tax within the meaning of the Constitution of the United States. All other taxes, except imposts, are properly called excise taxes. Direct taxes, within the meaning of the Constitution, are only capi- tation taxes as expressed in that instrument, and taxes on real estate.^ J Sprinricr v. United Slates, 102 U. S. 58G. Mr. Justice Chase said in 1796: "I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes con- 238 LECTURES ON CONSTITUTIONAL LAW. 1.BCTURE V. An excise tax is one which is assessed upon Excise tax. some article of personal property, or money, or something which is exhausted in the use. It is one which from its essence and nature must be paid in fact by the buyer, or the last man who buys and uses the property, because whoever has it at the time when the tax is levied upon it adds that amount to the selling price when he comes to dispose of it, until the property is con- sumed. It is a tax upon consumption. It was at one time doubted by some whether the late income tax was an excise or a direct tax, and a case to test this question was taken to the Supreme Court of the United States. It was, however, abandoned. It is now entirely clear that the former view was the correct one, and A tax on incomes that the amouut asscsscd upon incomes was in an excise tax. ^^^^ nature of an excise tax. The next words of the phrase under discussion are " duties, imposts, and excises." ^ The first templated by the Constitution, are only two ; namely, the capitation or poll tax, simply without regard to property, profession, or any other circumstance ; and a tax on land. I doubt whether a tax by a general assessment of personal property within the United States is included within the term direct taxes." The same opinion was expressed by Mr. Justice Paterson. In that case it was decided that a tax on carriages was not a direct tax. Hylton v. United States, 3 Dall. 171, 175. A tax on the income of an insurance company has been held not to be a direct tax, but a duty or excise. Pacific Ins. Co. v. Soule, 7 Wall. 433, 444. A tax of ten per centum upon the circulation of State banks was held not to be a direct tax. Veazie Bank v. Ffuno, 8 Wall. 533. 1 Paterson, J., said: "What is the natural and common or technical and appropriate meaning of the words duty and excise, it is not easy to ascertain. They present no clear and precise idea to the mind. Different persons will annex different significations to the terms." Hylton v. United States, 3 Dall. 171, 17G. THE POWER OF TAXATION. 239 two, SO far as this Constitution is concerned, lecture v. maybe considered as implyino; the same thins::, "^ ^'^^ °" '"°°™®* •/ r J n c" an excise tax. except that the word " imposts " means more properly a duty or tax upon goods imported from abroad, whereas there might be exports, a tax upon which would be a duty. The Constitution, however, in another place forbids the Federal Government levying any tax or duty upon arti- cles exported from any State (Art. 1, sec. 9, par. 5.), so that there can be no tax upon exports, and the words " duties " and " imposts " practi- cally mean the same thing. "All duties, imposts, and excises," or all taxes uniformity of that are not direct, are required to be " uniform t^^*'^^^"- throughout the United States." What is meant by that word ''uniform" has become a matter of very great importance, because the States have begun, of late years, to adopt that principle in their constitutions, and to require that their taxes shall be levied with regard to the restric- tion of uniformity. So that the question has frequently arisen as to what was a proper defini- tion of that term. Does it mean that all property that is taxed shall be at the same rate or ratio ? That would perhaps be a natural inference at first thought. That is, if horses, wagons, and land are taxed, then the same per cent of value must be assessed upon the horses and wagons as upon the land. The result of tliis principle would be that, as a very heavy rate is imposed upon whiskey, any other article upon which it is thus proposed to raise a revenue would have to be taxed in the 240 LECTURES ON CONSTITUTIONAL LAW. i.KCTURE V. same high proportion. This rate has frequently Uniformity of ^ ^^^^^^j^ ^^ ^^^^ hundred per cent of its taxation. '■ original value — much larger than most articles could bear. The greater part of the money that is raised to support the Government by taxation is raised by duties upon imports from abroad. But the articles which are imported are taxed very dif- ferently. For example, silk may be taxed at sixty cents on the dollar of its value. Coffee may be taxed ten cents on the dollar of its value. Are these uniform ? If they are not, then very few of our tax laws are valid. We are, however, relieved from any difficulty in regard to that question, by the peculiar lan- guage in which the provision is stated, " but all taxes, imposts, and excises shall be uniform throughout the United States." They are not required to be uniform as between the different articles that are taxed, but uniform as between the different places and different States. Whis- key, for instance, shall not be taxed any higher in the State of Illinois, or Kentucky, where so much of that article is produced, than it is in Pennsylvania. The tax must be uniform on the particular article ; and it is uniform within the meaning of the constitutional requirement if it is made to bear the same percentage over all the United States. That is manifestly the meaning of this word, as used in this clause. The framers of the Con- stitution could not have meant to say that the Government, in raising its revenues, should not THE POWER OF TAXATION. 24 be allowed to discriminate between the articles lectlkk v. which it should tax. Unifomityof taxation. This conclusion has come to bo accej^ted as the well-settled construction of this clause in regard to uniformity, and it bothers the State authorities now more than the Federal officers. The people in the States are every day resisting the collection of taxes, upon the ground that they are not uniform, although imposed under their own statutes. The better opiuion seems to be that what is meant by the use of that term in such statutes is not uniformity as to place. They operate only upon one State, and when they use the words " taxes must be uniform," they mean uniform with regard to the subject of the tax. This has been productive of some trouble. A State might wish to tax whiskey and tobacco higher, than a man's plough or corn-field ; and this might be prevented by confining the meaning of this lanei;uaQ:e within too narrow bounds. The difficulties in the way of this construction have, however, been very largely obviated by the mean- ing of the word " uniform," which has been adopted, holding that the uniformity must refer to articles of the same class. That is, different articles may be taxed at different amounts, pro- vided the rate is uniform on the same class everywhere, with all people, and at all times. Take, for instance, the case of a license. If everybody in any particular class is required to pay a certain license, — if all lawyers are taxed $25 a year, if all merchants are taxed $100 a 242 LECTURES ON CONSTITUTIONAL LAW. lecturk V. year, if all saloon-keepers are taxed $200 a year, taxatiou**^^ ° — then it is uniform, because it imposes the same burden upon every man of the same class, and who comes within the circle of its well-defined limits. This interpretation may be a little strained, but probably it has arisen from the necessity of enabling the Legislature to levy taxes according to common sense, if not alto- gether with regard to strict uniformity. Limits of the tax- One of the most interesting, as well as impor- log power. tant, of tlic brauclies into which this subject naturally divides, is that in regard to the limits of the taxing power. In this country it is every- where accompanied by the necessity that the tax shall be imposed for a public use. No State government, nor that of the United States, nor any other authority professing a regard for the rights of the people, is at liberty to take money out of their pockets for any other than a public purpose. Whenever it can be discovered that a tax is levied for something that cannot properly be called such, it may be successfully resisted by all the measures that the law allows in courts of justice.^ 1 " The power to tax is the strongest and most pervading of all the powers of government, reaching directly or indirectly to all classes of people. It was said by Chief Justice Marshall, in the case of 3IcCuUnrh v. Maryland, 4 Wheat. .^16, 431, that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent imposed by the United States on the circulation of all other banks than the national banks, drove out of existence every State bank of circulation within a year or two after its passage. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlim- THE POWER OF TAXATION. 243 It is very difficult in a general way, in a lecture v. government like ours, to say in any particular p^^^^ ^^^^^ instance where an act of Congress has authorized a certain tax to be levied, under which any money has been collected, paid into the treasury of the United States, and distributed under other acts of the legislative branch by its proper offi- cials, has been levied or collected for any other than a public use. Sometimes the use may not be approved by sound public sentiment ; never- theless it is necessary to give the legislative bod}^ the benefit of the presumption that they acted in the exercise of a reasonable discretion, when they profess to have levied the tax for a public purpose. In some cases, however. States, counties, and municipalities, w^hich have a subordinate right of taxation, have so far departed from that prin- ciple that taxes levied by them have been en- joined. Perhaps the greatest number of contests which have originated in regard to this subject have had relation to taxes imposed for the pur- pose of assisting in the construction of railroads. ited wealth and prosperity to the other, if there is no implied limi- tation of the uses for wliich the power may be exercised. To lay with one hand the power of the Government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legis- lative forms. . . . We have established, we think beyond cavil, that there can be no lawful tax which is not laid for a public pur- pose.'''' Loan Association v. Topeka, 20 Wall. (555, 664. Taxes are burdens or charges imposed by the Legislature upon persons or property to raise money for public purposes. Cooley on Constitutional Limitations, 479. 244 LECTURES ON CONSTITUTIONAL LAW. Lkcture V. Taxes levied for public usea. Mouicipal taxa- tion. If a private individual should ask the municipal- ity of Washington to levy a tax to enal)le him to build a road from his house out to the Soldier's Home, in the outskirts of the city, which, wlien completed, should belong to him, and across which he could put up gates at any time at his own pleasure, everybody would see at once that it was not for public but for private use. There is not a judge in the District of Columbia who would not enjoin the collection of a tax so assessed and levied upon the people. On the other hand, a tax levied to keep up the streets and roads in the city and county, which everybody travels and uses, is a tax for a public use ; and although there has been a great deal of litigation in the courts for the purpose of getting rid of these taxes, and stubborn resist- ance made to their collection, yet it has been upon the ground of their alleged inequality or improper levy or assessment ; not that the Gov- ernment had not the authority to levy them for such public thoroughfares. But the main difficulty arises when we come to the case of a corporation, which has built a road by the expenditure of its own funds. That road so built belongs to it, and it has a right to compel everybody who travels over it or uses it to pay for such service or privilege. This fare which it receives is its compensation therefor, and goes into its hands for its own purposes, whether it be large or small in amount. It is true that the property which has thus come into existence belongs to the corporation in one sense, THE POWER OF TAXATION. 245 and yet in another it is one in which the public lecturk v. have an interest. The people, by whom the ^J;;'"'^^ ''^ right to construct such a road nuist first have been granted, are entitled to its use as a high- way under reasonable regulations for the pro- tection of the rights of all persons concerned. The corporation cannot refuse to carry any per- son who properly presents himself to be carried. It must maintain the usual and suitable means of doing a carrying business. It is generally authorized to exercise the right of eminent domain in order to acquire the land on which its ro;id may be built, and although it must pay a reasonable compensation therefor, yet it is a public function which cannot be exercised unless it be authorized by some constitutional provision or the act of some legislative body. It is, there- fore, said in some senses to be a public body, and proposals to take stock in it by a State or a county are one of the great sources from which controversies arise. Many such political bodies, in their great enthusiasm for public improvements, have over- burdened themselves with obligations for the purpose of assisting in the construction of rail- roads, which they afterwards found it almost impossible to meet when the day of payment arrived. So they sometimes attempted, more or less directly, to repudiate these debts, and one of the ways in which they tried to do this was by alleging that the assessment of a tax for their liquidation was void, because it was not for a public purpose. 246 LECTURES ON CONSTITUTIONAL LAW. lkcture V. They said, in effect, that the corporation re- Muuicipai taxa- (.gjy^j ^jj^^ij. mo^ey, Collected its tolls, and appro- priated the profits growing out of its business to its own private uses, such as the payment of dividends to its stockholders, or the improve- ment of its plant. On the other hand, the municipal body alleged that the road could not have been built without the power of eminent domain, and even when it was built it was not permitted to retain absolute control of its man- agement ; that it was subjected to certain regu- lations as to the carriasre and accommodation of passengers, as well as its rates therefor, and could not reject one man and carry another at its own pleasure, and that it was also bound to keep its road in good order ; that it was not, in fact, for all purposes private property, , but possessing a public character was subject to public supervision.^ It is now pretty well settled that building a railroad with money collected by taxation, by a State, county, or town, is an appropriation of such a tax for a public use, and therefore a law imposing or authorizing it is valid. On the other hand, a contribution to build a saw mill, or a steam mill, or anything of that kind, was not made for a public use, and a tax levied for such purpose was void.^ The same question has also been discussed and decided in several other similar cases. " It must be for a public object, 1 Pittsburgh & Connpllsville Bailrnad Co. v. Southwestern Penn- sylvania Railway Co., 77 Penn. St. 173. 2 Loan Association v. Topeka, 20 Wall. 655. THE POWER OF TAXATION. 247 clearly superior and parairiouiit, or to which lkctuke v. preference is expressly given by law or the Con- ^j^^'^' '*''''''' ^''''^' stitution, in order to make the right clear to seize and condemn land." ^ The United States being a limited form of government, one of the restrictions to which it is subject is in regard to its power to levy taxes. The States may levy them for a great many purposes for which Congress cannot, because to the States belong all of the powers not delegated to Congress.^ Hence, while the Constitution of the United States has nowhere been amended by any limitation of its taxing power, there has scarcely been a State constitutional convention in half a century that has not imposed some restriction upon the power of the State to levy taxes. There is, also, another matter concerning this Limitations of power of taxation that deserves attention.. It congLT^'"*^ will be noted that the Constitution of the United States has placed several limitations upon the general power, and that some of them are im- plied. One of its provisions is that neither the President of the United States (Art. II, sec. 1, par. 6), nor a judge of the Supreme or inferior courts (Art. Ill, sec. 1), shall have his salary diminished during the period for which he shall have been elected, or during his continuance in office. It is very clear that when Congress, during the late war, levied an income tax, and 1 United States v. CMai(/o, 7 How. 185, 195. See also Pumpelly V. Green Bay Co., 1-3 Wall. 166. * Art. X, Amendments to Constitution. 248 LECTURES ON CONSTITUTIONAL LAW. lkctuuk V. placed it as well upon the salaries of the Presi- i.i.niutions of j^.^|. ^^^j ^j^^ iudo'es of tlic coiii'ts as those of taxmj; jxjvver of . (Vmgi-oss. other people, that it was a diiuiiiutioii of them to just that extent. The judges were patriotic, however, and did not raise the question, although Chief Justice Taney filed with the Clerk of the Supreme Court an opinion stating that it was unconsti- tutional and ought not to be paid. Yet every- body did pay their taxes, and possibly they could not have helped themselves if the}^ had tried, because the accounting officers would have de- ducted the amount of the tax from the salary before paying it. Even after the war this tax of five per cent upon these salaries was deducted and paid. But about that period Mr. Bout well, who was then Secretary of the Treasury, of his own accord took up the question, investigated it, and came to the conclusion that this tax was void so far as these officers were concerned. He, therefore, returned the money to the President and to each of the judges, which had been paid under that statute, and this they naturally thought was a very fair judicial construction of the constitutional provisions relating to that subject.^ 1 A tax upon the salary of an officer, to be deducted from what would otherwise be payable as salary, is a diminution of his com- pensation ; and in the cases of the President and judges of the Supreme Court and inferior courts of the United States, such dimi- nution would fall within the prohibition of the Constitution, if the act levying the tax was enacted during the official term of the Pres- ident or of the judge affected thereby. See Opinion of Attorney General Hoar, October 23, 1869, 13 Opinions Attorneys General, 161. But it is also well settled that an act reducing the compensation THE POWER OF TAXATION. 249 But the main limitations upon the power of lkcture v. taxation, found in the Constitution of the United ''""'^'^tions on ' taxiiijj power of States, are upon the States. One of these is that the states. " no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." Art. I, sec. 10, par. 2.^ The several States just after the close of the Revolutionary War commenced with almost a fury to tax everything belonging to any other State that came within their jurisdiction, and what is known as the commerce clause of the Constitution, which declares that "Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes," was the result of the neces- sity of preventing each individual State from embroiling itself in all sorts of quarrels in re- gard to its commercial relations with its neigh- or salary of a statutory officer is valid in the absence of any consti- tutional prohibition, although he may have entered upon his term of service, and that such an act violates no contract rights. That there is no express or implied contract for the permanence of the salary, is shown by the constitutional provision making an excep- tion of certain officials, such as the judges. Cases cited in Black on Constitutional I'rohibitions, §§ 90, 97, pp. 116, 117. But after services have been rendered under a law, resolution or ordinance, which fixes the rate of compensation, there arises an implied con- tract to pay for this service at that rate. This contract is a com- pleted contract. Its obligation is perfect and rests on the remedies which the law itself gives for its enforcement. Fisk v. Jefferson Police Jimj, 116 U. S. 131. 1 It is well settled that the States cannot exercise this authority in respect to any of the instrumentalities which the General Gov- ernment may create for the performance of its constitutional func- tions. Axistin V. Aldermen, 7 Wall. 694, 699. 250 LECTURES ON CONSTITUTIONAL LAW. Lecture V. Limitations on taxing power of the States. bors, and going on to pass statutes levying taxes of one kind or anotiier upon everything brought within its borders. The result of this course would have been clearly disastrous to the whole people, as well as to the Federal Government that it was proposed to erect, in place of the Confederation under which the Colonies had emerged from the perils of war.^ The additional restriction relating to this sub- ject, besides that found in the commerce clause, is that above quoted, prohibiting any State, with- out the consent of Congress, from laying any imposts or duties on imports or exports. This language implies that they may do it if Congress consents. Such exceptions granted by that body have been of rare occurrence. In the early days there were a few statutes passed, giving the con- sent of Congress to the imposition of limited duties in order to enable the States to improve their harbors. The same clause of the Constitution also ex- cepts by its specific terms such as may be abso- lutely necessary for executing the inspection laws of the particular State, but that has never amounted to much, and the only question of any importance that has ever arisen about the taxa- 1 The author of the Federalist, No. 7, refers to the situation of New York, as compared with that of Connecticut and New Jersey, as affording an example of the opportunities which some States had of rendering others tributary by commercial regulations ; and said that New York would neither be willing nor able to forego the advantage of levying duties on importations, a large part of which must necessarily be paid by the individuals of the other two States in the capacity of consumers. THE POWER OF TAXATION. 251 tion of imports or exports has been whether the lecture v. words applied to articles carried, between the ,^'""*'"'^'*""*"", ■•■ ^ tiixiii;? power of States. tlie States. It has been held ^ that the word " imports," imports, as used in this clause, did not apply to articles * imported or transported from one State into another, and that they were not imports or ex- ports within the meaning of the Constitution ; that it only referred to articles imported from foreign countries into the United States. The latter was a case in which Alabama had passed a statute taxing all the whiskey imported into the State. It was insisted that it was an im- port, and consequently its tax in that way was forbidden by the clause now under discussion. The court, however, held that it was not an import, and the tax was not void for that reason. A similar tax for the same rate or amount had been levied upon all whiskey produced in Ala- bama, and the statute was, therefore, not void because there was no discrimination against the commerce of any other State. An important question was also raised in the The cotton tax. Supreme Court of the United States in regard to the cotton tax. During the war a tax was imposed upon that staple, and about twenty mil- lions of dollars were raised by its means. Its collection was resisted on the ground that it was a tax upon exports, and 'the argument w^as that, as four-fiftlis of all the cotton raised in the coun- try was in fact exported, therefore a tax on 1 Woodruff V. Parham, 8 Wall. 123 ; Hinson v. Lott, 8 WalL 148. commerce. 252 LECTURES OX CONSTITUTIONAL LAW. lkcture V. cotton was necessarily a tax on exports. The The cotton tax. .^^.^jj^^^t on the othcr side was that when the cotton was actually exported, then any amount levied upon it would be a tax upon exports, but ^ that it could not be assumed that all the cotton raised in this country was to be exported. Tax on interstate The Supreme Court was divided upon that question, and it stood in that way until the October Term, 1885,^ when the subject was again discussed, and the following language used : — " Goods, the product of a State, intended for exportation to another State, are liable to taxa- tion as part of the general mass of property of the State of their origin, until actually started in course of transportation to the State of their destination, or delivered to a common carrier for that purpose ; the carrying of them to, and de- positing them at, a depot for the purpose of transportation is no part of that transportation. " When goods, the product of a State, have begun to be transported from that State to another State, and not till then, they have be- come the subjects of interstate commerce, and, as such, are subject to national regulation, and cease to be taxable by the State of their origin.'* This principle was afterwards reasserted and affirmed.^ There is another restriction of the same class that may be noted in tfiis connection, and which has been the subject of a great deal of comment in the Supreme Court of the United States. It 1 Ooe V. Errol, 116 U. S. 517. 2 Turpiii V. Burgess, 117 U. S. 504. THE POWER OF TAXATION. 253 is to be found in the following language : " No lecturk v. State shall, without the consent of Congress, lay '^'^^^ «" "'t«"*a*« ' o ' ./ commerce. any duty of tonnage." Art. 1, sec. 10, par. 3. The meaning of this expression, as may be Tonnage tax. gathered from the numerous decisions in that court, undoubtedly is, that vessels coming from abroad, or engaged in navigation among the States, or even if plying entirely within the boundaries of and owned by citizens of a single State, shall not be taxed, as vessels, for the privilege of navigating the inland waters of the country, or coming into any of its ports. In State Tonnage Tax Cases,^ the court held that " although taxes levied, as on property, by a State, upon vessels owned by its citizens, and based on a valuation of the same, are not pro- hibited by the Federal Constitution, yet taxes cannot be imposed on them by the State at so much per ton of registered tonnage." Such taxes are within the prohibition of the clause under consideration. The word " tonnage " was used by the framers of the Constitution, because at that day and time it was the customary mode of measuring the value of a ship. A vessel was said to be of so many tons burden, which meant that it Avas worth so much money, carried so much freight, and, therefore, the method generally adopted of imposing a tax upon its tonnage was the readiest way to fix the amount which that species of property should pay. But the Constitution for- bids any tonnage tax, and so the Supreme Court 1 12 Wall. 204. 254 LECTURES ON CONSTITUTIONAL LAW. Lecture V. has been Called upon over and over again to onnagetax. (Jecide what that means. After much discussion it has about settled down to mean this : that if a man living in Louisiana owns a steamboat, it is liable to be taxed like any other property that he may pos- sess there, and if a tax is levied upon it, measured by its capacity, which is called tonnage, that is not a tonnage tax. But when a vessel enters the port of New Orleans from abroad, or from some point up the river, and lands at a wharf, or moors out in the middle of the stream, and the city or State demands that it shall pay a tax for every time that is done, it is in fact a tonnage tax within the meaning of the constitutional pro- vision, because it is a tax on the privilege of navigating the river and entering the harbor. It cannot be evaded by not measuring it by the ton, or by calling it by some other name. A reasonable charge may be made for services actually rendered,^ but this great privilege of the 1 "A charge for services rendered, or for conveniences provided, is in no sense a tax or a duty. It is not a hindrance or impediment to free navigation. Tlie prohibition to the State against the imposition of a duty of tonnage was designed to guard against local hindrances to trade and carriage by vessels, not to relieve them from liability to claims for assistance rendered and facilities furnished for trade and commerce. It is a tax or a duty that is prohibited : something imposed by virtue of sovereignty, not claimed in right of proprietor- ship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service. . . . What was intended by the second clause of the tenth section of the first article was to protect the freedom of commerce and nothing more, . . . and therefore the prohibition should be so construed as to carry out that intent." Packet Co. v. Keokuk, 95 U. S. 80, 84, 87. In a later case the Supreme Court said that a duty of tonnage is THE POWER OF TAXATION. 255 free navigation by all persons of the waters of lecture v. this country is thus secured against interference """^^'^ on the part of the individual States of the Union.^ In a recent case decided in 1880,'^ may be found a full review of all the principal cases upon this sul>ject, together witli a full exposi- tion of the doctrines upon which this clause of the Constitution rests. The State of Louisiana had required by a statute that each vessel pass- ing a quarantine station should pay a certain fee for examination as to her sanitary condition. This was held to be a part of the quarantine system, and a compensation for services rendered to the vessel, and not a tax within the meaning a charge for the privilege of entering or trading or lying in a port or harbor, while wharfage is a charge for the use of a wharf. They are not the same thing. Transportation Co. v. Parkarsburg, 107 U. S. G91. The fact that the rates of wharfage charged are graduated by the size or tonnage of the vessel is of no consequence, and does not make it a duty of tonnage in the sense of the Constitution and the acts of Congress. Cannon v. New Orleans, 20 Wall. 577 ; Packet Co. V. CatU'ttshurg, 105 U. S. 559. 1 The State of Illinois legislated for the construction of locks on the Illinois River, and created a Board of Commissioners who prescribed certain tolls for the passage of vessels, which were fixed at so much per ton according to the tonnage measurement of the vessels and the freight carried. The court held that this was simply a mode of fixing the rate according to the size of the vessel and the amount of property carried, and was in no sense a duty of tonnage within the prohibition of the Constitution. It said : " A duty of tonnage within the meaning of the Constitution is a charge upon.a vessel, according to its tonnage, as an instrument of com- merce, for entering or leaving a port, or navigating the public waters of the country- ; and the prohibition was designed to prevent the States from imjiosing hindrances of this kind to connnerce carried on by vessels." Huse v. Glover, 119 U. S. 543, 549. 2 Morgan'' s Steamship Co. v. Louisiana Board of Health, 118 U. S. 455. 25G LECTURES ON CONSTITUTIOXAL LAW. lectukk V. of the Constitution concerning tonnage taxes Tonnage tax. i^nposed by the States. Implied liinita- In addition to tlie specific restrictions which poTer!'"''*'''''"" ^^6 fix^^ ^y constitutional or statutory authority, there are implied limitations upon the power of taxation which grow out of the nature of things. It was a terse statement of a great truth which was made by Chief Justice Marshall in the great case, in regard to the United States Bank,^ that the power to tax, where unlimited, involves the power to destroy. This may at first appear to have been a rather strong statement, but it was not. Any government or municipality possess- ing unlimited power to tax any property, any business, or any man, can drive that property, that business, or man out of the community. This is true, because it can make the tax equal to all that he earns, or all that he is capable of earning, or equal to all the property that he has. So that the Chief Justice was not stating it too strongly when he said that the unlimited power of taxation was the power to destroy.^ This expression was used in reference to the United States Bank, when the State of Maryland undertook to tax its circulation ; for if the State could tax that part of its business at all, it could drive the bank out of the State, at least so far as circulation was concerned. Then if the State taxed the circulation, it could tax the deposits 1 McCuUoch V. Maryland, 4 Wheat. 310. 2 The right of taxation, where it exists, is necessarily unlimited in its nature. It carries with it inherently the power to embarrass and destroy." Austin v. Aldermen., 7 Wall. 694, 699. THE POWER OF TAXATION. 257 of the bank, and could thus force it to withdraw lecture v. entirely from its jurisdiction. Tliat was one of ;."'!'"«' !;"';«''-. J J tionsto the taxing the great cases arising early in the history of power, the establishment of our institutions, in which very important constitutional questions came up for consideration, which it was essential to the future peace and prosperity of the country, as well as to insure the perpetuity of the new Gov- ernment, then only in its experimental stage, should be wisely and permanently settled. It was decided in that case, that the State had no power to tax the bank, because it was the instru- ment of the United States, and a State could not tax anything which the United States required for its use in the administration of the Govern- ment, or " any of the constitutional means employed by the Government of the Union to execute its constitutional powers." ^ It was also held that the bonds of the United income from States could not be taxed, such a power being vTited^stat'es not inconsistent w^ith the constitutional power of the taxable by states. Government to borrow money, as enabling the State to exclude such securities from its mar- kets.^ So they are not taxed to-day, and cannot be taxed by a State, even indirectly by a tax on valuation.^ So also of United States notes, 1 See McCulloch v. Maryland, 4 Wheat. 316. The principle of exemption is, that the State cannot control the National Govern- ment within the sphere of its constitutional powers, for there it is supreme, and cannot tax its obligations for payment of money issued for purposes within tha?t range of powers, because such tax- ation necessarily implies the assertion of the right to exercise such control. - Bank of Cimmrrcp v. Xeio York, 2 Black, 620. 3 Bank Tax Case, 2 Wall. 200. 258 LECTURES ON CONSTITUTIONAL LAW. Lecture V. altlioiigli issucd as currencj, they are yet na- incomefrom tional obligations and exempt from State taxa- boiuls 01 tno ^ <-' ^ United States not tion.^ Side's o^ United Neither can any State authority tax the sala- states officers not ries or emoluments of officers of the United taxable by States. c>,, ,9 <• Xii-i.-i.i- n j States/ or oi any oi the mstitutions now called national banks ; but Congress put into their charters, originally, a provii^ion permitting the shares to be taxed, at the home of the person who owned them, by including them in the valuation of the personal property of the person or corporation to whom they belonged, at the place where the bank was located. (An act to provide a national currency, secured by a pledge of the United States bonds, and to provide for the circulation and redemption thereof. Ap- proved June 3, 1864.^) To guard against the destruction of the banks, however, by the States, or unjust discrimination even in the exercise of that privilege, it was declared by that statute that such taxes shall not exceed the rates im- posed upon the shares in any of the banks organized under the authority of the State 1 Bank of New York v. Supervisors, 7 Wall. 26. Chief Justice Marshall said : " The tax on Government stock is thought, by this court, to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently repugnant to the Constitution." Weston v. City of Charleston, 2 Pet. 449, 469. 2 The compensation of an officer of the United States is fixed by a law made by Congress. It is in its exclusive discretion to declare what shall be given, and any law of a State imposing a tax upon the office, diminishing the recompense, is in conflict with the law of the United States which secures the allowance to the officer. Dobbins v. Erie Coiinty Commissioners, 16 Pet. 435. 8 13 Stat. c. 105, § 41, pp. 99, 112. THE POWER OF TAXATION. 259 where such association was located, or upon lecturk v. other moneyed capital in the hands of indi- f'^'"'^^ '""'■'* •^ ^ States olhcers uot viduals. taxable by Stateii, The shareholder is thus protected from undue impositions by providing that everybody else, under like circumstances, must be taxed as much as he is, or in the same proportion. This is fully considered in McCulloch v. Maryland, supra} See also Oshorn v. United States Bank^ and the case of Weston v. Charleston, supra^ in which the city council of Charleston luidertook to tax Government bonds in the hands of some of its citizens. It was there held that this could not be done, because " the American people have conferred the power of borrowing money on the Government, and by making that Government supreme, have shielded its action in the exercise of that power, from the action of the local gov- ernments. The grant of the power, and the declaration of supremacy, is a declaration that no such distraining or controlling power shall be exercised." A great many decisions have been made to set- tle this doctrine. The States have been fertile in constantly devising many means to tax banks, if possible, and the recent volumes of reports of the Supreme Court are full of cases having relation to such attempts, and the discussions which they have elicited. One case which may be referred to in this connection is that of the People V. Weaver} The State of New York passed a 1 4 Wheat. 816. » 2 Pet. 449. 2 9 Wheat. 738. * 100 U. S. 539. 260 LECTURES ON CONSTITUTIONAL LAW. Lecture V. law declaring that whenever a man listed his sSe1'offic^-s not personal property for taxation, he might except taxable by States, out of it an amount equal to all the debts he owed, which should not be taxed. The Legis- lature then passed another law stating that the first should not apply to shares of national banks. This the courts held to be unconstitutional. If the owner of one or more shares in a national bank was not to be allowed to deduct what he owed from the amount of his taxable property, in which those shares were included, then other persons could not be allowed to take out what they owed in the taxation of their personal property. Indiana unsuccessfully tried the same tiling,^ and there have been many attempts by different States to tax banks in violation of this clause of the Constitution, and of the statutes of the United States. See also Cummings v. The Merchants National Bank? Tax upon travel- There is another rather curious instance where ^^^' the States have been forbidden, by the decisions of the courts, to use the power of taxation. It was first discussed in the case of Crandall v. Nevada,^ where the principle was declared that every man in this broad country had a right to travel all over it, for purposes of business or pleasure, regardless of State lines, and that no state could levy a tax upon him for that privi- lege. The State of Nevada attempted to com- pel certain transportation companies within its 1 Evansville Bank v. BriUnn, 105 U. S. Z12. 2 101 u. S. 153. a (5 Wall. 35. TPIE POWER OF TAXATION. 261 boundaries to make a report of every passenger lfxture v. that thev carried through the State, for each of '^^'^ "p^*^ '^^^■^'- " _ <^ ' lers. which they were required to pay one dollar. Of course this was practically a tax upon the pas- senger, because it was simply added to his fare by the companies. In one instance the payment was resisted, and the matter came up in the usual way to the Supreme Court of the United States, where the statute was declared to be unconstitutional and void. If this had been the extent of the effect of the declaration of this principle, it would have been comparatively unimportant, for the total amount collected by the State of Nevada was not very large ; but it so transpired that the State of New Jersey had been for many years collecting a similar tax upon every passenger who passed through that State on a railroad, and as the traffic was very heavy the amount was correspondingly impor- tant, almost enough in fact to pay the expenses of the State government. But that tax col- lapsed with the anouncement of that decision, and no attempt has been made to collect it since .^ 1 Another question which has been the subject of contention was whether the legislature of a State could so relinqiiisli the right to impose taxes on property within its jurisdiction that it could not be revoked by a future one. One of the first cases in which this was considered was State of Neio Jersey v. Wilson, 7 Cranch, 104, holding that a legislative act declaring certain lands which should be purchased for the Indians should not, thereafter, be subject to any tax, constituted a contract which could not be rescinded by a subsequent legislative act. Bradley, J., in Given v. Wright, 117 U. S. 648, 655, says that the Supreme Court does not feel disposed to question that decision, although it was held that by acquiescence 262 LECTURES ON CONSTITUTIONAL LAW. Lecture V. for a long period the right to the privilege might be lost. But this Tax upon travel- construction will be taken strictly against the grantee, 'ers. 'I'he power of taxation is an attribute of sovereignty and is essen- tial to every independent government. The whole cumumnity is interested in retaining it undiminished, and has a right to insist that its abandonment ought not to be presumed in a case hi which the deliberate purjiose of the State to abandon it does not appear. Delaware Railroad Tax, 18 Wall. 20(5. An illustration of this rule is found in Vicksburg &c. Railroad Co. v. Dennis, 116 U. S. 665, where the road and fixtures of the company, by its charter, were exempt from taxation for ten years after its completion, but this was held not to exempt the road and fixtures from taxation before its completion. To support the exemption, there must be an adequate considera- tion, otherwise it is a mere spontaneous concession on the part of the legislature, not constituting a contract, and may be revoked at will. Rector of ChrisVs Church v. County of Philadelphia, 2^ How. 300. NOTES UPON LECTURE V. Under the head of the power of taxation Mr. lkcturk ¥. Justice Miller groups two distinct subjects in this lecture: (1) The powers confided by the Constitution to the United States ; and (2) the powers which that instrument withholds from the States. He has also alluded to (3) cases in which the courts of the United States interfere to compel the imposition of local taxes in the States. The cases under each of these heads are nu- merous. For many years scarcely a volume of the reports has been issued which has not con- tained one or more of them. Little or no good could come from an extended examination of them ; indeed such an examination would be impracticable within the limits to which this note is necessarily confined. It will be sufficient to briefly refer to a few of the leading cases, some of which Mr. Justice Miller has not noticed. 1. The Federal Power of Taxation. In an early case the question was raised Federal power of whether Congress had the power to tax the Dis- ^"^^^'^^ trict of Columbia ; and it was held that the power to levy and collect taxes, duties, imposts, and excises was coextensive with the territory 263 264 LECTUKES ON CONSTITUTIONAL LAW. lectuue v. of the United States.^ But, if a public enemy falttioli^'"'^^"^ °^ conquers and occupies a portion of the United States, the portion so occupied becomes foreign territory, so far as revenue laws are concerned ; and the subsequent restoration of the authority of the United States over it does not change the character of past transactions.^ On the other hand, the conquest and military occupation of foreign territory by the United States leaves it foreign country for revenue purposes.^ The exercise by Congress during the civil war of its power to impose direct taxes upon real estate within the States did not create a lia- bility, upon the part of the States in which the land was situated, to pay the tax.^ The power to tax was exercised upon the property of pri- vate individuals within the State. In the great taxation during and immediately after the civil war, questions were sometimes raised whether a particular tax was a direct tax or an impost or excise. A succession tax was held to be the latter.^ The provision that duties, imposts, and ex- cises shall be uniform throughout the United States is complied with if the tax operates with the same effect in all places where the subject of it is found. There is no want *of uniformity simply because the thing taxed is not equally distributed in all parts of the United States.® 1 Longhhorotigh v. Blake, 5 Wheat. 317. 2 United States v. Rice, 4 Wheat. 246. 3 Fleming v. Page, How. 603. * United States v. Louisiana, 123 U. S. 32. 6 Seholey v. Bexu, 23 Wall. 331. 6 Head Money Cases, 112 U. S. 580. NOTES UroX LECTURE V. 2G5 There are some things which are not proper lecture v. siibiects of Federal taxation, as, for instance, ^®^'^''.^' p*^"'^'' "^ •^ ... taxation. the revenues of a municipal corporation.^ 2. Restraints iqoon State Taxation. The State can authorize the taking of indi- Restraints upon vidual property by taxation only for public uses faxation^^"^ ^^ and purposes. Hence it cannot confer upon its municipal corporations power to create debts to be paid by taxation, when the money is to be used for private objects.^ It cannot part with its general power to tax, because that power is essential to the exercise of its sovereignty and the performance of its duties. But it can by contract part with a por- tion of this sovereign power for a consideration which it accepts as sufficient. When, in incor- porating a private corporation, the State exempts the property of the corporation from taxation, or limits the amount of taxation to be imposed upon it, subsequent legislation, imposing a higher rate of taxation than the charter permits, is in- valid.^ But such legislation is looked upon with jealousy, and construed strictly by the courts. The immunity will not be recognized, unless granted in terms too plain to be mistaken.'* It is a privilege belonging only to the corporation named, and will not pass to its successor, unless 1 United States v. Bailrond Company, 17 Wall. 322. 2 Cole V. La Grange, 113 U. S. 1, and cases cited in the opinion. 8 Neio Orleans v. Houston, 119 U. S. 205. * Chicago & Burlington Railroad v. Guffey, 120 U. S. 569; 8. C. 122 U. S. 561. 206 LECTURES ON CONSTITUTIONAL LAW. Lkctuhk V. Restraints upon Stute power of taxation. the intent of the statute thereto is clear and express.^ The power of making such a contract is con- fined to private corporations. The power of taxation on the part of a municipal corporation is not private property, or a vested right of prop- erty in its hands. The conferring of such power is an exercise by tlie Legislature of a public and governmental power, which cannot be imparted in perpetuity, and is always subject to revoca- tion, modification, and control, and is not the subject of contract.^ Real estate and personal property of the United States situated within the limits of a State ; ^ evidences of debt issued by the United States held by a citizen of a State ; * franchises conferred by Congress upon a corporation created by it, to be exercised within a State ; ^ and agen- cies employed by the United States in carrying into effect the powers vested in it by the Con- stitution,® cannot be subjected to taxation by the States, without the consent of Congress. The State taxation of national banks, too, is con- 1 Morgan v. Louisiana, 93 U. S. 217 ; Wilson v. Gaines, 103 U. S. 417 ; Louisville. & Nashville Railroad v. Palmes, 109 U. S. 244 ; Memphis & Little Rock Railroad v. Railroad Commissioners, 112 U. S. (309 ; Pickard v. East Tennessee, Virginia & Georgia Railroad, 130 U. S. 637 ; Yazoo & AJiss. Valley Railroad v. lliomas, 132 U. S. 174. 2 Williamson v. New Jersey, 130 U. S. 189. ' Van Brocklin v. Tennessee, 117 U. S. 151 ; Wisconsin Central Railroad v. Price, 133 U. S. 496. * Weston V. Charleston, 2 Pet. 449 ; Bank v. Supervisors^ 7 Wall. 2(i. ^ California v. Central Pacific Railroad Co., 127 U. S. 1, 6 Osborn v. Bank of the United States, 9 Wheat. 738. NOTES UPON LECTURE V. 267 trolled and regulated by Congress.^ So, too, a LErxuRE v. State income tax cannot be imposed upon the ^•'*^''*'°^ "?«« ■^ ^ btate power of salary of an officer of the United States." taxation. The legislation of the State of Virginia, first making its consolidated bonds receivable in pay- ment of taxes, and then repudiating that con- tract, has been the subject of much litigation. The cases were reviewed at length at October Term, 1889, and it was held that the statute constituted a contract between the State and the holders of bonds and coupons issued under it, which was materially impaired by the subse- quent legislation ; and that although no pro- ceedings could be instituted by holders against the Commonwealth or its executive officers to control them in the exercise of their official functions, yet that, on the other hand, proceed- ings could not be taken on behalf of the State to molest holders on account of such taxes when payment of them had been tendered in such coupons, and the taxpayer held himself continu- ally ready to pay them in such coupons.^ 1 There are many cases on this point. It is sutScient to refer to Mercantile Bank v. New York, 121 U. S. 138, where the subject is discus.sed. 2 Dobbins v. Erie County, 16 Pet. 435. 8 McGahey v. Virr/inia, 135 U. S. 662. " This case, with seven others, reported under tliis title, grew out of tlie legislation of the State regarding coupons of the same character as those involved in the Virginia coupon cases. Mr. Justice Bradley, delivering the unanimous opinion of the court, after a full and exhaustive review and analysis of the decisions in those cases and others like them, presented a summary of the propositions established by those decisions, which cannot be well abridged, as follows : "'First, That the provisions of the act of 1871 constitute a contract between the State of Virginia and the lawful holders of 268 LECTUKES ON CONSTITUTIONAL LAW. Lecture V. Restraints upon State power of taxation. By far the larger class of cases touching the constitutional restriction of the power of taxa- tion in the States relates to its interference with the powers in respect of commerce which the Constitution has reposed in the Federal Gov- ernment. This subject, which we shall find con- sidered more at length when Ave reach the Lec- ture upon the Regulation of Commerce, has been, also touched upon by Judge Miller in this lec- ture. It is necessary to add to what he has said only a reference to a few of the later cases. The doctrine of Broivn v. Maryland,^ that a the bonds and coupons issued under and in pursuance of said statute ; " ' Second, That the various acts of the General Assembly of Virginia passed for the purpose of restraining the use of said coupons for the payment of taxes and other dues to the State, and imposing impediments and instructions to that use, and to the pro- ceedings instituted for establishing their genuineness, do in many respects impair the obligation of that contract, and cannot be held to be valid or binding in so far as they have that effect ; " 'Third, 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 Commonwealth by name, or in- directly against her executive officers to control them in the exercise of their official functions as agents of the State ; " ' Fourth, That any lawful holder of the tax-receivable coupons of the State, issued under the act of 1871 or the subsequent act of . 1879, who tenders such coupons in payment of taxes, debts, dues and demands due from him to the State, and continues to hold himself ready to tender the same in payment thereof, is entitled to be free from molestation in person or goods on account of such taxes, debts, dues or demands, and may vindicate such right in all lawful modes of redress, — by suit to recover his property, by suit against the officer to recover damages for taking it, by injunction to prevent such taking where it would be attended with irremedi- able injury, or by a defence to a suit brought against him for his taxes or the other claims standing against him.' " Mr. Justice Lamar, in Pennoyer v. McConnaughhy, 140 U. S. 1. 1 12 Wheat. 419. NOTES UPON LECTURE V. 2G9 State statute, requiring all importers and dealers lepturk v. in imported goods to take out a license and pay s^^l^tT'o^ver^f" a license fee therefor, is repugnant to the Con- taxation, stitution, and for that reason void, has been steadily followed since, and has been applied to commerce "among the several States," com- monly known as mterstate commerce. Below will be found references to a few of the many cases.^ In Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326, it was held that a State tax could not be constitutionally imjDosed upon the gross receipts of a steamship company, incorporated under its laws, which were derived from the transportation of persons and property by sea, between different States, and to and from foreign countries. In State Freight Tax Case, 15 Wall. 232, it was held that interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic com- merce, or that which is carried on solely within the State. In Welton v. Missouri, 91 U. S. 275, it was held that a statute of Missouri which re- quired the payment of a license tax by peddlers, 1 Henderson v. Xew York, 92 U. S. 259 ; People v. Compagnie Generale TrnnsatlantUpte, 107 U. S. 59 ; Welton v. Misso7iri, 91 U. S. 275 ; 77te Faxsenger Cases, 7 How. 283 ; State Freight Tax, 15 Wall. 2-32 ; Walling v. Michigan, 116 U. S. 44G ; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326 ; Fen- sacola Telegraph Co.y. Western Union Telegraph Co., 96 U. S. 1 ; Eatternian v. Western Union Telegraph Co., 127 U. S. 411 ; West- ern Union Telegraph Co. v. Alabama, 132 U. S. 472 ; Asher v. Texas, 128 U. S. 129 ; Pobbins v. Shelby County Taxing District, 120 U. S. 489 ; Leloup v. Port of Mobile, 127 U. S. 640 ; Corson V. Maryland, 120 U. S. 502. 270 LECTUliES ON CONSTITUTIONAL LAW. Lkcture V. Kcstrairits upon State power of taxation. peddling goods within the State, which were not its growth, produce, or manufacture, and which required no such payment and license from a person peddling within the State similar goods, the growth, produce, or manufacture of Missouri, was repugnant to the Constitution ; and also that the non-exercise by Congress of its power to regulate commerce among the States was equivalent to a declaration that it should be free from restrictions. In Asher v. Texas, 128 U. S. 129, it was held that a State law exact- ing a license tax to enable a person within the State to solicit orders and make sales there for a person residing within another State was void ; affirming Rohhins v. Shelby County Taxing Dis- trict, 120 U. S. 489. And in Fensacola Tele- graph Co. V. Western Union Telegraph Co., 96 U. S. 1, affirmed and followed in several subse- quent cases, it was held that a tax cannot be imposed by a State upon a telegraph company which has accepted the provisions prescribed by Congress (Rev. Stat. tit. LXV), based upon re- ceipts derived from messages received or sent without the State. In a recent case a New York statute essen- tially modifying, in the taxpayer's favor, previous laws of limitation concerning lands sold for non- payment of taxes, was attacked as unconstitu- tional. The new statute enacted that no action should thereafter be maintained to compel the execution or delivery of a lease upon a sale for taxes, etc., made more than eight years prior to its date, unless commenced within six months NOTES UPON LECTURE V. 271 after that date, and that, on the expiration of lectukk v. that .six months, the lien of certificates of pur- Kes^^^"'^ "17 ' i State power of chase on which no lease had been taken or no taxation, action commenced should cease and determine. It was held by the Supreme Court that there was nothing in the Constitution of the United States which prevented the Legislature of New York from prescribing a limitation for the bring- ing of suits where none had previously existed, or from shortening the time within which suits should be commenced to enforce existin<>: rii]i;lits under the tax sales, provided the time prescribed by the new law was a reasonable one.* 3. Power in Federal Courts to compel Muni- cipal Taxation in a State. On pages 243-246, ante, Mr. Justice Miller when Federal has referred to the many issues of the bonds of pei"murlidpar™* municipal corporations in aid of the construe- taxation, tion of railroads and other private enterprises, which have been a fertile source of litigation during the past twenty years. Although this class of cases, as a whole, in one aspect belongs to the subject treated of in Lecture XI, on the impairment of the obliga- tion of contracts, in another and narrower rela- tion they should be classified here. It is now well settled that the implied power of a municipal corporation to borrow money to enable it to execute the powers expressly con- ferred upon it by law, if it exist at all, does 1 Wheeler v. Jackson, 137 U. S. 245. 272 " LECTURES ON CONSTITUTIONAL LAW. Lecture V. not authorize it to create and issue negotiable When Federal securities, to be sold in the market, and to be Courts may com- ' pel municipal taken bytlic purchaser freed from equities which taxation. might be set up by the maker.^ Also that a grant to a municipal corporation of power to appropriate money in aid of the construction of a railroad, accompanied by a provision directing the levy and collection of taxes to meet such appropriation, and prescribing no other mode of payment, does not authorize the issuing of nego- tiable bonds in payment of such appropriation.^ With this class of cases, many in number, confining the power of municipal corporations in respect to the issue of negotiable securities to the powers expressly conferred upon it by statute, we have nothing to do in this connection. There are, however, a class of cases, in which such a power was exercised by the municipality in payment of subscriptions to aid in the con- struction of railroads, either under an unequivocal grant from the State legislature, or under a statute of the State which, as interpreted by its highest court, contained such a grant. Bonds issued under such circumstances were widely scattered ; and when default was made in their pa}Tnent, suits were commenced which finally found their way to the Supreme Court. When they reached that stage, it had been developed in some of them that the highest court of the State had reversed its ruling in regard to the power of the municipality to issue such bonds, and that bonds, valid under 1 Merrill v. Monticello, 138 U. S. 673, and cases there cited. 2 Concord v. liobinson, 121 U. S. 671. NOTES UPON LECTURE V. 2i-] its rulings when issued, would be held invalid, if lkcturk v. the new rulin*^ of the same court should be fol- \^'h«" i-'-'^"-''! >^ Courts may com- lowed. It also appeared that powers of munic- pel municipal ipal taxation which existed at the time of the orighial issue of such bonds, liad l)een modified or changed by State legislation to the injury of the holders of such bonds. With reo-ard to the cliano:e of rulin^i; in the State court, the Supreme Court, by Chief Justice Waite, said : — " Until long after the issue of the bonds now in question, the law was treated by the courts and the people as valid and constitutional. No lawyer, asked for a professional opinion on that subject, could have hesitated to say that it had been settled. It would seem as though every question, which could be raised, had in some form, directly or indirectly, been presented and decided. . . . We are, then, to consider whether, under these circumstances, we must follow the later decisions to the extent of destroying rights which have become vested under those given before. As a rule, we treat the construction which the highest court of a State has given to a statute of the State, as part of the statute, and govern ourselves accordingly ; but where different constructions have been given to the same stat- ute at different times, we have never felt our- selves bound to follow the later decisions, if thereby, contract rights, which have accrued under earlier rulings, will be injuriousl}^ affected. ... So far as this case is concerned, we have no hesitation in saying that the rights of the 274 LECTURES ON CONSTITUTIONAL LAW. Lecture V. When Federal Courts may com- pel municipal taxation. parties are to be determined according to tlie law, as it was judicially construed to be when the bonds in question were put on the market as commercial paper." ^ In regard to the legislation modifying the taxing power, it is held that, " when a contract is made with a municipal corporation, upon the faith that taxes will be levied, legislation repeal- ing or modifying the taxing power of the cor- poration, so as to deprive the holder of the contract of all adequate and efficacious remedy, is within the inhibition of the Constitution : " and that " a judgment creditor of a municipal corporation, entitled by his original contract to be paid out of specific tax levies, which agree- ment the corporation fails to comply with, is entitled, in mandamus proceeding, to a writ ordering the levy and collection of a sufficient tax to pay his judgment according to the assess- ment roll of the year in which the levy was made."^ 1 Douglass v. County of Pike, 101 U. S. 677, 685, 686, 687 ; Scotland County v. Hill, 132 U. S. 107, 112. See also Burgess v. Seligman, 107 U. S. 20, 33, 34, where the subject is fully con- sidered. 2 Nelson v. St. Martin's Parish, 111 U. S. 717. See also United States v. Clark County, 90 U. S. 211 ; Knox County Coui-t v. United States, 109 U. S. 229 ; Macon County v. Huidekoper, 134 U. S. 332. In all these cases a writ of mandamus was granted. See also United States v. Macon, 99 U. S. 582, where one was re- fused. VI. NATURALIZATION AND CITIZENSHIP.^ Article I, Section 8, Paragraph 4. The Con- Lecture VI. gress shall have Power ... to establish an uniform Naturalization rule of Naturalization . . . throughout the United and citizenship. States. Article IV, Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Article XIV of the Amendments, Section I. 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. . . . Last evening we took up the first clause of section 8 of Article I of the Constitution of the United States, which has reference to taxation. This evening I will call your attention to the fourth clause, which is as follows : " To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States." Naturalization is the process by which a citi- Definition of zen, or subject of a foreign nation or kingdom, naturalization, is made a citizen of the United States. 1 This is lecture V of the Lectures delivered before the classes of the University Law School. 275 276 LECTURES ON CONSTITUTIONAL LAW. Lecture VI. Deflnitiou of naturalization. Citizenship of the United States. It is evident that the Constitutional Con- vention thought that it was important that this process should be placed under the exclusive control of the Federal Government and not of the States. There are certain rights, privileges, and duties belonging to a citizen of a State, which do not belong to a foreigner resident within the State. Among these it is said that allegiance and protection are correlative obliga- tions. If you are a citizen or subject of a coun- try (and I employ the words " citizen " and "subject" as they are distinctively used in mon- archical countries, the former being more com- monly used to designate the relation where free or republican institutions exist, and the latter where a monarchy is established), then, in either instance, there are the correlative obligations between yourself on the one side, and the gov- ernment or the monarch on the other. The citizen or subject owes allegiance, which signifies the loyal devotion and support due from him to the government under which he lives ; and, in return, that government owes him protection in a great many ways, too numerous for me to undertake to detail at this time. Naturalization, then, is the process of conferring on, or impart^ ing to, a foreigner, who does not yet owe that allegiance, and who has no right to that protec- tion, the right to protection, and the obligations of allegiance. Before you can understand what a man gets by being naturalized in this country, you must have an idea of what it is to be a citizen. Citi- NATURALIZATION AND CITIZENSHIP. 277 zensliip in the United States was for man}^ years lecturk vi. a tiling of very imperfect definition. The term ^.iii^enshi,, of the o . . L uited States. occurs several times in the Constitution, in which citizens of the different States, as well as of tlie United States, are spoken of. It long remained a matter of considerable doubt what constituted citizenship of the United States. It was main- tained by many statesmen, up to the tinie of the adoption of the Fourteenth Amendment, that there was no such distinctive character as " a citizen of the United States;" that, on the con- trary, the designation of " a citizen of a State '* had been long known and understood, and as such, and by virtue of that fact, the person was a citizen of the United States. But that, you will at once see, left out all the good people who lived in the District of Columbia, for they were not citizens of any State ; and it also left out all the residents of the Territories, for they were citizens of no State. It was also asserted that it left out, and probably it did, all the In- dians in this country, whether connected with some tribe or not ; and the statesmen who lived in the slave-holding States vehemently main- tained that it left out as well all the slaves. Possibly it was true ; I am not prepared to say ; but they also insisted that it left out all the free colored population. In various wsljs it became a matter of consid- erable consequence whether that view was to be generally accepted. For instance, if a citizen of the District of Columbia, or a negro, while trav- elling abroad, was arrested by a foreign govern- 278 LECTURES ON CONSTITUTIONAL LAW. lecturic VI. ment, and appealed to this Government for United states ^^^ protection as a citizen of the United States, the foreign power could reply that he was not such a citizen, and could not assert the same rights as if he were a white man, a citizen of a State, and therefore a citizen of the United States. Among the good as well as evil things that the late rebellion has brought about, is a constitu- tional definition of this word "•citizen." It is impossible to get a clear idea of what naturali- zation means without knowing what citizenship is ; and I will therefore turn your attention to the Fourteenth Amendment to the Constitution of the United States, where that term is now clearly defined, and its meaning placed beyond all question. This it was intended to do, as well as to put at rest the question of the civil status of the negro. The Fourteenth Tliis amendment is divided into several sec- en men . tious, tliG first of wliicli relates to this subject. " Sec. 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 person within its juris- diction the equal protection of the laws." Looking at that section critically, you will see that citizenship of the United States and citizen- ship of a State are distinctly spoken of as sepa- NATURALIZATION AND CITIZENSHIP. 279 rate things, although the mode of ascertaining lecture vi. who is a citizen of the United States is to some 'V''^ i*"«"'teenth Amenament. extent through citizenship of a JState. It is not necessary, however, that a man should be a cit- izen of a State in order to be a citizen of the United States. If he is born or naturalized in the United States, and subject to its jurisdiction, he is a citizen of the . United States, and being such a citizen he is, by virtue of the clause above quoted, necessarily a citizen of the State in which he resides. There is, therefore, no difficulty now in determining what is citizenship of the United States. In regard to the use of the word " jurisdic- tion" in the phrase, "All persons born or nat- uralized in the United States, and subject to the jurisdiction thereof," it may be remarked, that a child of a foreign ambassador, born within the limits of the United States, is not subject to its jurisdiction within the meaning of the language just quoted. He remains a foreigner and a subject of the kingdom or country which is rep- resented by his father, and the same is true of all other diplomatic representatives. If a stran- ger or traveller passing through, or temporarily residing in this country, who has not himself been naturalized, and who claims to owe no alle- giance to our Government, has a child born here which goes out of the country Avitli its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction. This Amendment, of course, includes all the black people. They are born in the United 280 LECTURES ON CONSTITUTIONAL LAW. lkcturk VI. States and subject to its jurisdiction ; they are, ihe Fourteenth ^-hereforc, all citizens. Indeed, the main puriwse Ara Barb. 444, 448. The power to hear and determine a cause is jurisdiction ; it is coram judice, whenever a case is presented which brings this power into action. United States v. Arredondo, 6 Tet. 699, 709. 314 LECTURES ON CONSTITUTIONAL LAW. lkcturk VII. attainder as well as enacting convictions for What is judicial ^^.^ason and other crimes.^ power? Judicial power is, jjerhaps, better defined in some of the reports of our own courts than in any other place, and especially so in the Su- preme Court of the United States, because it has more often been the subject of comment there, and its consideration more frequently nec- essary to the determination of questions arising in that court than anywhere else. It is the power of a court to decide and pronounce a judg- ment and cany it into effect between persons and parties who bring a case before it for decis- ion.^ Acase is necessary Tliis powcr " sliall cxtcnd to all Cases'" of a to its exercise. . • -i -i , i • ^ • • n ^ t* e particular character, which is specined. Joeiore there can be any proper exercise of it a " case " 1 The distinction between judicial and political power is so gen- erally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. Nabob of Carnatic v. East India Co. , 1 Ves. Jr. 371, 375, 393 ; S.C. 2 Ves. Jr. 5G, 60 ; Penn v. Lord Baltimore, 1 Ves. Sen. 444, 446, 447 ; New York v. Connecticut, 4 Dall. 4, 6 ; Cherokee Nation v. Georgia, 5 Pet. 1 ; Bhode Island v. MassacMisetts, 12 Pet. 657. They are all in one direction. State of Georgia v. Stanton, 6 Wall. 50, 71. In the early ages of the English system, however, the line be- tween the judiciary and the legislature was not distinctly marked, and Parliament, consisting of one great chamber, in which sat both lords and commons, not only made but also interpreted the laws. But it has now long been settled in England that the interpretation of statute law belongs to the judiciary alone, and in this country they have claimed and obtained an equal control over the construc- tion of constitutional provisions. Sedgwick on Const. Law, 18. 2 Judicial i^ower is never exercised for the purpose of giving effect to the will of the judge ; always for the purpose of giving effect to the will of the Legislature ; or, in other words, to the Will of the law. Oshorn v. Bank of the United States, 9 Wheat. 738. THE JUDICIAL POWER OF THE UNITED STATES. ol5 must be presented in court for its action.* A lecture vii Acaseisnecesf to its exercise T , • , • i" • 1 i. A case is necessary case miplies parties, an assertion oi rigtits, or a wronsT to be remedied. The decisions of the o Supreme Court of the United States, as well as those of other courts, contain many definitions of what it is. A reference to Paschal's Anno- tated Constitution will give many of them, and their leading features. Perhaps there is none better than in the language of Chief Justice Marshall : " A case arises, within the meaning of the Constitution, when any question respect- ing the Constitution, treaties, or laws of the United States has assumed such a form that the judicial power is capable of acting on it." ^ In this connection it is proper to endeavor to Functions of the . ,1 • • J.1 J. •^ ' court as interpre correct the erroneous impression that prevails m ^^^ ^^^ constitu- the minds of many j)ersons with regard to the tiou. power of the Supreme Court of the United States as the expounder of the Constitution. It has been asserted in popular treatises, in jDublic speeches, and political harangues, that the Su- preme Court of the United States is the final expounder of that instrument, that it was made 1 In order to entitle the party to the remedy a case must be presented appropriate for the exercise of judicial power ; the rights in danger must be rights of persons or property ; not merely polite leal rights, which do not belong to the jurisdiction of a court, either in law or equity. State of Georgia v. Statiton, Wall. 50, 7(5. When a right is asserted by a party before a court in the man- ner prescribed by law, it then becomes a case to which the judicial power extends. This includes the right of both iJiwties to the liti- gation ; and the case may be said to arise whenever its correct decision is dependent upon the construction of the Constitution, laws, or treaties of the United States. 2 Osborn v. Bank of the United States, 9 Wheat. 738, 819. 316 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. for that purpose, and that it is one of its pri- Functious of tiie j^r^^y functions. But it has been over and a(>jain court as interpret- «^ _ , '-^ iiig the Constitu- held by that court, that all it can do in that *'°°* regard is to decide such questions as involve a construction of its provisions, and only those when they are brought before it in a suit be- tween proper parties. In some cases these par- ties have been very dignified ones. The United States and great States have appeared before its bar, but in the great majority of cases, where it has been called upon to construe the Constitution of the United States, it has been in a conflict between individuals, wherein the validity of some law, or the determination of some right asserted by one party and denied by the other, must be settled by the authority of this great fundamental charter. So this court only does, in its higher position as the last court to which such cases can be brought, what every other court in the United States has to do, whether it be a State or a Federal court. It only decides . such cases as arise in the progress of ordinary litigation.^ It may also be noted, before passing from the consideration of this part of the clause, that the judicial power " shall extend to all cases " aris- 1 This clause enables the judicial department to receive jurisdic- tion to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case. Marshall, C. J., in Oshorn v. Bank of the United States, 9 Wheat. 738, 819. THE JUDICIAL POWER OF THE UNITED STATES. dl7 ing under the circumstances specified. That is lecture vil to say, to all cases where a ric^ht exists under ^""f^'l'^^'^'r ^^ ~ court as interpret- the Constitution, or under a treaty which shall inKtbeConsUtu- be made under the authority of the Federal Gov- ernment. The Federal power extends over, and covers all such cases, and they are properly within the jurisdiction of its courts.^ This extension of power over all cases is, how- ever, qualilied by the words immediately follow- ing: "in law or in equity." These cases must be in law or in equity, with the exception of ad- miralty, as to which there is a separate clause further on in the section. Under this provision an attempt has been made to exclude a very large class of cases arising in the State and other courts, which were of an anomalous char- acter. Some actions where remedies were given ' by peculiar modes of proceedmg, by summary proceedings, by attachment, and others at vari- ance with the common law, were said not to be suits at law, and yet did not come under any head of equity jurisprudence. But the decisions of the Supreme Court of the United States are abundant to the effect that, with the exception of admiralty, all modes of procedure for the assertion of rights must be arranged under the one class or the other, either law or equity, within the meaning of this clause.^ 1 The judicial department is authorized to decide all cases, of every description, arising under the Constitution or laws of the United States. Cohens v. Virginia, 6 Wheat. 264, 382. 2 This clause extends the jurisdiction of the court to all cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be 318 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. Equity is a limited jurisdiction which has Equtty jurisdic- gj-^^j^ ^^p j^^ ^\^q ^[^^q ^f ^he couinion hiw, which is in some sense a restriction of, and departure from that law. There is not much difficulty as to what are cases in equity, and it is sufficient to say, that the Federal courts have held that all the cases that are neither properly cognizable in admiralty or equity are, within this clause of the Constitution, cases at law. Indeed, the Supreme Court have held, as they have been compelled to do, that when the Federal courts come to administer the rights or the remedies claimed under what I may venture to term the improvements in the modes of procedure which have been adopted by the codes of the various States, in most of which equity and law have been consolidated, as well as under many new statutes giving new rights, appointing new modes of procedure, and fixing new remedies, they must range the actions in those courts upon the equity or law side as the nature of the right asserted, or the remedy given may require. They do this, as equity is understood and was understood in the English courts at the time of the Revolution.^ Their equity jurisdiction is any exception, it is to be implied against the express words of the article. ... A case in law or equity consists of the right of one party, as well as of the other, and may be truly said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 378. 1 The equity jurisdiction of the courts of the United States is independent of the local law of any State, and is the same in nature and extent as the equity jurisdiction of England from which it is derived. Therefore it is no objection to this jurisdiction that there THE JUDICIAL POWER OF THE UNITED STATES. 319 independent of the local law of any State, and lkctike vir. no rules at law or in equity, which have been jjon'*^^ ^""^'^ "^" adopted in any State court, can abolish the sepa- rate and distinct jurisdiction. That must be administered on the chancery side of the Fed- eral court which has taken charge of it.^ One of the distinctions necessary to be noted Kisht of trial by ,!• 1'ii, ji •• c ii jury at common m this regard is that another provision oi the j^w. Constitution declares that in suits at common law, where the value in controversy exceeds twenty dollars, every one shall have a right to a trial by a jury.^ The right of trial by jury is is a remedy under the local law. Gordon v. Hohart, 2 Sumner, 401. The remedies in courts of the United States are to be, at com- mon law or in equity, not according to the practice of State courts, but according to the principles of common law and equity, as dis- tinguished and defined in that country from which we derive our knowledge of those principles. Bohinson v. Campbell, 3 Wheat. 211, 222. It is not enough that there is a remedy at law ; it must be plain and adequate, or in other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. Bo>/ce''s Executors v. Grundy, 3 Pet. 210, 215; United States V. Hoidand, 4 Wheat. 108. 1 Although the forms of proceedings in the State courts have been adopted in the District court, yet the adoption of the State practice must not be understood as confounding the princijiles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit. The Constitution of the United States, in creating and defining the judicial power of the General Government, establishes this distinction between law and equity ; and a party who claims a legal title must proceed at law, and may undoubtedly proceed according to the forms of practice in such cases in the State courts. But if the claim is an equitable one, he must proceed according to rules which this court has prescribed [under the authority of the act of August 23, 1842], regulating pro- ceedings in equity in the courts of the United States. Bennett v. Bnttenvorth, 11 How. 669. 2 In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, 320 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. Right of trial by jury at common law. When a case arises under the Constitution. no part of the system of equity jurisprudence, and therefore, in order to give proper effect to all of these provisions, the Federal courts have been compelled to keep separate and distinct cases at law and cases in equity.^ Proceeding farther in the consideration of the language of this clause we first note that these cases are those " arising under this Constitution." That is to say, a case arises under the Constitu- tion whenever some constitutional right is denied, some right which this instrument gives, whether it be a right to property, a right of liberty, a right to vote, or any other right which can be traced to this Constitution. If that right be infringed, denied, or imperilled, it can be brought into the courts of the United States by virtue of this provision.^ This is also true of the laws of tha United States. These cases are also those "arising under . . . the laws of the United States." The Constitution itself is a very general instrument. 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 com- mon law. Amendment VII. 1 The courts of the United States are required, both by the Constitution and the acts of Congress, to observe the distinction between legal and equitable rights, and to enforce the rules and principles of decision appropriate to each. Fenn v. Holme, 21 How. 481. 2 It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the con- stitutionality of a State law. Such law must be brought into actual, or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here. Dissenting opinion of Justice Thompson, in Cherokee Nation v. Georgia., 5 Pet. 1, 76. THE JUDICIAL TOWER OF THE UNITED STATES. 321 The rights which it confers and the duties which lecture vii. it imposes, are stated in very ereneral lanf»;uag;e ; ^V'^^" '■» •^f-'*'-* '^ \ . . . arises under the but these rights and duties, and the obligations Constitution. growing out of them, have been put into full operation and defined and perfected by statutes, which we designate the laws of the United States.^ Whenever, therefore, an individual has a claim or right under a statute of the United States, which he seeks to enforce, we see that this can be done by — and that the proper place to seek the power to accomplish it is in — some one of the different branches of the judicial de- partment of the Government of the United States.^ This power extends also to all cases arising cases arising under " treaties made, or which shall be made ""'^*^'^ treaties, under their authority," as to which some obser- vations may properly be made. A treaty always means a compact or convention between two independent nations or governments. Indepen- dence, or at least some degree of it, is necessary 1 The Constitution (Art. 1, sec. 8, par. 18) gives Congress the power "To make all laws which shall he 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." One of these powers i.s the jitdicial, embracing civil and criminal cases alike. The provision that it shall extend to " all cases" embraces civil actions and criminal prosecutions. Both are equally within that power. Tennessee v. Davis, 100 U. S. 257. 2 The jurisdiction vested in the courts of the United States . . . shall be exclusive of the courts of the several States. Rev. Stat. §711. Congress gave to the Circuit and District Courts of the United States, during and immediately after the close of the rebellion, jurisdiction over many 'questions which had been previously left entirely within the control of the State courts. 3z2 LECTURES ON CONSTITUTIONAL LAW. LKrruKK VII. in orcler that the treaty may exist between the Cases arising parties who make it. From these principles under treaties. ^ ^ '■ the conclusion has been reached that so far as the treaty itself is a national obligation to be en- forced by the action of the States who made it, either by war, by negotiation, by modification, or by appeals to the States, the courts have nothing to do with it. In that case, they must follow and abide by what the Government proper does upon that subject, or what, in the language of the Supreme Court of the United States, are called the political branches of the Government having charge of that relation.^ But a treaty may l^e the foundation of a pri- vate right, and then it becomes a subject of judicial action, as does any other private right.^ 1 "This court (iu Foster v. Ncilson, 2 Pet. 253, 307) did not deem the settlement of boundaries a judicial, but a political question — that it was not its duty to lead but to follow the action of the other de- partments of the Government ; that when individual rights depended on national boundaries, ' the judiciary is not that department of the Government to which the assertion of its interests against foreign powers is confided, and its duty commonly is to decide upon indi- vidual rights according to those principles which the political department of the nation has established.' " These views are reiterated in United States v. Arredondo, Pet. 699, 711. But this right must be a legal one .- the judicial power does not extend to all questions which may arise under the Constitution, laws, and treaties, because they are frequently political in their character, and must be decided by other departments of the Gov- ernment. Chief Justice Marshall says : " The judiciary is not that department of the Government to which the assertion of its interests against foreign powers is confided ; and its duty com- monly is to decide upon individual rights, according to those prin- ciples which the political departments of the nation have estab- lished." Foster v. Neilson, 2 Pet. 253, .306. 2 A treaty is the supreme law of the land. TJanenstein v. Lyn- ham, 100 U. S. 483. Its operation cannot be interfered with or in any way limited by a State, and it overrides State laws in con- flict with it. Baker v. Portland, 5 Sawyer, 566. THE JUDICIAL POWER OF THE UNITED STATES. 323 This subject has been well considered in the case lectubk vii. of the United States v. Rauscher,^ who was ^'i;',^'^';"^'^^^^^^^ returned from Great Britain to this country in pursuance of a demand of the President, on the charge of murder. He was tried, and a verdict of guilty rendered by the jury upon a charge of inflicting cruel and unusual punishment upon one of the seamen of the vessel on which he was an officer. He denied the authority of the court to try him for this, or for any other offence, except that for which he had been sur- rendered in the extradition proceedings. The Supreme Court in response to questions certified to it by the judges of the Circuit Court, held that this contention was sound, and that the treaty would, in the event that he was either acquitted, or not tried for the offence for which he iiad been extradited, give him a right to be set at liberty and allow him a reasonable time to return to Great Britain. The court, referring to the Head Money Cases, quoted from its language in that case in reference to the char- acter of a treaty as a law of the land, as fol- lows : — " A treaty is primarily a compact between independent nations. It depends for the en- forcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and recla- mations, so far as the injured party chooses to 1 119 U. S. 407. 324 LECTURES ON CONSTITUTIONAL LAW. Lecture vil Seek rcdress, which may in the end be enforced under trladi. ^J ^ctual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations resid- ing within the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as be- tween private parties in the courts of the coun- try. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations, in regard to the rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress, by its declaration that ' this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.' A treaty then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the pri- vate citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it, as it would to a statute."^ " The treaty of 1842 being therefore the 1 Head Money Cases, 112 U. S. 580, 598. See also C'heio Heong V. United States, 112 U. S. 536, 540, 565. THE JUDICIAL rOWER OF THE UNITED STATES. 325 supreme law of the land, of which the courts lecture vil are bound to take iudicial notice, and to enforce *^'^?'' y^'!'.^' J ' under treaties. in any appropriate proceeding the rights of persons growing out of that treaty, we proceed to inquire, in the first place, so far as pertinent to the questions certified by the circuit judges, into the true construction of the treaty." ^ Passing on in the consideration of this sec- tion, we note that the judicial power not only extends to cases arising under the Constitution and laws of the United States, and treaties made under its authority, but is directed to specific classes of cases. The text here assumes another form of expression. Heretofore it has been dealing with the subject matter of the suit or with the nature of the controversy. Now it speaks of cases affecting classes of people. Let us consider them in their order. " The judicial power shall extend . . . to all cases affecting cases affecting ambassadors, other public min- ^'"'^^^s^'^'^'^s- isters, and consuls." Every diplomatic represent- ative, such as an ambassador, or a minister or a consul at one of our various ports, has a right to have any case affecting his rights tried in a Federal court. This is true, no matter what his grade or rank, and some of these diplomatic gentlemen have very high sounding titles, such as Minister Plenipotentiary and Envoy Extraor- dinary. The reason for this provision is easy to be understood. These persons are the represent- atives of foreign governments, independent 1 United States v. Raiischer, 119 U. S. 407, 419. 326 LECTUKES ON CONSTITUTIONAL LAW. Lecturk VII. Cases affecting ambassadors. Admiralty and maritime juris- diction. nations, and should not, therefore, be subjected to the power of individual States who have no relation to those governments. Cases in which they are concerned can only be brought before the courts of the United States, who can look into the matters at issue and right them. It shall also be extended " to all cases of admiralty and maritime jurisdiction." ^ That is a very peculiar thing to be in this Constitution. I suppose the reason it was put there was that it was considered to be in the nature of an inter- national relation, coming immediately, as it does, in juxtaposition with the clause relating to ambassadors and other public ministers and consuls. Doubtless that is why it was taken out from State jurisdiction and placed within the power of the Federal judiciary ; for, although admiralty cases do not involve any law or stat- ute of the United States, nor the Constitution of the United States, nor any treaty, yet at the time the Constitution was framed, the admiralty jurisdiction was supposed to be limited, as it was in England, to traffic on the ocean, and the affairs of vessels, seamen, and navigators upon the tidal waters of the country. It was thus thought to be only properly cognizable by the courts of the Central Government.^ In connec- 1 In the Federalist, No. 80, it is said: "The most bigoted idol- izers of State authority have not thus far shown a disposition to deny the National Judiciary the cognizance of maritime causes. These so generally depend on the laws of nations, and so com- monly affect the rights of foreigners, that they fall within the considerations which are relative to the yjublic peace." 2 The exclusive cognizance of all cases of this character was THE JUDICIAL POWER OF THE UNITED STATES. :527 tion with this view of the subject it may be well lectuke vii. to note also, that this particular provision is an ^^''"""'"y a'"' interpolation of a clause regarding the matter diction. of jurisdiction among those which concern the character of the parties. At this point the word "cases" is dropped, as when the United well as the subject matter of jurisdiction, and ^^'^^^'^ ^^ ^ p^"^- vested in the District Courts by this clause and the judicial act of 1789. No attempt was made, however, to define the meaning of the terms or to fix the limits of their jurisdiction. Very few cases came to the Supreme Court involving these questions up to 1840, but the principle was established that the true test of the jurisdic- tion of a court of admiralty was whether the vessel was engaged, substantially, in maritime navigation, upon the tidal waters of the country. The Steamboat Orleans v. Fhcebus, 11 Pet. 175. To give jurisdiction the cause of action must have arisen upon waters affected by the tide. The District Court was held not to have jurisdiction of a suit for wages earned on a voyage from Ken- tucky up the Missouri River and back. The Thomas Jefferson, 10 Wheat. 428. [1825]. In other cases following the jurisdiction of admiralty courts was limited to tide waters, or where the influence of the tide was at all felt. The Planter, 7 Pet. 324 ; United States v. Coombs, 12 Pet. 72. In the case of a collision upon the Mississippi River, ninety miles above New Orleans, but within the ebb and flow of the tide, it was held that the expression in the Constitution was neither limited to nor to be interpreted by, what were cases of admiralty jurisdiction in England when the Constitution was adopted by the States of the Union, and that in cases of tort or collision as far up a river as the tide ebbs and flows, although it may be infra corpus comitatus, courts of admiralty have jurisdiction. Wariiiy v. Clarke, 5 How. 441. [1847]. See also llie Lexington, 6 How. 344; St. John V. Paine, 10 How. 557; The \eui Jersey, 10 How. 586. By the act of February 26, 1845, Congress extended the jurisdiction to the great lakes, 5 Stat. 726, and the tide-water restriction was entirely abandoned by the Supreme Court in The Genesee Chief, 12 How. 443, extending the jurisdiction to all public navigable lakes and rivers where commerce is carried on between different States or with a foreign nation. This doctrine was defined and reaifirmed in The 3lagnolia, 20 How. 296 ; llie Eagle, 8 Wall. 15; l^he Montello, 11 Wall. 411 ; Miller v. Mayor of New York, 109 U. S. 385. 328 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. Wlieu the Uuited States is a party. Controversies between States. the section proceeds to give jurisdiction by a description of the persons or parties who may come before the Federal courts. The judicial power shall extend " to controversies to which the United States shall be a party." Whenever the United States is a party in a suit the Fed- eral courts may have jurisdiction ; that is, courts acting under the Federal power. They are tribiuials established under the authority of Congress, and in those courts alone can the United States be sued.^ These courts take juris- diction of suits in which the United States sues to recover property or taxes, of suits upon the bonds of defaulting officers, of prosecutions for claims against the United States, and many other cases in which the General Government sues in the forum of its own creation. The judicial power is next extended "to con- troversies between two or more States."^ There never has been a tribunal known in history. 1 Except where Congress has provided that the United States cannot be suod. United States v. Lee, 106 U. S. 196. 2 The effect of the want of this power is aptly illustrated in the language of the Federalist, No. 21, regarding the American Confed- eracy which then existed. "The next most palpable defect of the subsisting Confederation, is a total want of a sanction to its laws. The United States, as now composed, have no power to exact obedi- ence, or punish disobedience to their resolutions, either by pecuni- ary mulcts, by a suspension or divestiture of privileges, or by any other constitutional means. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the Federal head, as resulting from the nature of the compact between the States, it must be by, inference and construction, in the face of that part of the second article, by which it is declared, ' that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.' " Controversies between States. THE JUDICIAL TOWER OF THE UNITED STATES. 329 anterior to the formation of this Constitution, lecture vil which had jurisdiction, in the full sense of that word, of controversies between States.^ The old Aniphictyonic Council among the Greeks might possibly have been called a court or tribunal in some sense, but certainly not in the broad way in which the term is applied to the Supreme Court of the United States. That council could ^ In the Germanic Confederation there was a tribunal in some respects resembling the Supreme Court of the United States. The Chamber of Wetzlar, or Westphalia, possessed exclusive jurisdic- tion in deciding upon disputes between members of the Empire. But it had no power to execute its decisions. The laws operated not upon individuals, but upon States ; and the sentence of the supreme judicial tribunal had no higher effect. The consequence was that it became necessary to resort to force, and to this end the Empire was divided into circles, the entire military force of which was at the disposal of the Emperor, to enable him to execute the sentence of the court against a refractory member. Under the new constitution of 1815 a different organization took place. If the rights of one State are invaded by another State, the injured party must choose one of three members of the diet, selected by the defendant ; or if the defendant neglected to select, the diet is bound to name them. And the court of final resort in the State of the member thus chosen decides the case. And if the party against whom the judgment is pronounced does not obey, military force is resorted to, to coerce submission. There does not appear to have been any judicial tribunal, either under the old or new constitu- tions, for the puqiose of settling disputes between the States and the Confederacy. The diet, or national legislature, seems to have possessed this power. The American system stands alone amid the institutions of the world, and although it was a natural conse- quence of the adoption of the perfect form of confederation, yet as this species of government is a work of the greatest refinement, and the result of a very high state of civilization, the organization of the national judiciary may be pronounced one of the greatest achievements which political science has made. Grimke on Free Institutions, p. 389, Cincinnati, 1848. In the Federalist, No. 80, reference is made to the Imperial Chamber of INIaximilian, which is said to have been a court invested with authority to decide finally all differences among the members of the Germanic body. 330 LECTURES ON CONSTITUTIONAL LAW. Lectxire VII. Controversies between States. Controversies between a State and citizens of another State. meet and hear the complaints of the Greek States against each other, and in that forum they could complain of each other's acts. Upon such hear- ing the council could recommend what could be done, but it had no power to carry its deter- minations into effect. The Constitution of the United States, however, creates a court which can not only hear and determine all controver- sies between different States, of which it is given original jurisdiction, but can also bring them before it by process, as it can bring the humblest citizen, and declare its judgment, which it has usually been able to enforce.^ It also extends to controversies " between a State and citizens of another State." ^ That is to say, while a State cannot sue one of its own citizens in the courts of the United States, it can sue those of other States. As this Constitution stood at the time it was adopted, a citizen of one State could sue another State in the Federal courts, but as soon as a case of that kind origi- 1 That a person cannot sue his own State, except under some State law, is well settled. Hans v. Louisiana, 24 Fed. Rep. 55. [See 134 U. S. 1, for the action of the Supreme Court on this case.] 2 Nor can that be accomplished by indirect means which cannot be done directly. The history of Article XI of the Amendments to the Constitutions, and the causes which led to its adoption, are reviewed in the case of New Hampshire v. Louisiana, 108 U. S. 76, and it was decided that unless the State prosecuted consents, that amendment prohibits the court from entertaining jurisdiction of a case in which one State seeks relief against another State on behalf of its citizens, in a matter in which the State prosecuted has no interest of its own ; that one State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens. THE JUDICIAL POWER OF THE UNITED STATES. 331 nated in which a State found its dignity infringed lecture vii. and it was seen that a State could be broui:!:ht l'"'"^'""^''"'*;''. n between a State into court by any one, a requisite number of «i"d t^'tizeus of States modified this provision by declaring that it should not apply to suits by citizens of one State against another State. The jurisdiction is now between States, which was discussed in a preceding paragraph, and between a State and citizens of another State when the State is plaintiff.^ We now come to controversies " between citi- Between citizens p T cc , cit . )> TT • •, 1 of different States. zens 01 ditterent btates. Here is, as it has turned out, the largest source of the jurisdiction of the Federal courts. In the previous part of this section the right to sue in the Federal 1 The impression prevailed after tlae adoption of the Constitution in 1789 that a citizen of one State or an alien might sue a State. Hamilton refers to this, and denies it, in the Federalist, No. 81. Madison and Marshall both denied its existence in the course of the debates on the Constitution in Virginia. It was, however, maintained in Chisholm v. Georgia, 2 Dall. 419, in 1793. William Vassal, a British subject, soon after brought a suit in the Supreme Court to set aside a confiscation of his property in Massachusetts. Process was served on the governor of the State, John Hancock. The General Court was convened by him, and the authority ques- tioned. It was argued that such suit was contrary to the principles of the Federal Government. It decided that the Federal Consti- tution should be amended in this respect, and in 1794 a senator from that State introduced in the Senate of the United States, and secured the adoption of the Eleventh Amendment by that body. It was declared in force January 8, 1798. The cases of Chisholm and Vassal were never prosecuted to judgment, and no attempt has been since made to so use the power of the court against a State at the suit of an individual. The amendment is as follows: "The judicial power of the United States shall not be construed 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 for- eign State." Constitution, Art. XI of Amendments. 332 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. courts was granted in any action arising under ofdiffTreutstates ^^^^ Constitution, laws, and treaties of the United States, without regard to the citizenship or resi- dence of the parties thereto ; but here it is the character of the party which gives the right to sue without reference to the nature of the mat- ter at issue. A class of persons is here desig- nated who can bring suits in the Federal courts, no matter what may be the cause of action. It may arise on a promissory note, out of an assault and battery, or from any other matter which can become the subject of a judicial investiga- tion. A person residing in Maryland can sue in the courts of the United States a person residing in Virginia, and e co?werso, and so of other States. If a person has the qualification of citizenship in one State, and his adversary has it in another State, the suit can be brought in the Federal courts. The reason for this, as has been frequently said by commentators and by courts, was the fear in the minds of the makers of the Consti- tution that the local prejudice likely to arise in favor of a man sued in the courts of his own State would result in unfair decisions against his non-resident adversary. Suppose, for illustra- tion, that one party who is living in Boston brings a suit against a man residing in New Orleans. It was supposed that the popularity or the home influence, of the man who was thus sued in New Orleans, and possibly some irrita- tion or ill-feeling against citizens of another State, might stand in the way of the just THE JUDICIAL POWER OF THE UNITED STATES. iio6 determination of the claim of the man from lecturk vii. -[-J , Between ciiizf iis iJOStOn. of dififerent States. So, also, seeing that the Constitution had provided that the man so sued for an amount exceeding twenty dollars in value might demand a trial by a jury, and considering that the jury might be affected by this class of prejudices, it was thought wise that a tribunal that was sup- posed to be impartial should be provided, and one which did not owe its appointment or com- pensation to the State in which the case was tried. It was thought that a court owing its allegiance to, and receiving its commission from the United States, would be a safer tribunal than a court which was commissioned by a State, which could be influenced by a vote of a major- ity of its citizens, and might be swayed more or less in its decisions from the absolute principles of justice.^ It was for these reasons -that this provision was placed in the Constitution, and it has been and is to-day, in the ratio of four to one, the source of controversies, suits, and cases in the courts of the United States. 1 One great object in the establishment of the courts of the United States and regulating their jurisdiction was, to have a tri- bunal in each State, presumed to be free from local influence ; and to which all who were non-residents or aliens might resort for legal redress. Gordon v. Longest, 16 Pet. 97. "In the argument the court has been admonished of the jeal- ousy with which the States of the Union view the revising power intrusted by the Constitution and laws to this tribunal. To obser- vations of this character the answer uniformly has been that the course of the judicial department is marked out by law. We must tread the direct and narrow path prescribed for us. As this court has never grasped at ungranted jurisdiction, so it never will, we trust, shrink from that which is conferred upon it." Chief Justice Marshall, in Fisher v. Cockerell, 5 Pet. 248. 334 LECTURES ON ' CONSTITUTIONAL LAW. lectuke vn. The next class of cases to which the judicial Citizens of the power cxtcnds is one that depends partly upon same State claim- i i. i. ./ j. in<,' lands under the citizensliip of the party and partly upon the States ° ' ^^^" character of the particular issue. It relates to controversies " between citizens of the same State claiming lands under grants of different States." ^ Virginia, at one time, claimed a large part of what was known as the Northwestern Territory. Connecticut had 'a grant of land which is in- cluded in the State of Ohio, what is called the ■ " Western Reserve," with probably a population of a quarter of a million. It was supposed tliat where there were grants under the authority of different States there would be controversies. This provision was, therefore, introduced here for the purpose of giving the Federal courts jurisdiction of that class of cases.^ Between a State, Finally, it is extended to controversies, " be- or Its citizens, and ^^yggjj a State, or the citizens thereof, and for- foreign states or ^ citizens. cigu statcs, citizcus, or subjects." Every foreign state, or any of its citizens, is entitled to sue any of our citizens in the Federal courts, and if a citizen of this country can get service of process upon them, he has a right to sue them in the same tribunals.^ 1 These are the only instances in v:hirh the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State. The Federalist, No. 80. 2 See case of Pawlet v. Clark, 9 Cranch, 292, relating to grants by the States of New York and Vermont. If the controversy is founded upon the conflicting grants of different States, the judicial power of the courts of the United States extends to the case, what- ever may have been the equitable title of the parties prior to the grant. See grants by Kentucky and Virginia, in Colson v. Leicis, 2 Wheat. 377. 3 The courts of the United States have jurisdiction in a c THE JUDICIAL POWER OF THE UNITED STATES. 335 These are the characteristics of the parties lecturk vii. who may hrmo- suits in the various courts of the between a state '^ ~ • or itsL'Uizt'iis, and United States, and these are the classes of cases, foreign states or as well as the nature of the controversies, wdiich come within their jurisdiction. But before this could be exercised in regard to the largest part of them, an act of Congress was required to cre- ate the courts for that purpose.^ Therefore it was that immediately after the organization of the Government, Congress did create courts, define their constitution, and regulate their ad- ministration. It is, however, a noteworthy fact that up to within a very few years a large body of this judicial power, which is within the con- between citizens of the same State if the plaintiffs are only nomi- nally plaintiffs for the use of an alien. Browne v. Strode, 5 Cranch, 308. It must appear from the record that the opposite party is a citizen. Jackson v. Twentyman, 2 Pet. 136. An In- dian tribe or nation located within the United States is not a for- eign state within the meaning of this clause. Cherokee Nation v. Georgia, 5 Pet. 1. 1 The great act, commonly called the "Judiciary Act," and entitled " An Act to establish the Judicial Courts of the United States," passed September 24, 1789, 1 Stat. 73, c. 20, originated in the Senate. One member of the committee which reported it, Oliver Ellsworth, afterwards became a Chief Justice of the Supreme Court, and another member. William Patcrson, an Associate Jus- tice of the same court. Five of its members had also been deputies to the convention which framed the Constitution. It may be said that the authors of this act, as well as the Congress which adopted it, were adherents of the political party which held that it was in- dispensable to the peace and unity of the country that the authority of the Federal Government should be extended as far as it could be • constitutionally. So it has been considered, and justly so, as an authoritative and contemporaneous exposition of the limits of the judicial power of the General Government. Chief Justice Marshall says, in Cohens v. Virginia, Wheat. 264, "Congress seems to have intended to give its own construction to this part of the Con- stitution in the twenty-fifth section of the Judiciary Act, and we perceive no reason to depart from that construction." 66b LECTUEES ON CONSTITUTIONAL LAW. Lecture VII. trol of Congress imder these provisions of the between ii State Coiistitution, Wcis vestcd ill HO coiirt at all, and or Its citizens, ana -' . ^ foreign states or consequeiitlj coiild iiot be exercised by a Fed- eitizens. , , i eral court. Limitations im- Limitations have also, from time to time, been gress^^^°" fixed by Congressional action upon the classes of cases in regard to which jurisdiction has been vested in the courts of the United States. At the present time this limitation is a very large one. For instance, no suit can be brought in those courts where the amount in controversy does not exceed two thousand dollars in value, with the exception of patent, and revenue or admiralty cases, and criminal prosecutions. In regard to those matters suits may be brought without reference to value, but in all other ac- tions brought by a citizen of this country the amount in controversy must exceed this specified limit.^ The Act of March It was iiot Until Marcli 3, 1875, that Con- ;5, 1875. gress finally passed a law which authorized all cases arising under the Constitution, or laws of the United States, and treaties made under their authority, to be brought in the Federal courts, 1 Congress may legislate authorizing the removal from State to Federal courts of criminal as well as civil cases. This has been partially done. Act of February 4, 1815, 3 Stat. 198, c. 31, § 8 ; Act of March 2, 1833, 4 Stat. 632, c. 57 ; March 3, 18G3, 12 Stat, 755, c. 81, § 5 ; Jidy 13, 186(3, 14 Stat. 171, c. 18i, § 67. This sub- ject was considered at length in Tennessee v. Davis, 100 U. S. 257. - It has often been decided that the sum in controversy in a suit is the damages claimed in the declaration ; whether it be an original suit in the Circuit Court of the United States, or brought there by petition from a State court. Gordon v. Longest, 16 Pet. 97. THE JUDICIAL POWER OF THE UNITED STATES. thus giving them concurrent jurisdiction with lecture vii The Ac ■ ■ ' 3, 1875. the State courts.^ Previous to that date, if a .. ® party had a right under the Constitution, the laws, or treaties, but liad not the requisite citi- zenship, he had to first go before a State court. After he liad carried his case tlirough all the State tribunals, up to the highest, then the question which concerned the Federal jurisdic- tion might, if it was decided against him, be brought l)y a writ of error up to the Supreme Court of the United States. But that class of cases may now, by the act of 1875, be brought originally in the Circuit Courts of the United States. These comments upon the second section of the third article of the Constitution have been made before taking up the first section, because it defines or marks out the judicial power of the United States by providing to what cases it may extend. It is, therefore, of primary importance to the student of the legal principles upon wdiich our Government is founded. The first section provides, in its opening clause, that this judicial power of the United States, which we have been discussing, " shall be vested in one Supreme Court,^ and in such inferior 1 An act to determine the jurisdiction of Circuit Courts of the United States, ajid to regulate tlie removal of causes from State courts, and for other purposes. Approved March 3, 1875. 18 Stat. 470. 2 The origin of this provision is described by Hamilton, in the Federalist, No. 81. He says that contrary to the general supposi- tion of many persons who represented it to be novel and unpre- cedented, it is but a copy of the constitutions of New Hampshii-e, 338 LECTURES ON CONSTITUTIONAL LAW. lecturk VII. courts as the Congress may, from time to time, The Act of March ^^,^1^.^ and establish." The Supreme There Can, therefore, be but one such court, ^''""' but one which is supreme.^ The establishment of that great tribunal is positively required by this provision, while, in that which follows, the establishment of inferior courts is left to the discretion of Congress. The Supreme Court, once in existence, cannot be abolished, because its foundation is not in an act of the legislative department of the Govern- ment, but in the Constitution of the United States.^ It is true, an act of Congress was Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and he applauds the wisdom of committing the judicial power, not to a part of the Legislature, but to distinct and independent bodies of men. 1 The court of errors, or of cassation, in France, is the highest judicial tribunal in the kingdom. The principle on which, until recently, it proceeded, was this : If the judgment of an inferior court was reversed, the case was sent back to be tried again. If the court below persisted in its error, and the case was again appealed, and the court above reaffirmed the judgment before pro- nounced, it was sent back a second time. But if the inferior court still perseveied in its error, the decree of the court of cassation no longer afforded the governing rule. The Legislature was ihen ap- pealed to to settle the law by a declaratory act. But the absurdity of the scheme, the temptation which it held out to the legal tribimals to resist the judgment of the highest court, and to unsettle all the principles of law, produced so much mischief, that in 1837 the English and American procedure was adopted ; and the determina- tion of the court of cassation is now final, and absolutely binding upon all other tribunals. Grimke on Nature and Tendency of Free Institutions, p. 300 (Cincinnati, 1848). 2 Chief Justice Taney, in the last judicial paper which he pre- pared, wrote as follows: "The Supreme Court does not owe its existence or its powers to the legislative department of the Gov- ernment. It is created by the Constitution, and represents one of the great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appro- THE JUDICIAL POWER OF THE UNITED STATES. 339 necessary to define the number of judges which lecture yii. should constitute that court, as well as to limit 'j^''" ^"p*"^™* ' _ Court. their jurisdiction and provide for their compen- sation ; ^ but that once done, the existence of the court is an established fact. It cannot be abolished, nor its judges legislated out of exist- ence,''^ although it has been forcibly urged, and priate duties and powers, and made each independent of the other in performing its approi^riate functions. The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. . . . The existence of this court is therefore as essential to the organization of the Government established by the Constitution as the election of a President or members of Congress. It is the tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution." Gordon v. United States, 117 U. S. (Appendix), 699, 700. 1 The act approved April 29, 1802, 2 Stat. 156, made the Supreme Court to consist of a Chief Justice and six Associates, which num- ber was increased to eight by an act approved March 3, 1837, 5 Stat. 176, c. 34. Rev. Stat. sec. 673. 2 Animadverting upon the great power of the Supreme Court, Mr. Van Buren said in the Senate in 1820: " It has been justly observed that there exists not upon this earth, and there never did exist, a judicial tribunal clothed with powers so various and so important as the Supreme Court. . . . Not only are the acts of the national Legislature subject to its review, but it stands as the umpire between the conflicting powers of the General and State governments. That wide fiield of debatable ground between those rival powers is claimed to be subject to the exclusive and absolute dominion of the Supreme Court. ... In virtue of this power, we have seen it holding for naught the statutes of powerful States, which had received the deliberate sanction, not only of their Legis- latures, but their highest judicatories, composed of men venerable in years, of unsullied purity, and unrivalled talents — statutes on the faith of which immense estates had been invested, and the inheritance of the widow and the orphan were suspended. You have seen sxach statutes abrogated by the decision of this court, and those who had confided in the wisdom and power of the State authorities plunged in irremediable ruin, — decisions final in 340 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. probablj witli truth, that all the other courts Tho! Supreme |^ legislative act, be abolished, and their Court. ' v' o ' ' powers conferred on other courts, or subdivided in different modes. Judges hold oflice The concludiiig clausc of the first section fixes havio?.°°" ^' ^till more clearly the status of these judicial ofhcers. " Tlie judges, both of the Supreme and inferior courts, shall hold their offices dur- ing good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.^ The judges of the Supreme Court, as we have just seen, cannot be legislated out of office, whatever mio;ht be the result as to the other judges of the United States if the inferior courts their effect and ruinous in their conse(iuences. I speak of the power of the court, not of tlie correctness or incorrectness of its decisions. With that we have nothing to do. But this is not all. It not only sits in final judgment upon our acts, as the highest legislative body known to the country — it not only claims to be the final arbiter between the Federal and State governments, but it exercises the same great power between the respective States forming the great confederacy and their own citi- zens. . . . Add to the immense powers of which I have spoken [the regulation of commerce and tlie power to determine the validity of all legislative acts] those of expounding treaties, . . . of deciding controversies between the States and the citizens of the different States ; and the justice of the remark will not be ques- tioned, that there is no known judicial power so transcendently omnipotent as that of the Supreme Court of the United States." 4 Elliot's Debates, 485. 1 Chief Justice Taney wrote a letter dated February 15, 1863, in which the position was taken that the act of Congress which imposed a tax of three per cent, so far as it applied to the judges of the Supreme Court, was an unconstitutional diminution of their salaries ; and that they could not be diminished by taxation or other- wise. This letter was ordei-ed by the court on the 10th of March, 1863, to be recorded in its minutes. Tyler's Life of Taney, 432. THE JUDICIAL POWER OF THE UNITED STATES. 341 were abolished. None of these officers shall be Lecture vil removed diiriiitr good behavior, nor when the '!"*^P** ''"''! ? ''* ^ c? ' during good b©- Legishiture lias once fixed their compensation, bavior. can it be diminished during the term of the judge then in office.^ There is an obvious reason for that. As has been before remarked, the judicial branch of the Government is the weakest of all.^ It has 1 Marshall said iu the Virguiia Convention of 1820 : "The judi- cial department conies home in its effects to every man's fireside ; it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent, with nothing to control him but God and his conscience ? I have always thought, from my earliest "youth till now, that the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary." '•In the general course of human nature, a power over a man's subsistence amounts to a power over his will." The Federalist, No. 79. 2 The author of the Federalist, No. 78, quotes this sentiment in the strong language of Montesquieu : "Of the three powers [the legislative, executive, and judicial], the judiciary is next to noth- ing." Spirit of Laws, vol. 1, p. 186. He proceeds to say that the judiciary has no influence over either the sword or purse ; no direc- tion either of the strength or of the wealth of society, and can take no active resolution whatever ; and that it is incontestably the weakest of the three departments of power ; that it can never attack with success either of the other twOj and that all possible care is requisite to enable it to defend itself against their attacks. " While by the Constitution the judicial department is recog- nized as one of the three great branches among which all the powers and functions of the Government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the en- forcement of their judgments upon officers appointed by the Execu- tive and removable at his pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon the public sense of the necessity of the existence of a tribunal to which all may appeal for the assertion and the protection of rights guaranteed by the Constitution, and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives." United States v. Lee, 100 U. S. 190, 223. 342 LECTURES ON CONSTITUTIONAL LAW. lecttjrk VII. neither the purse nor the sword. It is depend- durhig good be-"^^ ^^^ upon annual appropriations for the bread havior. upon whicli its judges live. The courts are dependent upon the President to furnish mar- shals to execute their decrees. If, then, they are to administer the Constitution according to its true spirit, as the protectors and guardians of the weak against the strong, and to uphold the rig:hteous cause ao;ainst the encroachments of injustice, they must be shielded by guarantees of the needful independence in order that they may act impartially.^ The makers of this wonderful instrument which we are considering, were per- fectly aware of the waves of passion which fre- quently run through the legislative and executive branches of the Government. They knew that these judicial bodies would be called upon occa- sionally to point out what the Constitution means ; that it might even become necessary to declare that certain enactments of Congress were void and of no effect, because they were 1 Mr. Justice Johnson remarked, in the case of Martin v. Hun- ter's Lessee, 1 Wheat. 304, 381, " God forbid that the judicial power in these States should ever, for a moment, even in its humblest departments, feel a doubt of its own independence." And Hamilton says in the Federalist, No. 78, "The complete independence of the courts of justice is peculiarly essential in a limited constitution." 2 u This principle, which has been the subject of so much deserved eulogy, vras derived from the English constitution. The English judges anciently held their seats at the pleasufe of the king, and so does the lord chancellor to this day. It is easy to perceive what a dangerous influence this must have given to the king in the administration of justice, in cases where the claims or pretensions of the crown were brought to bear upon the rights of a private indi- vidual. . . . The Act of Settlement of 12 and 13 Wm. III. c. 2, established the commissions of the judges quamdiu se bene gesse- THE JUDICIAL POWER OF THE UNITED STATES. 343 unconstitutional,''^ and that they might thus pro- lecture vii. 1 • 1 . 1 .'Ti 1 1 • T Judges hold office voke vn-ulent hostihty and popmar P»'^'j<^idice. j^j.i,,gg^Qjjij^. So they said that their salaries should not be bavior. diminished, because they were not in accord with the legislative or executive departments of the Government, or in sympathy Avith the prevalent currents of popular feeling in the com- munity. And they went further and said also that these judges should not be turned out of office, but should remain as long as they lived, provided they behaved themselves.^ I am not going to discuss now the question of how well they have behaved. Their opinions and actions have become a part of the public history of this great land. If they are guilty of misconduct the same instrument which pro- rint. The excellence of this provision has recommended the adop- tion of it by other nations of Europe." 1 Kent Com. 292, 293. The Americans have acknowledged the right of judges to found their decisions on the Constitution, rather than on the laws. In other words, they have left thera at liberty not to apply such laws as may appear to them to be unconstitutional. I am aware that a similar right has been claimed, but claimed in vain, by courts of justice in other countries ; but in America it is recognized by all the authorities. De Tocqueville, vol. 1, p. 80, (ed. 1838, N. Y.). " There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid." The Feder- alist, No. 78. 1 A most ancient precedent in favor of the establishment of an independent judiciary is the statute of Alfonso V of Aragon, in 1442, providing they should continue in office during life, removable only on sufficient cause by the king and Cortes united. Prescott's History of Ferdinand and Isabella, vol. 1, p. 108. Introduction, sec. 2, p. 74 (5th ed. London, 1849). And it is the best expedient which can be devised in any gov- emment to secure the steady, upright, and impartial administration of the laws. The Federalist, No. 78. 344 LECTURES ON CONSTITUTIONAL LAW. lectiuk VII. tects them in the proper administration of their Judges hold office (]^^igg provides tlie means by which the per- during good be- ^ ^ . . , . havior. sonal responsibility for their misbehavior may be brought home to them. The only mode for determining that is by impeachment. If fomid guilty they may be removed from office, and thenceforth disqualified to hold or enjoy any office of honor, trust, or profit under the United States. One judge of the Supreme Court of the United States went through that process, but he came out unhurt.^ Original juris- Wc liavc tlius far only considered the first diction of the paragraph of the second section. We come now Supreme Court, x o i • i i to the second paragraph, which provides that " 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." ^ That is to say, there are some classes of cases where a litigant need not go through the forms of the lower courts ; it is not necessary that his claim or right be passed upon by the District or Circuit Courts, or any other tribunal ; but if he 1 Samuel Chase, appointed by President Washington an Asso- ciate Justice of the Supreme Court in 1796, was impeaclied in 1804, at the instigation of John Randolph, for various alleged arbitrary, oppressive, and unjust acts and conduct on the bench. [Trial, vol. 1, pp. 25-10:1.] He was arraigned in 1805, but was acquitted after a long trial. He died June 19, 1811. See Lanman's Biog. Annals ; Trial of Judge Chase ; Annals of 8th Congress, 2d Session, pp. 81-076. 2 The Supreme Court has original jurisdiction only in the two classes of cases mentioned in this clause. The appellate jurisdic- tion extends to all other cases within the judicial power of the United States. See cases reviewed in Ex parte Yerger, 8 Wall. 85, 95. TUE JUDICIAL POWER OF THE UNITED STATES. 345 be an ambassador, a public minister, or consul, lecturk vii. or if a State be a party (provided it be in the ^.T'""' J"''"" ■i ./ M diction of the capacity of plaintili", unless sued by another Supreme court. State), then the action may be brought at once in the Supreme Court of the United States in its original jurisdiction. Of course these classes of persons are not very large, nor will the cases in which a State is a party ever be very great, so that the number of suits coming within the original jurisdiction of that court has always been and will always continue to be very small. It never amounts to more than eight or ten cases upon the docket of any one term. The word ''original" does not appear else- where in the Constitution, and is used in this clause in contradistinction to what is termed its " appellate " jurisdiction. Under the latter head comes the great mass of cases to which the power of the Federal Government extends. The con- cluding clause of the paragraph is as follows : "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." The Congress, therefore, can control very its appellate largely the appellate jurisdiction of the United J>^isdiction. States Supreme Court. It has done so, by pass- ing laws at various times regulating that juris- diction.^ One of its earliest enactments upon ^ It is essential to the jurisdiction of the Supreme Court of the United States over the judgment or decree of a State court, that it shall appear that one of the questions meutioued in the statute 346 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. Its appellate jurisdictiou. tlie subject was, that no ordinary suit between individuals could come to the .Supreme Court for revision unless the amount involved was over two thousand dollars. It is now five thou- sand dollars, and it has been urged that this should be enlarged to ten or twenty thousand dollars, either by the creation of some inter- mediate appellate tribunal, or otherwise. This is proposed in order that the Supreme Court may be relieved from the consideration of a great number of less important matters which are brought to its attention, and so that only cases involving great amounts, as well as certain other cases where the Constitution of the United States is involved, or where there is a conflict between State and Federal authority, shall go up to that court under the head of its appellate jurisdiction.^ The third paragraph of the second section provides that " the trial of all crimes, except in cases of impeachment, shall be by jury," and concludes by directing where such trial shall be held. This subject will be more appropriately treated in some observations which will be made concerning the system of trial by jury. The must have been raised and presented to the State court ; that it must have been decided by the State court against the riglit claimed or asserted by tlie plaintiff in error, under tlie Constitution, treaties, laws, or autliority of the United States, or tliat such a decision vv^as necessary to the judgment or decree rendered in the case. Murdock v. City of Memphis, 20 Wall. 500. ^ The jurisdiction does not depend u^Don tlie amount of any con- tingent loss or damage which one of the parties may sustain by the decision against him, but by the amount in dispute between them. lioiss V. Prentiss. 3 How. 771. THE JUDICIAL POWER OF THE UNITED STATES. 347 cases in which impeachment is the proper lkctukk vii. method of procedure is also separately consid- .•|,^risIifctiou*' ered under its appropriate head. The third and last section of Article III is devoted to defining what is treason, and point- ing out certain restrictions upon the power of the courts to convict of that offence. Congress is given the power to declare what punishment shall be meted out to the offender, "but no attamder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." This subject will also be more appropriately considered in connection with others of the same general character. It will thus be seen that the Constitution of The courts are the United States has created a judicial depart- payment of the ment of this Government as one of its three Ooverumeut. great branches, to which it has exclusively dele- gated all judicial power,^ with the exception of the trial of impeachments. It prescribes with wonderful clearness the classes and kinds of suits which may be brought before it ; it defines the persons who are privileged to sue, either in its highest forum or in its lower grades, and marks out the method in which trials are to be had. To this department is confided the judicial power of the Government.^ It is perhaps true 1 In cases arising during the reconstruction period, the extent and essential character of tlie judicial power, and its relation to the legislative and executive functions of the Goveninient, were dis- cussed at length. Georgia v. Stanton, G Wall. 50 ; United States V. Lee, 106 U. S. 196. 2 The judicial power of the United States, considered with ref- 348 LECTURES ON CONSTITUTIONAL LAW. lkcture VII. that the lines which separate the legislative and The courts are ^j^^ uidicial Dower are sometimes not very clearly the judicial de- j i ^ d j partmcnt of the defined, but they are becoming more and more (Government. rni i • "T'i i*1" l Deiinitionof "ju- ^*^- -^ hat IS a jiidicial power Avhich, in a coiitro- diciai power." vcrsy, dccidcs the right to property between citizens or proper parties. Such a determina- tion is not a legislative power. If a legislature, or at least such a body acting within the do- minion of the Government of the United States, should undertake to declare that certain prop- erty which belonged to A should become the property of B, it would be an invasion of the judicial function, and therefore wholly inopera- tive and void.^ No court would hesitate to de- clare that such a determination was within the province of the courts alone ; that the legislature could not effect it, because of this separation of the judicial and legislative powers which is made by the Constitution.^ 2 erence to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human govern- ments have exhibited. Curtis' Constitution. 1 There is nothing in the Constitution of the United States which forbids the legislature of a State to exercise judicial func- tions. Satterlee v. Matthewson, 2 Pet. 413. A legislature cannot, however, declare what the law was, but what it shall be. — Ogden V. Wackledge, 2 Cranch, 272. A resolution by the legislature of Tennessee, that a criminal should be discharged by a court, was held to be an unwarranted assumption of power on the part of the legislature, and void. State V. Fleming, 7 Humphreys, 152. The legislature cannot gi-ant a new trial, ol- direct the court to order it. De Chastellvx v. Fairchild, 15 Penn. St. 18. 2 The power vested in the American courts of justice of pro- nouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies. De Tocqueville, Dem. in America, vol. 1, p. 83 (ed. N. Y.) 1838. TUE JUDICIAL POWER OF THE UNITED STATES. 349 It is true that the Executive may, under cer- lectdrk vii. tain circumstances, invade the personal riglits of ^^"'"-'"''' *^'"^'"*- the individual, as regards his liberty. It has been dune in cases of emergency ; it may be done again. The privilege of the writ of habeas corjyus may be suspended, when, in cases of rebellion or invasion, the public safety may re- quire it. The President, or the executive officers, may order a man into imprisonment, provided the necessity of the case warrants such action. But in all these cases they are bound to be care- ful to exercise their power within the law.^ The highest judicial power in England is subordinate to the leg- islative power, and bound to obey any law that Parliament may pass, although it may, in the opinion of the court, be in conflict with the principles of Magna Charta or the Petition of Rights. Taney, C. J., in Gordon v. United States, 117 U. S. 699. But in the United States, if a legislative act oppugns a constitu- tional principle, the fonner must give way, and be rejected on the score of repugnance. In such case it will be the duty of the court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority ; it lies at the foundation of all law, and is a rule and commission by which both legislators and judges are to proceed. Vunhorn''s Lessees v. Dor- rance, 2 Dall. .304. ^ The provisions in the constitutions and laws of the various States by which the right to the writ of habeas coiinis has been secured to the people, incorporated the substance of the famous act of 31 Car. II, c. 2, which has frequently been termed the second Magna Charta of Great Britain. The right to suspend this writ in the United States is expressly confined to cases of rebellion or inva- sion, where the public safety may require it. Mr. .lefferson was opposed to the suspension in any case whatever of the " eternal and unremitting force of the habeas corpus laws." This subject was earnestly debated during the late civil war, but very few cases were ever brought to the attention of the courts. Perhaps the most important was Ex parte 3Ierr>jinan, Taney's, C. Ct., Decisions, 246. Merryman was arrested May 26, 1861, in the State of Maryland by a military force acting under the orders of General Cadwallader and confined in Fort McHenry. Chief Justice Taney, sitting at chambers, issued a writ of habeas corpus. 350 LECTURES ON CONSTITUTIONAL LAW. lkcture VII. Whenever they act arbitrarily, and thus infringe a eascojpus. ^j^^ rights of any man by creating a law for themselves, in violation of the restrictions which both the Constitution and the laws have thrown around private rights, they invade the judicial functions and powers of the United States, and the courts will set that man at liberty, if their mandates are observed.^ but the officer to whom it was directed refused to produce the petitioner on the ground that he had been arrested for treason, and that the President of the United States had suspended the writ for the pubHc safety. Chief Justice Taney simply filed his opinion, holding the petitioner entitled to be set at liberty, on the ground that Congress was the only power that could authorize a suspension of the privilege of the writ, and issued an attachment which the officers in charge of the fort would not permit to be served. It was with the tacit consent or permission of Congress that the power was exercised during the rebellion by the President to sus- pend the action of this writ. March 3, 1863, Congress, however, determined to definitely regulate the matter, and passed an act which, among other things, gave the President the right, during the existing rebellion, to suspend the writ, whenever in his judgment the public safety might require it. 12 Stat. 755. 1 The constitutional provision that no person shall be deprived of life, liberty or property without due process of law, nor private property be taken for public use without just compensation, relates to those rights whose protection is peculiarly within the province of the judicial branch of the Government. See examination of cases, showing that the courts extend protection when the rights of prop- erty are unlawfully invaded by public officers. United States v. Lee, 106 U. S. 196. NOTES UPON LECTURE VII. Following the example set by Mr. Justice lectukb vn. Miller in this lecture, I will first consider some general subjects, applicable alike to all cases arising under any grant of judicial power, and then consider each grant separately, so far as may be advisable after the full treatment of these subjects in the lecture. 1. Courts are created for Judicial Purjooses only. The purpose of the f raraers of the Constitu- Attempts to im- tion to divide the powers of the Government H" "°""-""^'f'*^ A duties upon the into three branches, executive, legislative, and eoum. judicial, might have been frustrated, so far as the judiciary were concerned, but for its power to protect itself by pronouncing any law impos- ing other duties upon it, to be an infringement of its constitutional rights. As early as 1792 Congress made such an attempt. The Judiciary Act of 1789 had gone into effect, the districts and circuits had been created, the judges had been appointed, and the new courts found themselves with little to do. On the 23d of March, 1792, Congress enacted a law " to provide for the settlement of the claims of widows and orphans barred by the limitations 351 courts. 352 LECTURES ON CONSTITUTIONAL LAW. i.ECTURK VII. heretofore established, and to regulate the claims Auemi.tst«im- ^^ i,^^^\i^ pensions." ^ pose non-jtidicial ^ duties upon the Tliis act imposed upon courts of the United States the duty of hearing applications for pen- sions, and of deciding whether the applicant should be put upon the list. It made a Pension Bureau of a court that was practically without judicial employment. The Circuit Court for the District of New York, consisting of Chief Justice Jay, Mr. Jus- tice Cushing, and Judge Duane, the District Judge, on the 5th of the following April, after consideration, unanimously held : — " That, by the Constitution of the United States, the Government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on the other ; that neither the legislative nor the executive branches can constitutionally assign to the judi- cial any duties but such as are properly judicial, and to be performed in a judicial manner ; and that the duties assigned to this circuit, by this act, are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Sec- retary at War, and then to the revision of the Legislature ; whereas, by the Constitution neither the Secretary at War. nor any other 1 1 Stat. 243, c. 11. NOTES UPON LECTURE VII. S-'iS executive officer, nor even the Legislature, are lecturk vii. ,A • 1 , •, L r J.^ ' ^' Attempts to irn- authorizecl to sit as a court ot errors on the jucli-p^^^ non-jiwiiciai cial acts or opinions of this court." They held, duties upon the however, that they could proceed as commission- ers to perform these duties. In the District of Pennsylvania, the Circuit Court, consisting of Justices Wilson and Blair of the Supreme Court, and Judge Peters of the Dis- trict Court, on the IStli April, 1792, addressed a letter to the President, declining to proceed : " 1st, because the business directed by this act is not of a judicial nature." " 2d, because, if upon that business the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act be revised and con- trolled by the Legislature, and by an officer in the executive department." Mr. Justice Iredell and Judge Sitgreaves, District Judge of North Carolina, sitting in Cir- cuit Court, addressed a letter from that circuit to the President on the 8th of June, 1792, set- ting forth substantially the same thing.^ On the 17th of February, 1794, the question came before the Supreme Court in a case which was not reported at the time, but which was made the subject of a note, subsequently prepared by Mr. Chief Justice Taney, and inserted at the end of United States v. Ferreira"^ by his direction.^ This case was heard in circuit at New Haven, on May 3, 1792, before Chief Justice Jay, Mr. J Haybttrn's Case, 2 Dall. 408 ; 409, note. 2 13 How. 40. * United States v. Yale Todd, 13 How. 52,. note. courts. 854 LECTUKES ON CONSTITUTIONAL LAW. i>ROTiinK VII. Justice Gushing, and Judge Law, the District Attempts ,oi,u- j^ rpj adhcrcd to the decision of the pose iioii-jiKlieiai o 'J duties upou the Circuit Court of Ncw York, except that, on reflection, they did not think they could act out of court as commissioners. Chief Justice Taney, in his note, sums up the result of all the opinions as follows : — " 1. That the power proposed to be conferred on the Circuit Courts of the United States, by the act of 1792, was not judicial power within the meaning of the Constitution, and was, there- fore, unconstitutional, and could not lawfully be exercised by the courts : " 2. That as the act of Congress intended to confer the power on the courts as a judicial function, it could not be construed as an authority to the judges composing the court to exercise the power out of court as commissioners : " 3. That money paid under a certificate from persons, not authorized by law to give it, might be recovered back by the United States." He further adds : "In the early days of the Government, the right of Congress to give orig- inal jurisdiction to the Supreme Court, in cases not enumerated in the Constitution, was main- tained by many jurists, and seems to have been entertained by the learned judges who decided Todd's Case. But discussion and more mature examination have settled the question otherwise ; and it has long; been the established doctrine, and we believe now assented to by all who have examined the subject, that the original jurisdic- tion of this court is confined to the cases speci- NOTES UPON LECTURE VII. 355 fied in the Constitution, and that Congress can- lkctuue vii. not enlarcre it. In all other cases its power ^"""^"' !^''"" , o 1 pose iion-jiulicial must be appelUlte." 'lntles upon the The same questions were afterwards discussed in Gordon v. United States,^ on an appeal from the Court of Claims; and in United States v. Jones^ explanatory of that case. The cases settle the principle that courts created by law to exercise the judicial power conferred by the Constitution of the United States are purely judicial bodies. The converse of this proposition does not hold good as to legislative bodies, existing under the laws of the United States. At October Term, 1857, it was held by a majority of the Supreme Court that a territorial statute of Oregon, dis- solving the bonds of matrimony betw^een a hus- band and his wife, (the husb;Uid being a resident of Oregon, the wife and children residents in Ohio where they had been left by the husband under promise that he would return or send for them, and the statute being enacted on the husband's application, without knowledge of the wife,) was an exercise of the legislative powder of the territory on a rightful subject of legislation, according to the prevailing judicial opinion of the country, and the understanding of the legal profession at the time when the act of Con- gress establishing the territorial government w\as enacted (August 15, 1848).^ 1 2 Wall. 561 ; 117 U. S. 697. 2 119 U. S. 477. 3 Maynard v. Hill. 125 U. S. 190. 356 LECTURES ON CONSTITUTIONAL LAW. Lecture vil So extreme a case as this, where manifest in- Atteinpts to im- ^^gj-j^g y^^^ done Under the form of law, shows pose iion-juaicial •' duties upon the that legislatures ought not to exercise judicial powers ; or, at least, if they do exercise them, should be required to cite in all interested parties before they do it. 2. How far the Laws of the Place of Trial prevail. Local law : when The courts of the United States are neces- prevaiiing. sarily held within the domains of forty-four independent States ; to say nothing of the Ter- ritories and the District of Columbia. The subjects of controversy which they have to adjudicate ujDon generally grow out of as many different systems of law, and are tried in locali- ties having as many different systems of practice. On this subject the Revised Statutes of the United States have made some provisions which are printed in the margin.^ ^ "Sec. 722. The jurisdiction in civil and criminal matters, con- ferred on the District and Circuit Courts by the provisions of this title, and of title "Civil Rights," and of title "Crimes," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in con- formity with the laws of the United States, so far as such laws are suitable to carry the same into effect ; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offences against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not incon- sistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposi- tion of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty." " Sec. 914. The practice, pleadings, and forms and modes of pro- NOTES UPON LECTURE VII. 6-j1 The adoption of State systems of remedy lecture vii. stops, however, when they conflict with the "^^jj^j^V ^^ '*^" Constitution ; as, for instance, the blending of remedies at law and in equity, so as to deprive a litigant of his constitutional right to a trial by jury, where his remedy is a remedy at com- mon law. This question has often arisen. In a late case^ from Mississippi, the opinion of the court was delivered by Mr. Justice Field. He said : " The general proposition, as to the enforce- ment in the Federal courts of new equitable rights created by the States, is undoubtedly cor- rect, subject, however, to this qualification, that such enforcement does not impair any right con- ferred, or conflict with any inhibition imposed, by the Constitution or laws of the United States. Neither such right nor such inhibition can be in any way impaired, however fully the new equi- table right may be enjoyed or enforced in the States by whose legislation it is created. The Constitution, in its Seventh Amendment, de- clares that " in suits at common law, w^here the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." In the Federal courts this right cannot be dis- pensed with, except by the assent of the par- ties entitled to it, nor can it be impaired by ceeding in civil causes, other than equity and admiralty causes, in the Circuit and District courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District courts are held, any rule of court to the contrary notwithstanding." 1 ScoU V. Neely, 140 U. S. 106. 358 LECTURES ON CONSTITUTIONAL LAW. lkcturk VII. any blending with a claim, properly cognizable Local law: when ^^ ^^^^ ^£ adeniand for equitable relief in aid of inevailing. ' J the legal action or during its pendency. Such aid in the Federal courts must be sought in separate proceedings, to the end that the right to a trial by a jury in the legal action may be preserved intact." "The Code of Mississippi gives to a simple contract creditor a right to seek in equity, in advance of any judgment or legal proceed- ings upon his contract, the removal of obsta- cles to the recovery of his claim caused by fraudulent conveyances of property. There the whole suit, involving the determination of the validity of the contract, and the amount due thereon, is treated as one in equity, to be heard and disposed of without a trial by jury. It is not for us to express any opinion of the wisdom of this law, or whether or not in its operation it is more advantageous in the interests of justice than an entire separation of proceedings a^ law from those for equitable relief. It is sufficient that under the statute of the United States such separation is required in the Federal courts, and by the Constitution, in cases at common law, a right to a trial by jury is secured to the defend- ant." As to the more essential matter, the law which is to determine the rights of the parties to the controversy, the rule in this respect is thus stated by Mr. Justice Bradley in a carefully con- sidered opinion : ^ 1 Burgess v. Seligman, 107 U. S. 20, 33, 34. NOTES UPON LECTURE VII. 359 " The existence of two co-ordinate jurisdictions lectup.b vii. Ix)Ciil law : construed. in the same Territory is peculiar, and the results ^^"^! '^"^ " *'"^ would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the State courts, it necessarily hap- pens that, by the course of their decisions, cer- tain rules are established which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of State constitutions and statutes. Such estab- lished rules are always regarded by the Federal courts, no less than by the State courts them- selves, as authoritative declarations of what the law is. But when the law has not been thus settled, it is the right and duty of the Federal courts to exercise their own judgment ; as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transactions have been en- tered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the State tri- bunals, the Federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the State courts after such rig:hts have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the Federal courts will lean towards an agreement of views with the State 360 LECTURES ON CONSTITUTIONAL LAW. i.KCTuuE VII. courts, if the question seems to them hahanced coustiued '°^ with doubt. . . . As, however, the very object of giving to the National courts jurisdiction to administer the laws of the States in controver- sies between citizens of different States was to institute independent tribunals, which it might be supposed would be unaffected by local preju- dices and sectional views, it would be a derelic- tion of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication." ^ 3. The Right to Trial hy Jury. Trial by jmy. Tliis Constitutional right, so far as it relates to civil cases, has been sufficiently considered. In regard to persons accused of criminal offences before a police court, without a jury, it was held at October Term, 1887, that the Police Court of the District of Columbia was without constitutional power to try, convict, and sentence to punishment a person accused of a conspiracy to prevent another person from pursuing his calling and trade anywhere in the United States, and to boycott, injure, molest, oppress, intimi- date, and reduce him to beggary and want, although the Revised Statutes relating to the District of Columbia provide that, " Any party deeming himself aggrieved by the judgment of the police court may appeal to the Supreme Court " of the district : as the provisions of the 1 See Hardin v. Jordan, 140 U. S. 371 ; Mitchell v. Smale, 140 U. S. 406 ; St. Louis v. Rutz, 138 U. S. 226 ; Barney v. Keokuk, 94 U. S. 324 ; Packer v. Bird, 137 U. S. 661. NOTES UPON LECTURE VII. 361 Constitution relating to trial by jury are in force lecti:re vii. in the District of Columbia.^ ^""^ ^^ ^'"^^' It is held that the Sixth Amendment provid- ing for the trial in criminal prosecution by a jury of the State and district wherein the crime shall have been committed, has reference only to offences against the United States committed within a State.'^ 4. Ambassadors, other Piiblic Ministers, and Consuls. The statute which regulates this jurisdiction suits by ambassa^ is section 687 of the Revised Statutes. " It '^°''' ^''• [the Supreme Court] shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have consistently with the law of nations ; and original, but not exclusive, juris- diction of all suits brought by ambassadors, or other public ministers, or in which a consul or - vice-consul is a party." These provisions are plenary. When such a suit appears upon the docket, and this privilege is claimed either by plaintiff or defendant, the first question to be passed upon is whether he is entitled to it. It has seemed to me that there is, and from the nature of the case can be, but one class of evidence that can establish this fact. Whether a person is or is not a diplomatic rep- 1 Callan v. Wilson, 127 U. S. 540. 2 Cook V. United States, 138 U. S. 157. 362 LECTURES ON CONSTITUTIONAL LAW. Lecture VII. resentative or consular agent of a foreign power, dorr etV"^''"'^'^ accepted as such l)y our Government, is a political fact to be established by the certificate of the Secretary of State. He may have been accepted as such yesterday, and may not be so accepted to-day. The Department of State is the only place where absolutely correct information on the subject can be had. It seems to me that the courts ought, in every case, to insist upon this as the best evidence, to show what the political department of the Government has determined as to the status of the individual. The courts, however, have not gone quite to this extent. In a recent case it is said : ■•' We do not assume to sit in judgment upon the decision of the Execu- tive in reference to the public character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the Department of State that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof." ^ 5. Admiralty and Maritime Jurisdiction. Admiralty juris- Nothing further need be said on this point except that it has recently been held that since the passage of the act of June 19, 1886, 24 Stat. 79, this jurisdiction is extended over cases of limited liability on the navigable rivers of the United States.^ 1 In re Baiz, 1.35 U. S. 403, 4.32. 2 In re Garnett, Petitioner, 140 U. S. 000, NOTES UrON LECTURE VII. 363 6. Controversies between a State and Citizens. The history of the Eleventh Amendment and lecture vii. •i Ti- I 1 i-rii Suits against its application to some recent cases ^ is lully gt^j^es. set forth by Judge Miller. In a still more recent case it was held that, although this amendment applies, in terms, only to suits against a State by citizens of another State, or by citizens or subjects of any foreign state, yet that a State cannot, without its own consent, be sued in a Circuit Court of the United States, upon a suggestion that the case is one arising under the Constitution and laws of the United States.^ Mr. Justice Bradley, in delivering the opinion of the court, said : " Looking back from our present standpoint at the decision in Chisholm V. Georgia, we do not greatly wonder at the effect which it had on the country. Any such power as that of authorizing the Federal judici- ary to entertain suits by individuals against the States, had been expressly disclaimed, and even resented by the great defenders of the Consti- tution, whilst it was on trial before the Ameri- can people." And then, after quoting the views of Hamilton in the Federalist, No. 81, and re- ferring to the dissenting opinion of Justice Iredell, he said : " Looking at the subject as Hamilton did, and as Mr. Justice Iredell did, in the light of history and experience, and the established order of things, the views of the 1 New Hampshire v. Louisiana, 108 U. S. 76. ^ 2 Hans V. Louisiana, 134 U. S. 1. 364, LECTURES ON CONSTITUTIONAL LAW. lkcture VII. latter were clearly right, as the people of the sutej'^''''"^ United States, in their sovereign capacity, sub- sequently decided." ^ In the course of the century which has elapsed, especially in the latter part of it, many attempts have been made to enforce, in the courts of the United States, private rights against a State, by suing its officers. A mass of authority has been created by this litigation, which is admirably and lucidly re- viewed by Mr. Justice Lamar .^ He says : — ''It is well settled that no action can be main- tained in any Federal court by the citizens of one of the States against a State, without its consent, even though the sole object of such suit be to bring the State within the operation of the constitutional provision which provides that ' no State shall pass any law impairing the obligation of contracts.' This immunity of a State from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the State within the reach of the process of the court. Accordingly, it is equally w^ell settled that a suit against the officers of a State, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the State itself. "In the application of this latter principle two classes of cases have appeared in the deci- 1 This subject is further treated in Lecture VIII, on the Supreme Court of the United States. 2 Pennoyer v. McConnaughty, 140 U. S. 1. , NOTES UPON LECTURE VII. 3bO sions of this court, and it is in determining to lectorb vir. which class a particidar case belongs that dif- stales*^*""*' fering views have been presented. " The first class is where the suit is brought against the officers of the State, as representing the State's action and liability, thus making it though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts.^ " The oilier class is where a suit is brought against defendants who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit, whether brought to recover money or property in the hands of such defend- ants, unlawfully taken by them in behalf of the State, or for compensation in damages, or, in a proper case where the remedy at law is inade- quate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain, legal duty, purely ministerial, is not within the meaning of the Eleventh Amend- ment an action against the State. ^ 1 In re Aye.rs , 123 U. S. 443 ; Louisiana v. Jrimel, 107 U. S. 711 ; Antoni v. Greenhow, 107 U. S. 769; Cunninr/ham v. Macon & Brunswick Railroad^ 109 U. S. 446; Ilagood v. Southern, 117 U. S. 52. 2 Osborn V. Bank of the United States, 9 Wheat. 738 ; Davis v. Gray, 10 Wall. 203 ; Tomlinson v. Branch, 15 Wall. 400 ; Litch- field V. Webster County y 101 U. S. 773 ; Allen v. Baltimore & Ohio Railroad, 114 U. S. 311 ; Board of Liqtudation v. McComb, 92 U. S. 531 ; Poindexter v. Greenhotv, 114 U. S. 270. 366 LECTUllES ON CONSTITUTIONAL LAW. Lecture VIL Suits against States. " It is not our purpose to attempt a review of all, or even many, of these decisions, as to do so intelligently would unnecessarily protract this opinion, and in this connection, would subserve no useful purpose. It will be sufficient, perhaps, to refer to some of those which this case most nearly resembles." Then, after referring to the cases cited in the margin,^ he continued : — " The dividins; line between the cases to which we have referred and the class of cases in which it has been held that the State is a party de- fendant, and, therefore, not suable, by virtue of the inhibition contained in the Eleventh Amend- ment to the Constitution, was adverted to in Cunningham v. 2Iacon &, Brunsivick Railroad^ where it was said, referring to the case of Davis V. Gray : ' Nor was there in that case any affirm- ative relief granted by ordering the governor and land commissioner to perform any act towards 'perfectlncj the title of the company' Thus hold- ing, by implication, at least, that affirmative relief would not be granted against a State officer, by ordering him to do and perform acts forbidden by the law of his State, even though such law mi2;ht be imconstitutional. "The same distinction was pointed out in 1 Osborn V. Bank of the United States, 9 Wheat, 738, 859 ; iVew Hampshire v. Lonisiana, 108 U. S. 70 ; In re Ayers, 123 U. S. 443; Davis V. Grail, 1^ Wall. 203 ; Board of Liquidation v. ilcComb, 92 U. S. 531 ; roindcxter v. Greeuhoiv, 114 U. S. 270 ; Allen v. Balti- more <& Ohio Railroad Co., 114 U. S. 311 ; McGahey v. Virr/inia, 135 U. S. 662. 2 109 U. S. 446. NOTES UPON LECTURE VII. 367 Ilafjood V. Southern, which was held to be, in lkcturk vii. effect, a suit a;li there have been some differences in court upon the question of how far an action against an ofhcer of a State may be held to be a suit against the State, so as to come within the principle of the Eleventh Amendment to the Constitution, excluding the jurisdiction of the Federal courts, yet the main proposition has been steadily sustained, that if it be essentially a suit against the State the Federal courts can- not entertain it. In view of the many millions of dollars of indebtedness of the States, which they refuse to pay, the importance of the origi- nal decision, which evoked the constitutional amendment forbidding the States to be sued in the Federal courts, is readily to be perceived. Another judgment of the Supreme Court a little later, rendered at the February Term, 1803, which has been very far-reaching in its influence upon the other departments and other officers of Mdrhunjv.Madi- the Government, was made in the case of Mar- hury V. Madison} I have already said that Marshall, although Chief Justice of the Supreme Court, had con- tinued to act as Secretary of State until the close of John Adams's administration, when the latter was succeeded by Jefferson. The com- missions of certain officers, signed and sealed by the President, and ready for delivery, were left in the office of the Secretary of State, which the succeeding Secretary, Mr. Madison, refused to deliver to the parties thus commissioned. The ton, 1 Cranch, 137. 1 1 Cranch, 137. THE SUPREME COURT. 385 result of this was that Mr. Marbury, who was lecture vin. one of these parties, commissioned as a iustice of ^^"^^'>ni'''-^'<"f>- ^ / ^ J son, 1 Cranch, 1.J7. the peace of the District of Cokunbia, and whose appointment had been approved by the Senate, having demanded the delivery of his commission, applied to the Supreme Court for a writ of man- damus to compel its delivery. The opinion in the case was delivered by Mar- shall himself, as Chief Justice, and was con- curred in by the whole court. It is very lengthy, and an exhaustive discussion of the power of a court of law to compel officers by the writ of mandam^us to discharge duties which it is clear they are bound to perform, and in regard to which they have no discretion. The court de- cides that since the commission was signed and sealed by the President of the United States, and the appointment approved by the Senate, there was no authority in the President or Sec- retary of State to withhold it ; that the duty to deliver it to the person entitled to it was clear and unquestionable, and that this duty could be enforced by any court having jurisdiction of the case. The court, however, came to the conclusion that this was not a case in which it had any original jurisdiction, and it therefore could not issue the writ. But it was also held that such jurisdiction was in the local courts of the District of Columbia, who had authority to issue the writ to any officer within the District who re- fused to perform a duty merely ministerial in its character, in regard to which he could exercise 386 LECTURES OX CONSTITUTIONAL LAW. j>KCTURE viii. no judgment, and that this was of that class of ^«'"^":?'^-f"S' cases. son, 1 Oranch, 137. The immense importance of this decision, though in some respects obiter, since the court declared in the end that it had no jurisdiction of the case, may be appreciated when it is under- stood that the principles declared, which have never since been controverted, subjected the ministerial and executive officers of the Govern- ment, all over the country, to the control of the courts, in regard to the execution of a large part of their duties. Its application to the very highest officers of the Government, except per- haps the President himself, has been illustrated in numerous cases in the courts of the United States, and in the reports of the Supreme Court. Perhaps one of the latest and most instructive United states V. of tlicse is the casc of United States v. Schurz,^ schurz,i(p.u.s. (jgcided at October Term, 1880. It appears that Mr. Schurz, as Secretary of the Interior, after a patent for lands had been granted, signed by the President of the United States, and recorded in the Register of Patents, issued an order to the Commissioner of the Gen- eral Land Office that he should withhold the in- strument, ^and not deliver it to the person named in it. The land department of the Government had been in the habit, after patents for lands were issued, and even after they had been deliv- ered, of recalling them at their own option and revoking them. In many instances, even after 1 102 U. S. 378. THE SUPREME COURT. 387 they had been sent to the local land office for lecturk viii. delivery to the joroper parties, they had been re-^^^'^'^^l^'^Q^u^s called while there, and thus their owners had 378. been put to great inconvenience and trouble. An action for a writ of 'mandamus to compel Mr. Schurz to deliver this patent was brought in the name of the United States on relation of the party applying for the writ, who was the grantee of the land. The Supreme Court held that after the patent had been signed, sealed, and recorded there no longer remained in the officers of the Government any power over the title, or any right to retain, and to refuse to deliver the patent. They therefore authorized the issuing of a writ by the Supreme Court of the District. This decision w\as founded upon Marhury v. Madison, and upon its reasoning, as many other decisions have been ; and the power of the courts in the class of cases described in that opinion — namely, those in which a duty is imposed by law upon an officer of the Government to do a specific act, in regard to which he has no discretion, and which act is simply and purely ministerial in its nature to compel their performance, has been well established, and is one of the most useful principles of Federal jurisprudence. During the long Chief Justiceship of Marshall, many cases of public and political importance, havinsc a larg-e influence over the course of the Government and very materially guiding the action of the executive and legislative depart- ments, came up for consideration. I nuist only select such of these as I consider most imporr 388 LECTURES ON CONSTITUTIONAL LAW. Lecture VIII. United Stiitrs v. Schiirz, 102 U. S. 378. McCiilloch V. Maryland, 4 Wheat. 316, tant, and which can be touched upon within the limits of tliis discourse. The next of these to which I shall call your attention is McCulloch v. Maryland, decided in 1819, and reported in 4 Wheat. 316. It in- volved the question of the power of the General Government to create a national bank, with branches in the States, capable of issuing circu- lating notes. Such a bank had been created under Hamilton's administration of the treasury, and its charter expired about the commence- ment of the war of 1812. A recharter was refused under the influence of the strict con- struction rule of Virginia politics in regard to the power of Congress to create such a bank. Mr. Madison himself, who was then President, was opposed to it, it is said, upon that ground. But the disastrous condition of the public credit, and the general financial ruin which followed the close of that war, induced Congress to charter a new bank. This was done in 1816, and re- ceived the assent of Mr. Madison. The introduction into the States of this insti- tution, by branches of the principal bank, espe- cially with the power of issuing circulating notes, was unpopular in many of them, and attempts were made to resist their business operations. Among these the State of Maryland assessed a tax upon the circulating notes of the bank, which in effect was intended to drive them from the State. In the attempt to enforce this law, the Court of Appeals of Maryland affirmed the validity of the statute of that State establishing THE SUPREME COURT. 389 the tax. McCiilloch, the party sued, thereupon lkoturk viii. brought the case by a writ of error to the Su- '!(' ^ "/'"' ''"" preme Court of the United States. 4 wheat, aie. The opinion takes a very wide range with regard to the nature and power of the Federal Government, and the principles of construction of the Constitution. It is one of the ablest of the opinions delivered by Chief Justice Marshall, and has often b^en referred to and followed in subsequent cases. The court held that Congress had power to incorporate such a bank ; that although there was no express grant of such power, or of au- thority to create any corporation, yet, as one of the appropriate means of exercising the powers of the Government in regard to the collection and disbursement of its revenues and the trans- fer of them from one point to another, the in- stitution of this bank, with the right to establish its branches and offices of discount and deposit within a State, and to issue circulating notes, was an appropriate means of carrying into effect the powers expressly given by the Constitution to the Government of the Union. It therefore held that no State had any au- thority by taxation or otherwise to impede the necessary and proper action of this bank, an instrumentality which Congress deemed neces- sary in carrying on the general operations of the Government of the United States connected with the treasury. " If," said the court, '• the right of the State to tax the means employed by the General Government be conceded, the 390 LECTURES ON CONSTITUTIONAL LAW. Lkcturk YIII. McCiilloch V. Mnrylimd, 4 Wheat. 316. declaration that the Constitution and laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declama- tion." The number of the Justices at this time had been increased to seven, and their opinion was unanimous. Just prior to the expiration of the charter of this bank in 1836, the question of its renewal became one of absorbing public interest. The then President of the United States, General Jackson, brought all his influence and popularity to bear to prevent a renewal of its charter, and the question entered into the partisan politics of the day more largely than any other, and to some extent continued to do so until the late war. The Congress of 1836 passed the bill for the recharter of the bank, but President Jack- son vetoed it, largely on the ground that it was unconstitutional. It may be said, however, that the prevailing sentiment of the country, and especially of its leading statesmen, has been in the main favorable to the constitutionality of the United States Bank ; and no decision of the Supreme Court, or of any other court of the United States, has ever impugned or denied the correctness of the principle upon which McCuUoch V. Maryland was decided. It is a matter of interest, which I cannot for- bear to mention here, that the present national bank system, which in my judgment, and in that of many thinking men, statesmen and financiers, is the best that the world has ever THE SUPREME COURT. 391 seen, originated during the midst of the civil lecture viii. war with the Secretary of the Treasury who ^■''";^''''; ^- afterwards came to Marshall's place, as Chief 4 wiieat. liio. Justice of the Supreme Court of the United States. It is unnecessary for me to point out to this intelligent audience the great influence which that decision of the Supreme Court has exer- cised over the material and financial prosperity of this country. Had the decision been, that there existed in this Government no power to create a national currency, or to provide for a national banking system, the disastrous effects upon the business prosperity of the people can hardly be imagined. Those who are old enough to have gone through the State bank and wild- cat systems of paper money prevalent a few years since in this country, can bear feeling tes- timony to the value of a so-called national bank system. Another decision of the court, made in the Dartmouth coi- same year, and perhaps at the same term, is that 4wiJ[eat''5i8 '"^'^' of Dartmouth College v. Woodward} It may well be doubted whether any decision ever delivered by any court has had such a per- vading operation and influence in controlling legislation as this. The legislation, however, so controlled, has been that of the States of the Union. The decision is founded upon that clause of the Constitution which declares " That no State shall make any law impairing the obliga- tion of contracts." ^ 1 4 Wheat. 518. 2 Art. I, sec. 10. 392 LECTURES ON CONSTITUTIONAL LAW. lkctcui.; VIII. Dartmouth College existed as a corporation jjurtmouth Col. I ^ charter ^ranted by the British Crown to l<''-t^"«tion of i. J o amendments m forbidden. The whole subject was very iwWy Tho. sinufihter argued in that court, and the range of discus- ""**^ ^"*^'' sion was very wide. At the close of the civil war there were many very wise and patriotic statesmen who had come to the conclusion that the powers left with the States in the original formation of the Constitution, by which they were enabled to combine and organize into a formidable con- federacy for the overthrow of the Government and the destruction of the Union, had been the source of a protracted and terrible war, which was just terminated by the re-establishment of the General Government in all its original powers. They therefore felt, that, in the amend- ments to the Constitution which were deemed necessary for the reconstruction of this Union, which if not broken was very much shattered, these powers of the States should be curtailed in their capacity to bring about another such catastrophe. Many of these men were in Con- gress when the resolutions for these amendments were adopted, and proposed to the States for their ratification. The members of that body undoubtedly differed among themselves as to the effect to be attained, and the manner in which it was to be accomplished by these three amend- ments. When this case came up, the first in which the Supreme Court was called upon to construe them, the opinions of the judges, of lawyers, and of statesmen, were divergent in 410 LECTURES ON CONSTITUTIONAL LAW. liECTURE VIII. Construction of amendments in The Slav(/ktcr House Cases. regard to the principles which should govern that construction. These views are represented in the opinions filed in the case mentioned, the opinion of the court being fully concurred in by five of the judges. The court, after speaking of the fact that the civil war disclosed that the true danger to the perpetuity of the Union was in the capac- ity of the States to organize, combine, and con- centrate all the powers of a State and all contiguous States to resistance to the General Government, said : — "Unquestionably this has given great force to the argument, and added largely to the num- ber of those who believe in the necessity of a strong National Government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amend- ments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with powers for domestic and local government, including the regulation of civil rights — the rights of person and property — was essential to the perfect working of our complex form of government, though they have thought proper to impose ad- ditional limitations on the States, and to confer additional power on that of the United States. But whatever fluctuations may be seen in the history of public opinion on this subject during THE SUPREME COURT. 411 the period of our national existence, we think it lkcturk viii. will be found that this court, so far as its f unc- ^'"''7'^'":" "^ ■' ainendineiits in tions required, has always held with a steady Thr simujiucr and an even hand the balance between State ""*'^ ""*^*" and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Con- stitution, or of any of its parts." ^ Although this decision did not meet the ap- proval of four out of nine of the judges on some points on which it rested, yet public senti- ment, as found in the press and in the universal acquiescence which it received, accepted it with great unanimity ; and although there were in- timations that in the legislative branches of the Government the opinion would be reviewed, and criticised unfavorably, no such thing has oc- curred in the fifteen years which have elapsed since it was delivered. And while the question of the construction of these amendments, and particularly the Fourteenth, has often been be- fore the Supreme Court of the United States, no attempt to overrule or disregard this elemen- tary decision of the effect of the three new con- stitutional amendments upon the relations of the State governments to the Federal Govern- ment has been made ; and it may be considered now as settled that, Avith the exception of the specific provisions in them for the protection of the personal rights of the citizens and people of 1 Slaughter House Cases, 16 Wall. 36, 82. 412 LECTURES ON CONSTITUTIONAL LAW. Lecture VIII. Construction of amendments in The Slmighter House Cases. Kilbortrn v. Thompson. the United States, and tlie necessary restrictions upon the power of the States for that purpose, with the additions to the powers of the General Government to enforce those provisions, no sub- stantial change has been made. The necessity of the great powers, conceded by the Constitu- tion originally to the Federal Government, and the equal necessity of the autonomy of the States and their power to regulate their domestic affairs, remain as the great features of our com- plex form of government. The only other decision of the Supreme Court to which I shall call your attention is that of Kilhoimi V. Thompson, 103 U. S. 168. It is principally remarkable as establishing the right of a party to recover damages for an unlawful imprisonment by the express order of the House of Representatives. That body, as well as the Senate, had been in the habit of calling wit- nesses before them to testify in regard to various matters concerning Avhich an investigation had been ordered by one or the other of those bodies. They also seem to have exercised without hesi- tation the power to punish by fine and im- prisonment any witness who refused to answer questions which, by order of the particular body authorizing the investigation, had been pro- pounded to him, and without much if any re- gard to the limitation upon their right to exercise this power. Under a resolution, which recited that the Government was a creditor of the banking firm of Jay Cooke & Company, then in bankruptcy THE SUPREME COURT. 413 by the decree of the District Court of the United lfx;t.urk viii. States for the Eastern District of Pennsylvania, -/hompjon.' and that settlements had been made adverse to the interests of the United States in that court, a special committee of the House of Representa- tives was appointed by the Speaker to inquire into the matter, together with the history of a real estate pool, in which that firm was said to be involved. In the progress of the investiga- tion Mr. Kilboiirn, who was a real estate dealer in the city of Washington, was called before the committee and required to make statements in regard to his dealings with various persons who had had transactions with him, and to produce his books for the general inspection of the com- mittee. He declined to do this, and being brought before the House he was ordered to make answer. Still further declining, the House ordered him to be imprisoned, and that the Speaker issue his warrant to the sergeant-at-arms to commit him for contempt. Mr. Kilbourn was held in confinement under this order for some time, but was finally released on a writ of habeas corjnis issued by the Chief Justice of the Supreme Court of the District of Columbia. He then brought suit against the sergeant-at-arms, by whom he was kept in prison, and against the members of the com- mittee who were active in procuring the order of the House for his punishment. On a de- murrer to the answer of the defendants, which set up this order of the House as their defence, the Supreme Court of the District of Columbia 414 LECTURES ON CONSTITUTIONAL LAW. lectuue VIII. held the answer to be good ; but on a writ of Kiiboura v. ^^^^^^ ^^ ^j^^ Supreme Court of the United States that decision was reversed. The opinion goes into a thorough examination of the history of this dass of questions in various cases before the House of Commons of Great Britain, which were afterwards carried to the courts of that country, and comes to the conclusion that, while in that country, by reason of the history of the Parliament, and of its original possession of full judicial powers, the House of Commons could punish for contempt, there is no inherent authority in any purely legislative body, apart from that remnant of judicial power remaining in the Parliament, to punish parties for offences of that character. Referring to the Constitution of the United States, under which alone Congress, as an entire body or either branch of it, could exercise any such power, it is declared that there is a total absence of any general grant of such authority ; but inasmuch as each branch of Congress had certain specific powers to make orders which re- quired the examination of witnesses, that in that class of cases, where a witness refused to testify, the House could enforce this duty by fine and imprisonment as a punishment for contempt. Those occasions were limited to such cases as punishment of its own members for disorderly conduct, or failure to attend sessions, or in cases of contested elections, or in regard to the qualifi- cations of its own members, or in case of an THE SUPREME COURT. 415 effort to impeach an officer of the Government, lecturk viil Kilbourn v. Thompson. and perhaps a few others. Kdhonm v. It was held that neither House had any right to organize an investigation into the private affairs of a citizen, and that, except in a case in which the Constitution expressly conferred upon the one body or the other powers which were in their nature somewhat judicial, and which required the examination of witnesses, they pos- sessed no power to compel by fine or imprison- ment, or both, the attendance of such witnesses, and answers to interrogatories which did not relate to some question of which it had jurisdic- tion. This decision, which ultimately resulted in the recovery of a large judgment by Mr. Kilbourn against the sergeant-at-arms, which sum was paid by an appropriation made by the Congress of the United States out of the Treasury, was everywhere received with satisfaction. It has been followed in the States of the Union where similar questions have constantly arisen, and is undoubtedly, on account of the assertion by it of the right of the citizen to be protected against the legislative body, and to be proceeded against for any offence only in the judicial branch of the Government, one of the most important that has been made in recent years. It is also im- portant as being in some sense a direct control by the Supreme Court of the United States over the decisions and acts of one of the branches of the legislative department of the Government, made without authority of the law. 416 LECTURES ON CONSTITUTIONAL LAW. Lecture VIIL KUbourn v. Thompson. It is proper also to observe that the court decided that the members of the committee who had propounded these questions to Kil bourn, and at whose instance the House passed the resolution for his imprisonment, were not liable to his action for damages, on the ground that what they did came within the constitutional provision that " senators and representatives . . . shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance 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." Art. I, sec. 6. This court, of which we have been speaking, whether we take the character of the suitors that are brought before it, or the importance of the subjects of litigation over which it has final jurisdiction, may well be considered one of the highest that the world has ever seen. It has the power to bring States before it. States which some of our politicians have been in the habit of considering sovereign, not only when they come voluntarily, but by judicial process they are subjected, in certain classes of cases, to the iudijfment of the court. Whatever these States may have been at the time of the formation of the Constitution, they now number their inhabi- tants by millions, and in wealth and civilization are equal to many of the independent sovereign- ties of Europe. THE SUPREME COURT. 417 The subject matter of which this court has lecture vhi. iurisdiction is the construction and exposition Qf ^'" ^'^''^er to be J I apprtiheiided from the Constitution of the United States, which the exen-ise of the ,1,1 /.». r-'j -IT c ^ power to construe controls the ananas oi sixty mil hons oi people. tije(_;ousiitution. Its every-day business, almost, is to pass upon the question of conflicting rights and jurisdic- tions between the States and the United States, and between the laws framed by each of this class of political bodies. Its judges hold their offices for life, unless removed by impeachment. But one attempt has been made in the history of the Government to impeach a member of that court, and that effort failed. It has been said that these powers may be dangerous to the people, and to the other depart- ments of the Government, but the answer to this is both true and perfect. The judicial branch of the Government, of which the Supreme Court is the head, is the weakest of all the three great departments into which the power of the nation is divided. It has no arni}^, it has no navy, and it has no purse. It has no patronage, it has no officers, except its clerks and marshals, and the latter are appointed by the President and confirmed by the Senate. They are the officers to whom its processes are sent for the enforcement of its judgments, but they may be removed at any time by the Executive. The clerks, whom the judges in some form or other are permitted to appoint, have salaries or com- pensation regulated by the legislature. The clerk who may receive $20,000 or more, in fees, must pay all but $3500 of such receipts into the 418 LECTURES ON CONSTITUTIONAL LAW. Lecture viil Treasury of the United States. The judges No danger in the ^hemselves are dependent upon appropriations exercise by the ^ ^ i. x i Court of its power made by the legislature for the payment of the Constitution. ^ salaries which support them while engaged in the functions of their office. It is, then, so far as the ordinary forms of power are concerned, by far the feeblest branch or department of the Government. It must rely upon the confidence and respect of the public for its just weight and influence, and it may be confidently asserted that neither with the peojole, nor the country at large, nor the other branches of the Government, have there ever been found wanting that respect and confidence. It is one of the best tributes which can be paid to the American nation, a tribute which it deserves above all others, even of Anglo-Saxon descent, and which can be paid to no other race, that it always submits to the law as expounded by its judiciary. In all the excitements of bitter con- tests, involving great financial interests, power, position, and even political existence, in fact everything which could properly be brought within its judicial cognizance, the people have always felt that their interests were safely in- trusted to its charge. That the court may long continue to deserve this confidence, as it has for the past hundred years, must be the desire of every patriotic citizen. NOTES UPON LECTURE VIII. Mr. Justice Miller's treatment of the sub- lecture viii. ject of this lecture is so thorough, and his ref- erence to cases so recent, as to leave little to be said. The subjects will be considered in the order in which they are treated in the lecture. 1. Detail of a Justice to other duties. In addition to the cases of Chief Justice Jay Detail of a justice and Chief Justice Marshall, referred to \,y u^^ , ^o otx^ev am^,.. Justice Miller, there have been two notable instances, in more recent days, of the detail, if I may call it so for want of a better word, of justices of the Supreme Court to the performance of duties outside of the judicial power imposed upon them by the Constitution. In January, 1871, the British Cabinet made confidential approaches to the Government of the United States with a view to ascertain whether some practicable way could not be found for disposing of the pending questions between the two governments, including the Alabama Claims, the Fisheries, and the Oregon boundary. This resulted in an agreement to organize a joint commission, which should be charged with dealing with these subjects; and 419 420 LECTURES ON CONSTITUTIONAL LAW. Lecture VIII. Oil the 9th of February, just one month after to other dutief'^ the negotiations opened, President Grant nomi- nated to the Senate five commissioners on the part of the United States, of whom one was " Samuel Nelson, an associate justice of the Supreme Court of the United States." The message with the nominations was accompanied by a brief on " Plurality of Offices " for the use of the Senate. The first among several cases given was that of Mr. Jay; and it was said that he w^as nominated to the Senate " as Envoy Extraordinary of the United States on the 16th of April, 1794 ; was confirmed on the 19th of that month; went to London, and there signed the treaty known as Jay's Treaty on the 29th of November, 1794 ; arrived in New York on the 28th of May, 1795 ; and resigned the office of chief justice on the 29th of the following June." I trust it will not be thought improper for me to add a fact within my own knowledge, that Mr. Justice Nelson proved to be a most valuable member on that commission. His coun- sels were always judicious, and his views were generally adopted by his colleagues. His labors there lasted until after the end of that term of court, and with them closed the work of a long and honorable career of public service. He was retired at his own request in the following autumn, and died in December, 1873. The second instance of such detail was brought about by the Act of January 29, 1877,^ under 1 19 Stat. 227, c. 37, NOTES UPON LECTURE VIII. 421 which the Electoral Commission was established lecture vm. to decide " all questions upon or in respect of Jolther^^itils '*^* double returns" in the Presidential election of that year. This body consisted of five members of the Senate, five members of the House, and five associate justices of the Supreme Court, of whom Mr. Justice Miller was one. It is unnec- essary to make further references to so recent an historic fact. 2. Suits ag €11718 1 a State. The provision in the Constitution conferring Suits against a upon the Federal courts judicial power in " con- troversies between two or more States " was adopted from the Articles of Confederation, which provided, in Article IX, that, " The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences, now subsisting or that may here- after arise, between two or more States concern- ing, boundary, jurisdiction, or any other cause whatever." Elaborate provisions were made for regulating the exercise of this jurisdiction which need not be described. This power was invoked six times during the existence of the Confedera- tion ; but in only one case were the proceedings carried to final judgment. All were questions of territorial jurisdiction. The first in date related to the sovereignty over the territory now known as Vermont, then claimed by New York on the one hand, and New Hampshire on the other. The settlers and oc- cupiers of the soil drove out the New York 422 LECTURES ON CONSTITUTIOXAL LAW. lectuke VIII. officials by force in 1775, and refused to recog- Suits a-aiust a ^^-^.g ^^y. authority in New Hampshire. The State of New York initiated proceedings in Congress under the Articles of Confederation. The State of New Hampshire responded, but the actual settlers refused to come into court, although censured by Congress. We have the authority of Mr. Hamilton ^ for saying that their attitude caused some anxiety. Vermont had made up its mind to be independent. Massachusetts assented to the recognition of its independence in 1781 ; New Hampshire fol- lowed in the same year; New York in 1790; and the controversy was closed, without a judi- cial determination, by its admission into the Union in 1791.^ The controversy between Virginia and Penn- sylvania as to the boundary line between them was before Congress in 1779 by its own initia- tion. It does not appear that either State in- voked its interference. It was settled between the parties by mutually agreeing to and run- ning, on the face of the soil, the line now known as "Mason and Dixon's line." The controversy between Pennsylvania and Connecticut concerning the sovereignty of lands on the east branch of the Susquehanna, is the only one that was ever brought to trial and judgment under the Articles of Confederation. An account of the proceedings is given in the Appendix to volume 131 of the United States Reports, at pages liv.-lviii. 1 Federalist, No. 7. 2 1 stat. 191. NOTES UPON LECTURE VIII. 423 In the proceedings instituted by tlie State of lecture viii. New Jersey against the State of Virginia in l;';;^ ^«*'"'' ^ 1784, the apparent object was to prevent Con- gress from accepting the cession by New York, Virginia, and Connecticut of the Northwestern lands. Nothing was done beyond the presenta- tion of the petition. The dispute between Massachusetts and New York was carried to the point of selecting judges to be appointed by Congress, and was then set- tled by the parties. That between South Carolina and Georgia reached the same point, and got no farther, if the record is to be trusted. It is apparently the same controversy which was settled by an agreement between the parties, which will be found in South Carolina v. Georgia, 93 U. S. 5,6. It was found both convenient and just to have a tribunal vested with jurisdiction to deter- mine such controversies ; and so, when the Con- stitution was adopted, it contained a provision that the judicial power should extend to con- troversies between two or more States. In Hans v. Louisiana, 134 U. S. 1, which "was an action against the State of Louisiana brought by one of its citizens to recover on coupons annexed to bonds of the State, it was held that a State could not, without its consent, be sued in a Circuit Court of the United States, upon a suggestion that the case was one arising under the Constitution and laws of the United States ; and CJiisholm v. Georgia, 2 Dall. 419, com- 424 LECTURES ON CONSTITUTIOlSrAL LAW. Lecture VIII. Suits against a State. mented on by Judge Miller in this chapter, was substantially overruled, the court saying that the views of Mr. Justice Iredell, who dissented from the judgment, " were clearly right." 3. Some Recent Cases additional to those cited hy Mr. Justice Miller. Mandamua. In Dunlap V. Black ^ the question before the court was whether mandamus should issue to the Commissioner of Pensions, commanding him to increase a pension. Mr. Justice Bradley reviewed at length the cases of Marhury v. Madison,^ Ken- dall V. United States,^ Decatur v. Paulding,'^ United States V. Schurz,^ and others, and as a result of the examination laid down this rule : " The court will not interfere by mandamus with the execu- tive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that pur- pose ; but when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to per- form without further question, then, if they re- fuse, mandamus will be issued to compel them." 1 128 U. S. 40. 2 1 Cranch. 137. 8 12 Pet. 524. * 14 Pet. 497. 6 102 U. S. 378. See also Brashearv. Mason, 6 How. 92 ; Good- rich V. Guthrie, 17 How. 284 ; Commissioner of Patents v. Whiteleij, 4 Wall. 522 ; Georgia v. Stanton, 6 Wall. 50 ; Gaines v. Thompson, 7 Wall. 347 ; Butterworth v. Hoe, 112 U. S. 50. NOTES UPON LECTURE VIII. 425 The recent cases relating to interstate com- lecture viii. merce will be referred to more at leno-th in connec- ^"^'''■^***^ ^°^- ° merce. tion with Lecture IX. The latest case referred to by Mr. Justice Miller is PMladdj^hia & Southern Steamship Co. v. Pennsylvania} The leading cases since that time are recited in the note below.^ The great number of them is an evi- dence of the importance of the subject, and of the pertinacity, alluded to more than once by Mr. Justice Miller, with which the States try to get round this provision of the Constitution, and secure for themselves some advantages in viola- tion of its spirit. In Cook V. United States ^ the statutes relatino; Indians, to the organization of the Indian Territory, and more especially the courts of the United States and their criminal jurisdiction within it, are reviewed at length, both in the arguments and in the opinion. In Gon-shay-ee' s Case^ it was held that the Act of March 3, 1885,^ was enacted 1 122 U. S. 326. 2 Sands v. Manistee River Improvement Co., 123 U. S. 288 ; Smith V. Alabaina, 124 U. S. 465 ; Pembina Mining Co. v. Pennsijlvania, 125 U. S. 181 ; Bowman v. Chicago & NortMcestern liailicay Co., 125 U. S. 465 ; California v. Central Pacific Railroad Co., 127 U. S. 1 ; Ratterman v. Western Union Tel. Co., 127 U. S. 411 ; Leloup V. Port of Mobile, 127 U. S. 640 ; Kidd v. Pearson, 128 U. S. 1 ; Nashville, Cfinttonnoga &c. Railway Co. v. Alabama, 128 U. S. 96; Stoutenhuryh v. Ilennick, 129 U. S. 141 ; Pennsylvania Railroad Co. V. Miller, 132 U. S. 75 ; Western Union Telegraph Co. v. Ala- bama, 132 U. S. 472 ; Leisy v. Hardin, 135 U. S. 100 ; Lyng v. Michigan, 135 U. S. 161; McCall v. California, 136 U. S. 104; Norfolk & Western Railroad Co. v. Pennsylvania, 136 U. S. 114 ; Minnesota v. Barber, 1.36 U. S. 313 ; Brimmer \. Rebman, 138 U. S. 78 ; PuUman'^s Palace Car Co. v. Pennsylvania, 141 U. S. 18 ; " Crutcher v. Kentucky, 141 U. S. 47. 3 138 U. S. 157. « 130 U. S. 343. 5 23 Stat. 385, c. 341, § 9. 426 LECTURES ON CONSTITUTIONAL LAW. Lecture VIII. Indians. Slavery. Diplomatic privi- lege. to transfer to Territorial courts established by the United States the jurisdiction to try the crimes described in it^ when sitting as and exer- cising the functions of a Territorial court, and not of a Circuit or District Court of the United States; and in MayfielcCs Case"^ it is held that a member of the Cherokee nation, committing the crime of adultery in territory assigned to that tribe, is not subject to trial for that crime by the courts of the United States. In Clay v. Field ^ it appeared that two persons were partners in working a plantation in Ten- nessee. One of them died before the civil war, and the other retained possession of it in good faith, and also of all the slaves upon it, and continued to operate it for what he thought was for the interest of the deceased as well as him- self. The war broke out, the plantation was in the theatre of the conflict, and at its close the slaves were free. In view of all the circum- stances, the court decided that the surviving partner was not accountable for the value of the slaves, but that he was accountable for the fair rental value of the property, including the slaves while they were slaves. In Baiz Case, 135 U. S. 403, the petitioner Baiz, being sued in the Circuit Court of the United States for the Southern District of New York, set up a constitutional privilege, as a dip- lomatic representative, to be exempt from the 1 Murder, manslaughter, rape, assault with intent to kill, and larceny. 2 141 U. S. 107. 8 138 u. S. 464. NOTES UrON LECTURE YIII. 427 jurisdiction of that court. Evidence was offered lecture viii. on both sides in the Supreme Court. This chiini J^ii'i^™^''*^ p"^>- being overruled, he applied to the Supreme Court for a writ of prohibition or mandamus to restrain the Circuit Court from exercising fur- ther jurisdiction in the case. It was held that, in the absence of a certificate from the Secretary of State that he was such a representative, he was not entitled to the immunity from suit except in the Supreme Court which is granted to such persons by the Constitution. It was also held that, on such an application, the respon- dent was called upon to produce any evidence within his knowledge to overcome the peti- tioner's proof of his privilege ; and that the court could accept the certificate of the Depart- ment of State upon the question at issue, and was not required to proceed upon argumenta- tive or collateral proof. In Cooper s Case, 138 U. S. 404, on an appli- The Behmg Sea cation for a writ of prohibition to restrain the ^*^^' District Court of the United States for the Dis- trict of Alaska from issuing process upon a decree condemning a vessel for illegally captur- ing seals, the court held that it had jurisdiction, and granted leave to file the petition for the writ. In Neagles Case, 135 U. S. 1, argued and The Neagu Case. decided after this lecture was delivered, the sub- ject of the protection which the Constitution affords to the court when exercising the judicial power conferred upon it was elaborately con- sidered, the opinion of the court being written by 428 LECTUliES ON CONSTITUTIONAL LAW. Lecture viil Mr. Justico Miller. The lieadnotes of the case, The Ncacjie Case. ^^ reported, which were also written by him, embody all the propositions of law bearing upon the subject, which were discussed and decided by the court, and also make a suffi- ciently full statement of the facts to enable the student to understand exactly what was before the court and decided by it. The material prop- ositions in those headnotes are the follow- ing:— "By virtue of Rev. Stat. §§ 606, 610, the jus- tices of the Supreme Court of the United States are allotted among the nine circuits, to each one of which a judge is assigned ; and the lat- ter section makes it the duty of each judge to attend the Circuit Court in each district of the circuit to which he is allotted, and thereby im- poses upon him the necessity of travelling from his residence to the Circuit Court which he is to attend, and from each place in that circuit where the court is held to the other places where it is held. Held, that, while a judge is thus travel- ling to or from those places, he is as much in discharge of his duty as when listening to and deciding cases in open court, and is as much entitled to protection in the one case as in the other. " While there is no express statute authorizing the appointment of a deputy marshal, or any other officer, to attend a judge of the Supreme Court when travelling in his circuit, and to protect him against assaults or other injury, the general obligation imposed upon the President ■ NOTES UPON LECTURE VIII. 429 of the United States by the Constitution to see lecture viii. that the kws be faithfully executed, and the '^^^ ^*''''^'' ^"*^- means placed in his hands, both by the Constitu- tion and the laws of the United States, to enable him to do this, impose upon the executive de- partment the duty of protecting a justice or judge of any of the courts of the United States, when there is just reason to believe that he will be in personal danger while executing the duties of his office. "An assault upon a judge of a court of the United States, while in discharge of his official duties, is a breach of the peace of the United States, as distinguished from the peace of the State in which the assault takes place. "Under the provisions of Rev. Stat. § 788, it is the duty of marshals and their deputies in each State to exercise, in keeping the peace of the United States, the powers given to the sheriffs of the State for keeping the peace of the State ; and a Deputy Marshal of the United States, specially charged with the duty of protecting and guarding a judge of a court of the United States, has imposed upon him the duty of doing whatever may be necessary for that purpose, even to the taking of human life, "United States officers and other persons, held in custody by State authorities for doing acts which they were authorized or required to do by the Constitution and laws of the United States, are entitled to be released from such imprison- ment ; and the writ of habeas corpus is the ap- propriate remedy for that purpose. 430 LECTURES ON CONSTITUTIONAL LAW. Lecture VIII. " David Neagle, a Deputy Marshal of the The Neayie Case. United States for the District of California, was brought by writ of habeas corpus before«the Cir- cuit Court of that district, upon the allegation that he was held in imprisonment by the sheriff of San Joaquin County, California, on a charge of the murder of David S. Terry. He alleged that the killing of Terry by him was done in pursuance of his duty as such deputy marshal in defending the life of Mr. Justice Field, while in discharge of his duties as Circuit Judge of the ninth circuit. On the trial of this writ in the Circuit Court it entered an order discharg- ing the prisoner, finding that he was in custody for an act done in pursuance of a law of the United States, and was imprisoned in violation of the Constitution and laws of the United States. The case being brought up to the Supreme Court by appeal, this court, on ex- amining the voluminous testimony, arrived at the conviction that there was a settled purpose on the part of Terry and his wife, amounting to a conspiracy, to murder Mr. Justice Field, on his official visit to California in the summer of 1889 ; that this arose from animosity against him on account of judicial decisions made in the Circuit Court of the United States for the Northern District of California in a suit or suits to which they were parties ; that the purpose which they had of doing Mr. Justice Field an injury became so well and so publicly known, that a correspon- dence ensued between the marshal and the district attorney of that district and the Attor- NOTES UPON LECTURE VIII. 431 ne}^ General of the United States, the result of lecture viii. which was that Neagle was appointed a deputy ^^^ ^^"^'*^ ^''''^ marshal for the express purpose of guarding Mr. Justice Field against an attack by Terry and his wife which might result in his death ; that such an attack did take place ; that Neagle, being there for the said purpose of affording protection, had just reason to believe that the attack would result in the death of ]\lr. Justice Field unless he interfered ; and that he did jus- tifiably interfere by shooting Terry while in the act of assaulting Mr. Justice Field, whom he had already struck two or three times. Held, "(1) That Neagle was justified in defending Mr. Justice Field in this manner; " (2) That in so doing he acted in discharge of his duty as an officer of the United States ; "(3) That having so acted, in that capacity, he could not be guilty of murder under the laws of California, nor held to answer to its courts for an act for which he had the authority of the laws of the United States ; " (4) That the judgment of the Circuit Court, discharo-ingi: him from the custodv of the sheriff of San Joaquin County, must therefore be af- firmed." This case, from the novelty of the questions involved, and from the character and eminence of the distinguished jurist assaulted by Terry, naturally excited the greatest attention through- out the country. There was some difference of opinion between members of the bar before the argument. The elaborate opinion of the court, 432 LECTURES ON CONSTITUTIONAL LAW. Lecture VIII. howGver, closed the doors against further dis- The Ncarjie Case, ^ussioii ; and it has been accepted as affording to the court only the measure of protection to which it is justly entitled. Mr. Justice Miller brings his treatment of the Thirteenth, Fourteenth, and Fifteenth Amend- ments only to The Slaughter House Case. There have been many decisions upon these amend- ments, made since that case, in which some one of them has been the suljject of controversy and of construction. These cases are grouped together in the supplementary paper, No. XIII, in which the subjects not discussed elsewhere are treated. IX. REGULATION OF COMMERCE AMONG THE STATES.! Article I, Section 8, Paragraph 3. The Con- Lecture IX. gress shall have Power ... To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes. The text of this discourse is one of the most Regulation of commei States. important of the powers delegated to Congress '""^"^'^'^^ ^"^"°^ by the Constitution of the United States. It is provided in Article I, section 8, paragraph 3, of that instrument, as follows : — " The Congress shall have power, ... to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." You would scarcely imagine, and I am sure The importance you do not know, unless you have given some ^^ *^^^ power, consideration to the subject, how very important is that little sentence in the Constitution. It was the want of any power to regulate commerce, as between the States themselves, and with foreign nations, which as much, and I am not sure but I am justified in saying more, than any 1 This lecture is Lecture VII of the Lectures delivered before the classes at the University Law School. 433 434 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. The importance of this power. Its history. Action of Virginia in 178G. one thing, forced the States to form the present Constitution in lieu of the Articles of Confedera- tion under which they had won their freedom and established their independence. It is diffi- cult now for us to fully appreciate how strong was the tendency to separate, to quarrel, and to bring their adverse interests into collision, which grew out of the want of any general power in the Federal Government, as it then existed, to control the commercial relations of the States with each other. A slight examination in the records which remain to us of the conditions, circumstances, and the discussions which pre- ceded the formation of the Constitution, will be of service in enabling us to better understand this subject. One of the earliest and most significant was a resolution of the Virginia legislature of January 21, 1786. The Convention that framed the present Constitution assembled in the year 1787, so that this resolution was passed but a little over a year before its meeting. It was proposed to confer, by the action of the separate States composing the Confederation, additional power on the then Congress of the United States. This was a most pressing question, the necessity was urgent, and the legislature of Virginia thus expressed its desire that there should be greater power placed in the hands of the National Gov- ernment. The resolution reads as follows : — "Resolved, that Edmund Randolph, James Madison Jr., Walter Jones, St. George Tucker, and Merriweather Smith, Esquires, be appointed KEGULATION OF COMMERCE. 435 commissioners, who or any three of whom shall lecture ix. meet such commissioners, as maybe appointed ^'^j!J'yg"^^""*'''°'* in the other States of the Union at a time and place to be agreed on, to take into consideration the trade of the United States ; to examine the relative situations and trade of said States ; to consider how far a uniform system in their com- mercial regulations may be necessary to their common interest and their permanent harmony ; and to report to the several States such an act relative to this great object as, when unani- mously ratified by them, will enable the United States, in Congress, effectually to provide for the same." ^ Mr. Madison was undoubtedly the author of Mr. Madison, that resolution, and he was afterwards a mem- ber of the Convention which framed the Consti- tution. That was the only resolution passed at that time, so that it is evident that more tlian a year before that Convention was finally called, the trade and commerce of the country occupied a prominent place in the minds of the Virginia legislature, as well as in the thought of this dis- tinguished statesman, together with the promi- nent idea that there should be such regulation of that commerce as might be beneficial to all the States, with a power to control it placed in the central authority, weak though it then was. With the same end in view Oliver Ellsworth Mr. Ellsworth, of Connecticut, a distinguished man of that day, a member of the Constitutional Convention, and 1 6 Elliot's Debates, 113 (Madison Papers). 436 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Mr. Ellsworth. The Federalist. one of the early Chief Justices of the Supreme Court of the United States, had urged upon the people of his State to send delegates to the Con- vention which was to consider the subject of a Federal Constitution. His main argument was that the people of his State were suffering from the imposts laid upon their commerce by the States of New York and Rhode Island, each of which had fine harbors and ports of entry. Hav- ing succeeded in getting a Constitution adopted with this provision in it, he was then elected to the State convention which should approve or reject it. In the opening of the discussion in that body, in the first speech that was made, he made use of this remarkable language : — "Our being tributaries to our sister States is in consequence of the want of a Federal sys- tem. The State of New York raises £60,000 or £80,000 a year by impost. Connecticut con- sumes about one-third of the goods upon which this impost is laid, and consequently pays one third of this sum to New York. If we import by the medium of Massachusetts she has an impost, and to her we pay a tribute." ^ The Federalist, that remarkable series of papers published by Hamilton, Madison, and Jay, while the ratification of the Constitution was pending before the people in their State conventions, contains, of course, the principal arguments in favor of the adoption of that instrument. To that, therefore, all persons 1 2 Elliot's Debates, 189. REGULATION OF COMMERCE. 437 engaged in construing the Constitution of the lecture ix. United States naturally look for a con tern po- '^^' ^'^"'^^''*- raneous exposition of it by the distinguished statesmen of that period, two of whom were engaged in its formation, and who had no supe- riors at that time in the public service. In the seventh number of that series of articles the author, in speaking of the evils of a divided condition of the States, says : — " The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial polity peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal priv- ileges, to which we have been accustomed from the earliest settlement of the country, would give a keener edge to those causes of discontent, than they would naturally have, independent of this circumstance. We should he ready to denominate injuries those things which ^fere in reality the justifiable acts of independent sover- eignties consulting a distinct interest.''^ Again the following language is used : — " The opportunities which some States would have of rendering others tributary to them, by 1 The Federalist, No. 7 (Hamilton). 438 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Commercial regulations, would be impatiently The Federalist, gubj^.i^tecl to by the tributary States. The relative situation of New York, Connecticut, and New Jersey, would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New, York would neither be willing, nor able, to fore- go this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neigh- bors." ^ The subject is recurred to again in the twenty- second letter : — " The interfering and unneighborly regula- tions of some States, contrary to the true spirit of the union, have, in different instances, given just cause of umbrage and complaint to others ; and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord, than injurious impediments to the intercourse between the different parts of the confederacy." ^ Here follows a sentence remarkable as almost a prophecy of what we have seen and known in our day : — " The commerce of the German Empire is in 1 The Federalist, No. 7. 2 jb. No. 22. REGULATION OF COMMERCE. 439 continual trammels, from the miilti[)licity of the lkcture ix duties Avhich the several princes and States exact ^^^ Federalist, upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless." ^ Now we know that Germany submitted to German zou- that condition of affairs until some fifty or sixty ^^ years ago, when that portion since called North Germany, with Prussia as the. dominant power, formed what they called the ZoUverein." This was a commercial union between about a dozen of those States, Dukedoms, and Principalities, by which it was arranged that travellers and goods of all kinds might pass entirely through their 1 The Federalist, No. 22, quoting from the Encyclopsedia, art. Empire. 2 The ZoUverein had its origin in a customs convention between Prussia and the Grand Duchy of Hesse in 1828 ; and other states, as they gradually became convinced of the advantages afforded by a general customs frontier, joined ft from time to time during the succeeding forty years. The following table shows the progressive territorial limits of the ZoUverein, which may be regarded as the precursor of the present German Empire : — Years. States enterinsr During the Various Periods. Area Square Miles. Population of tile I'nion Slates. 1828 1831 1834 1844 1851 1868 1871 Prussia, Hesse (Grand Duchy) . Hesse-Cassel Bavaria, Wiirteniberg, Saxony, Tburingia, etc Brunswick, Luxembourg, etc. Hannover, Oldenburg .... Schleswig-Holstein, Lauenburg, Mechlenburg Alsace-Lorraine 112,000 115,300 163,900 171. iXX) 191,800 205,500 209,251 13,295,254 15,090,075 23,478,120 28,498,136 32,559,055 38,277.939 40,677,950 Encyclopfedia Britaunica, vol. 10, 455 (9th ed.). 440 LECTUKES ON CONSTITUTIOI^AL LAW. Lecture IX. Germau Zoll- verein. Importance of this clause in the Constitution. territories with but one inspection and one set of duties. I am not familiar with the details of the treaty, but, as we all know, its practical result was to bring together all the North Ger- man States in a union for all commercial trans- actions. That condition of affairs had existed but a few years when war broke out between Prussia and Austria. The entire North German Confederacy, if it could be so called, joined Prussia in this war, in which that country was successful, and they then established a still more intimate relation, forming themselves into one kingdom or government. They then extended their Zollverein, but not their unity of govern- ment, to South Germany, which included Bavaria and Wiirtemberg, each of which was a rather large kingdom in its territorial extent among those small prmcipalities. So intimate, how- ever, was this commercial relation that those two governments followed Prussia in the sub- sequent war with France, and at the end of that war the present German Empire was organized. All this grew out of the original commercial union, called the Zollverein, adopted to prevent discriminating duties and other troubles which arise when the business relations of neighboring territories are interrupted by independent laws and regulations. In the paper No. 41 of the Federalist there is another reference to this subject, written before the adoption of the Constitution, in which the same idea is expressed. " The defect of power in the existing con- KEGULATION OF COMMERCE. 441 federacy to regulate the commerce between its lecture ix. several members, is in the number of those which ^^po^^!^"^"** "^ ^ _ this clause in the have been clearly pointed out by experience, constitution. To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental pro- vision, the great and essential power of regu- lating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances ; and both by that and a common knowledge of human affairs, that it would nourish increasing animosities, and not improbably terminate in serious interruptions of the public tranquillity." ^ A further indication of the importance which Legislation of the States attached to this matter is to be found ^^""^^ ^'^*"'*- in the fact that Rhode Island was between two and three years in ratifying the Constitution, after all the other States except North Carolina had acted upon the subject. Your attention 1 The Federalist, No. 41 (Dawson's ed.) ; No. 42 all other editions. 442 LECTUKES ON CONSTITUTIONAL LAW. Lecture IX. Legislation of Rhode Islaud. Legislation of New York. may not have been called to the reason which governed Rhode Island in that matter, but his- tory shows that it was on account of the import- ance which that State attached to this power to regulate the commerce that would naturally seek its ports. It possessed in Newport one of the finest harbors on the whole Atlantic coast, and a very large part of the imports into the northern States of the Union from abroad went through that town. There was, of course, a heavy tax laid upon such importations, so that this little State and its principal city were pay- ing their expenses and living a jolly life off of the imposts collected on goods that went through its ports to Connecticut, Massachusetts, New Hampshire, and the adjoining States, for consumption. The experience of the country since the adop- tion of the Constitution lias shown how wise were its framers in including this particular clause which we are now considering within its provisions. From the case of Gibbons v. Ogden, 9 Wheat. 1, 189, argued in the Supreme Court of the United States in 1824, down to the pres- ent time, there have been many judicial decis- ions upon this subject, in which acts of the States Avere held void which were intended to infringe that provision of the Constitution, and which attempted to impose upon the property and goods of citizens of other States the burdens which the citizens of the States making the enactments ought themselves to bear. The case of Gibbons v. Ogden, in which the opinion was REGULATION OF COMMERCE. 443 delivered by Chief Justice Marshall, arose under lecture ix. a statute of the State of New York which !:^«''l?''"" '^^ New York. seemed to be intended as a liberal concession on account of an invention of great public value. That State granted to Robert R. Livingston and Robert Fulton, the inventor of the steamboat, the exclusive right of navigating all the waters within its jurisdiction with boats moved by fire or steam for a term of years. This included the waters of the Hudson River, which Avere then relatively more important than they now are, because there were no railroads or canals. The defendant Gibbons employed two steam- boats, running between New York and Eliza- bethtown in the State of New Jersey, in violation, as it was claimed, of this exclusive privilege. An injunction was therefore sought to restrain him from using those boats, although they had been duly enrolled and licensed under acts of Congress. The case came by due process into the Supreme Court of the United States, where it was held that the statute of the State of New York was a regulation of commerce be- tween the States, and therefore repugnant to the clause of the Constitution which we are now considering, authorizing Congress to regulate commerce among the several States. From that time until the present the efforts of Legislation of the individual States to take advantage of their ^^^'^y^'^^'*- opportunities to impose duties, taxes, restraints, and burdens upon the property of citizens of other States passing through or brought into them have been the source of the continued exercise 444 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Legislation of Marylaud. of the jurisdiction of the Supreme Court of the United States, where such laws have in ahnost every instance been declared void. For exam- ple, the statute in the case of Guy v. Baltimore, 100 U. S. 434, was an old sinner, and made a very clever attempt to conceal the evil. It ap- peared that the city of Baltimore owned some of the wharves in that city at which vessels coming to that port landed : probably not all, but some of them, and imposed a certain tax for the use of those wharves. This was begun a great many years ago, and was done by an act of the General Assembly of Maryland, passed in 1827, and regulations made thereunder by the city authorities, which provided in effect that all articles of merchandise brought into that city and landed at its wharves, which were the prod- uce of the State of Maryland, should pay no fees on account of their use, but that all similar articles brought into that port from any other State should pay a tax for the use of the wharf upon which it was landed. Of course it was a small affair, the main business at these wharves being the landing of chickens, eggs, potatoes, cabbages, oysters, and other articles of food and things of that kind, so that the sum that any one little sailing vessel had to pay did not amount to much. Nobody, therefore, resisted its payment until a few years ago, when a man was at last found who would stand it no longer. In 1876 Guy, a resident citizen of Accomac County in the State of Virginia, landed his ves- sel at one of the public wharves, and when this REGULATION OF COMMERCE. 445 tax was demanded of him refused to pay it. lecture ix. Legislatioi Maryland. So they sued him, and by regular process ^•'"'■'*'''^^"'° °^ through their courts the case came at last into the Supreme Court of the United States. That court said that it did not matter if this tax had been collected for so many years, it was never- theless a regulation of commerce which the State could not make or authorize, because this tax was not a compensation for the use of the city's property, but was a mere expedient or device to foster the domestic commerce of Mary- land by means of unequal and oppressive bur- dens upon the industry and business of other States. It was invalid as a regulation of com- merce. It was not merely intended to raise money for the use of a wharf, — that they had a right to do, and if they had laid a reasonable tax for its use and laid it alike upon the prod- uce which came from every State in the Union, it would have been a valid tax ; but it was evident that it was intended by this statute to make the produce and goods of Virginia, which lies right alongside, as well as that of the adja- cent States of New Jersey and Delaware, which came into this port for a market, pay a tax to keep up the wharves and wharfage system of that port, while permitting the entry of goods and produce from the State of Maryland free of any such imposition. This was held to be a regulation of commerce, and though of nearly sixty years' standing, to be void. If you will* take the Constitution of the United States and read it, or that part of it in 446 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Legislation of Maryland. What is com- merce ? immediate connection with this paragraph, you will see that the position which it occupies in that instrument* indicates the place it occupied in the thouarht of the Convention which framed o it. Article I is devoted to the organization and powers of the legislative branch of the Govern- ment, consisting of the Senate and House of Representatives. Section eight of the Article contains the specific grants of power made to the Congress. The first one of these is a grant to raise money by taxation for the support of the Government ; the second is an authority to borrow money for the same purpose, and the third, out of about fifteen in number, is this clause concernino- the reg;ulation of commerce. We must next, in order to ascertain with any philosophical nicety what is meant by this clause, take some of its parts into the field of definition. And first let us consider, what is commerce ? You remember that the commerce to be regulated by Congress is that " with foreign nations, and among the several States, and with the Indian tribes ; " but the word ^' commerce " is applicable to all these, and it is essential to have some idea as to what is meant by the word. It is defined in Gibbons v. Ogden, as well as in some later cases, but it is difficult to give in any one sentence its entire meaning as employed in the Constitution. The ordinary meaning is trade and traffic — intercourse be- tween different peoples ; and that will perhaps answer for our purpose as a general definition of the word as used in this clause. But traffic and REGULATION OF COMMERCE. 447 trade are composed of a great many elements lf.ctuke'ix. What is merce ? SO far as the means are concerned by which and ^^ ''^'^ '^ '^'^^ the persons by and between whom they are carried on. That element of commerce which has been the most frequent subject of legislation by the Congress of the United States, and which has perhaps received more frequent consideration in the courts than any other, is what may be called "transportation." In Gihhons y. Ogden the eminent Chief Justice made a very elaborate argument to prove that navigation was one of the principal elements of commerce, which Avas perhaps necessary for him to do in that day although it is a proposition which it would cer- tainly not be thought necessary now to estab- lish by precedents or authorities. In fact we have gone further than that, and we have said that the transportation of goods and passengers is commerce. And in that view, in the case of the Clinton Bridge, reported in 1 Woolworth, 150, in 1867, in which I had the honor of deliv- ering the opinion of the court, it was held, thousrh I believe it has sometimes been doubted since, that since the railroads of the country had almost superseded the use of vessels and water carriage, they, as a means of transporta- tion, constituted an element of commerce, and that it was within the power of Congress to regulate that element. There is this limitation to that, however, that since these railroads are generally chartered by States, and many of them run only within the borders of a single State, 448 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. tliG transportation or commerce over them is mercc? '^°™' ^^^^ ^^ ^® ^^^ Commerce with foreign nations, not commerce among the several States, and not commerce with the Indian tribes, and, there- fore, not subject to regulation by Congress. But many of these roads run through several States, and most of them make arrangements to continue the transportation of their freight over other lines. A large part of the transpor- tation of freight and passengers in this country from the Pacific to the Atlantic coast, and vice versa, is done in one vehicle and by one con- tinuous passage. It is my opinion that such traffic is subject to regulation by Congress. The judgment rendered in that case was affirmed by the Supreme Court of the United States, but the argument which I have presented here, and which I used in the case below as a part of my opinion, was not fully adopted. The question was whether the Congress of the United States had power to authorize one of these railroads to build a bridge across the Mississippi River at the town of Clinton, where two roads, one on each side, met, and where it was necessary to have a bridge. I held that Congress having passed a statute authorizing it to be built, and declaring what the size and height of the bridge and the width between its piers should be, the act was within the power of Congress because it was a regulation of commerce. The Supreme Court sustained me in that, although some of the judges may have based their decision upon the fact that it was a bridge across a naviga- REGULATION OF COMMERCE. 449 ble stream, and therefore within the control of lecture ix. Cono;ress. My decision in that case has of ten ^^ '"*^ If ^°™' c5 «/ merce? been quoted in Congress ; various committees having charge of the question of the regulation of railroad traffic have considered the subject, and although no bill has passed both Houses, yet bills substantially based upon that idea have at different times passed each House, and generally the reports of the committees hav- ing them in charge have made reference to that opinion. Having ascertained, then, what commerce is, what it is to and what are some of its elements, which may " '"''^"^^^^ ' '^^^' ' «^ merce. be the subject of the action of Congress, or of the attempted action of the States, we next come to consider what it is to "regulate" commerce. You will observe from the extracts quoted from the Federalist, and still more if you study the history of the formation of the Constitution, that the word " regulate " was one much more fre- quently used in those days than it is now ; un- doubtedly our forefathers used it in a larger and wider sense than it would be generally used at this time. But we have in Gibbons v. Ogden, that magazine of constitutional law upon this subject, a definition by Chief Justice Marshall of what it is to regulate commerce, which perhaps can never be excelled in its brevity, accuracy, and compre- hensiveness. He says that " to regulate com- merce is to prescribe the rule by which commerce is to be governed." Commerce being intercourse and traffic between people, to regulate it is to prescribe rules by which it shall be conducted. 450 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. What it is to " regulate " com- merce. It is said in Cooley v. Port Wardens of Phila- delphia, 12 How. 299, that it is the power to regulate the instruments of commerce ; that " it extends to the persons who conduct navigation as well as to the instruments used." In pur- suance of that view the Congress of the United States has applied the power which it has under that clause to regulate commerce to a method of intercourse which had no existence when the Constitution was framed. By this I mean the internal commerce of the country, among the States and on its great rivers, by means of steamboats, for it was nearly forty years after tl^e Constitution was adopted before a steamboat was successfully used to take part in the actual transportation of goods and the navigation of the waters of the country. Before that time, how- ever, Congress had applied its powers to the regulation of sailing vessels, both foreign and domestic. The next year after the adoption of the Constitution it passed two statutes, one called the " registry law," which applied exclusively to vessels engaged in foreign trade, and the other called the " enrolment law," which had applica- tion alone to coasting and other vessels engaged in the domestic trade. Congress also passed statutes : indeed, it was a part of those statutes, that all those vessels should be licensed, and that they should take out their licenses from the officers of the custom houses where they were built, or where their owners resided. In fact, it may be briefly stated that the whole system of the navigation laws of the United States is REGULATION OF COMMERCE. 451 founded on that simple clause giving Congress lecture ix. the power to reo-ulate commerce. ^!^*^'^* !^'^V' 1 O " regulate coin- Since steamboats came into successful opera- mcrce. . . /-^ 11 1 1 r-i 1 1 Steam navij'ation tion Congress has been busy, and profitably so, ^j t,,g ^^^^^ ^nd in passing laws concerning and regulating their interior rivers. use on the interior waters of the country. It has passed laws prescribing the number of passen gers that each one of these boats may carry ir proportion to the space which they have for their accommodation, and providing heavy penalties for any excess in the number of passengers car- ried beyond the limit permitted by law. It has also enacted statutes requiring them to keep on board certain life-preserving and life-saving im- plements, of which there is a great variet}", some circular, some square, some of cork, and some filled with air. These are all arrangements pre- scribed by Congress under this same clause of the Constitution. These statutes also require that these vessels shall be inspected. The smallest vessel that navigates a river by steam as well as the largest that navigates the ocean is required, whether belonging to the United States service or to an individual, to be inspected and to have put up and exhibited in their cabins a certificate of that inspection, which must be renewed at appro- priate intervals. These provisions are all in- tended for the safety of the passengers and crews, and to provide against danger to human life. It is also provided that on the inland waters of the country the pilot and engineer must be examined by suitable commissioners 452 LECTUIIES ON CONSTITUTIONAL LAW. Lecture IX. located in the principal cities of the Union. Any ortlTiakeTauIT" stcamboat owner who employs a pilot or engineer interior rivers, who has no Hceiise is liable to a penalty, and any man who undertakes to serve as a pilot or engineer without such license is liable to a similar penalty. So that you will see that there has been a great deal of use made of this power which is conferred by this clause of the Constitution. Immigrants. Another matter having reference mainly to the foreign commerce of the United States has been the subject of consideration in our courts. I allude to laws concerning the landing of pas- sengers who are foreigners in our ports. For more than fifty years the States within which the principal ports of entry are situated have struggled to in some way levy a tax upon every human being not a citizen of the United States who landed in one of those ports. This tax they endeavored to collect from the officers of the vessels bringing such passengers, under the pressure of heavy penalties for failure to pay such impositions. Such laws have over and over again been declared by the Supreme Court to be unconstitutional and void, because they are an attempt at a regulation of foreign com- merce ; because the terms upon which subjects and citizens of foreign nations shall land in the United States are not fit matters for State legis- lation ; because, under the theory upon which our Government is based, the central authority must deal with the sovereigns of those subjects, as well as answer to them for any wrong done to them under the laws of nations ; and because REGULATION OF COMMERCE. 453 such laws are essentially and from their very na- lecturp: ix. ture, of that class of legislation or action which ^'"""«'""'**- is international in its character and which must, therefore, be regulated and acted upon by the Federal Government alone so far as foreign powers are concerned, and caimot be intrusted to any one or more of the individual States of the Union. But often as that doctrine has been declared by the Supreme Court of the United States, beginning with the Passenger Cases, 7 How. 283, in 1849, down to those which have been recently delivered, still the States continue this effort to tax passengers and freight and seek to avoid in some way or another the force and effect of the constitutional provision con- cerning commerce and its regulation. There is one other question connected with Co-ordinate this topic which has been much mooted in the gt^gg^ ^ Supreme Court, and that is, whether there may not exist in the States a co-ordinate power to regulate commerce of certain kinds in the ab- sence of any action by Congress on the subject. It has been a vexed question in the court whether there is any such limited field of State legislation, or for State legislative power, in regard to any subject which can be fairly called a regulation of commerce. But I think that it is now the established doctrine that there is a class of subjects having the elements of com- merce, both foreign and domestic and interstate, which may be acted on and in regard to which rules may be prescribed by the States so long as Congress does not choose to occupy the field and 454 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Co-ordinate powers ot iLe States. pass laws upon the same subject. The principal cases upon that subject are rather numerous, but I will give you some of them. Gibbons v. Ogden, 9 Wheat. 1, 189; WiUson v. Blackbird Creek Co., 2 Pet. 245 ; Coolejj v. The Board of Wardens of the Port of Phdadelphia, 12 How. 299 ; Gihyian v. The City of Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 Wall. 35; Pound V. Turck, 95 U. S. 459, 462; Packet Co. v. Catlettsburg, 105 U. S. 559. These are cases involving some local matter, yet in its nature a regulation of commerce, in regard to which the States concerned have at- tempted to pass, and have passed laws whose validity was disputed under this clause of the Constitution. They have come in this way before the Supreme Court of the United States, where they have been held to be valid. I can do no more now than to state what I have deduced as the result of these cases. The doctrine was for the first time clearly stated in Cooley v. Tlie Board of Wardens, and it has been repeatedly affirmed since in the same court. It may l)e thus stated : That the power to regulate commerce is one which includes many subjects various and quite unlike in their nature ; that whenever sub- jects of this power are in their nature national, or require one uniform system or plan of regula- tion, they may be justly held to belong to that class over which Congress has the exclusive power of legislation ; but that local and limited matters, not national in their character, which are most likely to be wisely provided for by such REGULATION OF COMMERCE. 455 diverse rules as the localities and the authorities lecture ix. of the different States may deem applicable /'"'""'"'^'"ff, •^ •!■ i powers of the may be regulated by the legislatures of those states. States in the absence of any act of Congress upon the same subject. Of course when Con- gress does legislate, as it has a right to do, that excludes the legislation of the States and ren- ders it void so far as it may interfere or conflict with the statutes of the United States, It may be useful to suggest here one or two of the classes into which this subject may be divided. One is pilotage, which was under con- sideration in Cooley v. The Boaixl of Wardens. Almost all the seaports of the United States have found it necessary to make rules and laws constituting and regulating a system of pilotage, pilotage. By these provision has been made for putting upon the great ocean steamships and other ves- sels before they reach the bar, which exists in most of our harbors, a pilot who is familiar wdth the coast and the channel, so that they may be brought safely into port. This dispenses, of course, with any pilot the vessel may have on board, whether competent or not. The reason for this is that it has been found necessary, in order to make proper compensation to these pilots and support a sufficient number of them to do the business, to require by law that every vessel shall take a pilot ; and they have gone further, no doubt under a necessity inherent in the system, and have required that the vessel entering a port shall take the first pilot who offers himself when it comes within the limits 456 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Pilotage. Wharfage. where the pilot-laws operate. This is because these pilots must go out and cruise about before the harbor, and stay there regardless of the weather, so that all vessels may avail themselves of their services, and it is therefore provided that they must be taken in the order in which they present themselves. Most of the States, however, have a provision in their laws that if a vessel has a pilot of her own, or for any other reason chooses to dispense with the services of the first pilot who offers himself, such vessel shall pay to that pilot one-half of the usual fees, which are established by the local regulations of the different States, or by their legislative bodies. This is a system that requires different rules and provisions in New York from what has been found necessary in New Orleans, and it has therefore been held that the laws of the States upon that subject are valid. It has been contended that all compul- sory pilotage should be abolished, and a bill to accomplish that object has been reported from the Committee on Commerce of the Senate of the United States. If such a bill should pass it would not be necessary for a vessel to take a pilot whether she wanted him or not. This is an apt illustration of the power of Congress to act upon a subject which, if left untouched by it, would fall within the power of the State legislatures. Another is wharfage rules and rates. So dif- ferent are the localities where vessels land, the nature of the ground, and the condition of the REGULATION OF COMMERCE. 457 wharves, that it generally has been conceded lfxture ix. that the places and times at which such landings ^"^^^^^^s^- may be made and the rates of wharfage shall be left to local regulation. Yet, undoubtedly, they are so far regulations of commerce, that if Congress should at any time interfere and pass a law upon the subject it would be controlling. Another class, which has been frequently be- Bridges over navi- fore the Supreme Court, involves matters Hke s^^'^^^"-^^"^^- that discussed in the case of the Clinton Bridge, that is, of bridges over navigable streams. Such streams are within the control of Congress, abso- lutely. We may say in regard to every stream in the United States capable of being used as an aid to commerce for the navigation of any craft whatever, that Congress has a right to regulate its use. But, in the building of railroads across the country it was necessary that they should cross many streams, some of them navigable, and it was found to be to the interest of com- merce that they should be bridged. This was sometimes done with drawbridges, but their piers were somewhat in the way, and rafts and steamboats often struck against them. So, some of the States authorized the building of bridges, and the courts of the United States have held that if there be no unreasonable use of the power of crossing the stream, the States may authorize the building of bridges in the absence of any action by Congress. There are now bridges over the Ohio, the Mississippi, in- deed over all the streams crossed by railroads in this country, of which perhaps one-half are 458 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. authorized by some act of Congress, most of the Bridges over navi-^^^j^g^g bv the States, and some by both. In gable streams. "^ ' ^ ^ some cases there was a State law allowing the bridge to be built which Congress ratified. It has been sometimes said in regard to this sub- ject that the power of Congress is in abeyance and can be exercised by the States in the absence of Congressional action. The language of the clause of the Constitution which we are considering, declaring that Con- gress shall have power " to regulate commerce with foreign nations, among the several States, and with the Indian tribes," thus points out three different classes of commerce placed within the control of that body. It hag pretty fairly performed its duty so far as passing laws regu- lating commerce with foreign nations and the Indian tribes is concerned ; but until recently almost entirely ignored its duty in regard to its reo-ulation amono- the several States of the Union. The result of this failure of Congress to prescribe rules for the government of com- state laws in con- merce, whicli is the power of regulation, has flict with this pro- i^gg^ that the States, under pretence of exercis- Yision. ^ ^ ^ ing the power to pass laws concerning this sub- ject, where Congress had not acted upon it, have been themselves making perpetual efforts to exercise forbidden powers at the expense of other States. The power to regulate commerce of course carries with it the auxiliary powers of the courts of the United States to enforce the laws which Congress may enact thereunder, and also the power of the Supreme Court to REGULATION OF COMMERCE. 459 declare null and void regulations and statutes in lecture ix. contravention of those laws or of the Constitu- ^l'"*'^ '.'"^r^'" *^""' tiic-t with this pro- tion, in order that all citizens may he protected vision. from unconstitutional laws or regulations upon this subject sought to be enforced by the States. So the Federal courts, and particularly the Supreme Court of the United States, have been the theatre of a contest between certain States of the Union and citizens of other States who have thought themselves injured by State laws affecting commerce. That the courts established under the Constitution of the United States nec- essarily have a power of a judicial character, coextensive with the enforcement of the laws which Congress has a right to make and with the needful protection of the citizens of the Federal Union against laws made under a usur- pation of power by the States, in the absence of any action by Congress on the subject, would hardly seem to need any argument. I will, however, refer to the expression used in that remarkable case of Gibbons v. Ogdeu, where it is said that " wherever commerce among the States goes the judicial power of the United States goes to protect it from invasion by State legislatures." 9 Wheat. 191. There are many cases reported in the deci- sions of the Supreme Court discussing the attempted exercise of power by the State legis- latures over this subject, principally devoted to commerce among the States. As an evidence of the persistence of some of the States in this attempt to transcend their powers, I quote the 460 LECTURES ON CONSTITUTIONAL LAW. lkctukk IX headnotes of the opinion m People v. Compa- stHie laws ... con- ^ Q^nevole Traiisatlcmtinue, 107 U. S. 59, deliv- flict with this pro- -^ 7 p . vision. ered in 1882, on the subject or the landing of passengers at one of the larger ports of the United States. The syllabus contains a suffi- cient synopsis of the opinion to indicate the per- sistent effort made by some States to pass laws which they are forbidden to pass, for the pur- pose of raising taxes from people over whom they never had any right of taxation. " 1. The statute of New York of May 31, 1881, imposing a tax on every alien passenger who shall come by vessel from a foreign country to the port of New York, and holding the vessel liable for the tax, is a regulation of foreign com- merce, and void. Henderson v. Mayoi' of New York, 92 U. S. 259, and Chy Lung v. Freeman, 92 U. S. 275, cited, and the rulings therein made reaffirmed. " 2. The statute is not relieved from this con- stitutional objection by declaring in its title that it is to raise money for the execution of the inspection laws of the State, which authorize passengers to be inspected in order to determine who are criminals, paupers, lunatics, orphans, or infirm persons, without means or capacity to support themselves, and subject to become a public charge, as such facts are not to be ascer- tained by inspection alone. " 3. The words ' inspection laws,' ' imports ' and ' exports,' as used in cl. 2, sec. 10, Art. I, of the Constitution have exclusive reference to property. REGULATION OF COMMERCE. 461 "4. This is apparent from the language of cl. lecture ix. -, rv p 1 1 J • 1 1 • 1 State liiws in con- 1, sec. 9, 01 the same article, where, m regard ^j^^ ^i^j, ^i^i^. p^,^ to the admission of persons of the African race, vision, the word 'migration' is applied to free persons, and 'importation' to slaves." The point here made is that the Constitution declares that " no State shall, without the con- sent of Congress, lay any imposts or duties on imports or exports, except what may be abso- lutely necessary for executing its inspection laws." After the Supreme Court of the United States decided in the Passenger Cases, in 1849, that passengers were not imports, and could not, therefore, be taxed in that way, and after the decision in Henderson v. Mayor of New York, 92 U. S. 259, in 1875, that an amended law intended to get rid of that decision was uncon- stitutional, the legislature passed the law of 1881, and by calling it an inspection law under- took to get rid of the prohibition against the regulation of commerce by a State. This effort was declared by that opinion to be an unsuccess- ful one. There are many cases, however, reported in the decisions of the Supreme Court which up- hold the powers exercised by the State legisla- tures as coming within the rule in Cooley v. Tlie Board of Wardens, above referred to. Among those where the State laws have been supported are the cases of Willson v. The Blackhird Creek Marsh Co., 2 Pet. 245 ; Gilman v. PhiladeljMa, 3 Wall. 713, and others above cited. Willson V. The Blackhird Creek Marsh Co. 402 LECTUKES ON CONSTITUTIONAL LAW. Lecture IX. WRS a case wliere a small stream emptying into stateiawsincon-j) I j3 ^^^^- v|g for ten or fifteen flict with this pro- -*^« f}^' ^ ^ the Indian tribes. " If the act under consideration is a regulation of commerce, as it undoubtedly is, does it regu- late that kind of commerce which is placed within the control of Congress by the Consti- tution. The words of that instrument are : ' Congress shall have power to regulate com- merce with foreign nations, and among the several States, and with the Indian tribes.' Commerce with foreign nations, without doubt, means commerce between citizens of the United States and citizens or subjects of foreign govern- ments, as individuals. And so commerce with the Indian tribes means commerce with the individuals composing those tribes. The act before us describes this precise kind of traffic or commerce, and therefore comes within the terms of the constitutional provision. Is there any- thing in the fact that this power is to be exer- cised within the limits of a State, which renders the act regulating it unconstitutional ? In the same opinion to which we have just before re- ferred, \_Gibbons v. Ogden,'\ Judge Marshall, in speaking of the power to regulate commerce with foreign states, says : ' The power does not stop at the jurisdictional limits of the several states. It would be a very useless power if it could not pass those lines.' ' If Congress has power to regulate it, that power must be exer- cised wherever the subject exists.' It follows from these propositions, which seem to be in- controvertible, that if commerce, or traffic, or 472 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. intercourse, is carried on with an Indian tribe, conunerce with ^^, ^^-^j^ ^ member of such tribe, it is subiect to the Iiidiaii trihes. ^ _ •' be reguhited by Congress, although within the limits of a State. The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or i^e locality of the tribe, or of the mem- ber of the tribe with whom it is carried on. It is ,not, however, intended by these remarks to imply that this clause of the Constitution au- thorizes Congress to regulate any other com- merce, originated and ended within the limits of a single State, than commerce with the Indian tribes." In that case one of the Indians concerned be- longed in the State of Michigan, was authorized to vote in that State by its laws, and had so voted at county and town elections. He also owned property there, and, therefore, it was argued that he could not be the subject of any regulation of commerce with the Indian tribes. The answer to this proposition is, in the lan- guage of the opinion, that " neither the Consti- tution of the State, nor any act of its legislature, however formal or solemn, whatever rights it may have conferred on those Indians or with- held from them, could withdraw them from the influence of an act of Congress which that body has the constitutional right to pass concerning them. Any other doctrine would make the legislation of the State the supreme law of the REGULATION OF COMMERCE. 4 / 3 land instead of the Constitution of the United lecture ix. States." Commerce with the Indian tribes. It is, however, proper to say that it was ascer- tained that this Indian still so far retained his tribal relation that he drew his sliare of the an- nuities belonging to the tribe, and that he was among the number of those that an Indian agent was appointed to look after as members of that tribe. The court held in that case, following a long course of previous decisions, that in a mat- ' ter which constituted a kind of political relation between the Government of the United States and some other nation or tribe, the court would follow the action of what may be termed the political branch of the Government, that is, the Executive, the Congress, and the Departments. NOTES UPON LECTURE IX. lectdre IX. It is apparent that this lecture was written Cases decided some vears since. It contains no reference to a since this lecture . .,,. irvHrTTo//^ m was written. Single case decided smce 107 U. b. (October Term, 1882), although far more cases involving a con- sideration of this clause of the Constitution have been decided since then, than during any period of the same number of years since the court was organized. The footnote below gives a list of the more important of these cases.^ 1 Miller v. Neif> York, 109 U. S. 385 ; Moran v. New Orleans, 112 U. S. 69 ; Foster v. Kansas, 112 U. S. 201 ; Head Money Cases, 112 U. S. 580; Cardwell y. American Bridge Company, 11-3 U. S. 205; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727; Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196 ; Brown V. Houston, 114 U. S. 622 ; Fisk v. Jefferson Police Jiwy, 116 U. S. 131 ; Stone v. Illinois Central Railroad, 116 U. S. 347 ; Stone v. New Orleans & Northeastern Railroad, 116 U. S. 352 ; Walling V. Michigan, 116 U. S. 446 ; Coe v. Errol, 116 U. S. 517 ; Pickard V. Pxillman Southern Car Co., 117 U. S. 34 ; Tennessee v. Pullman Southern Car Co., 117 U. S. 51 ; Spraigue v. Thompson, 118 U. S. 90 ; Morgan'' s Steamship Co. v. Louisiana, 118 U. S. 455 ; Wabash &c. Railicay Co. v. Illinois, 118 U. S. 557 ; Bobbins v. Shelby County Taxing District, 120 U. S. 489; Corson v. Maryland, 120 U. S. 502 ; Fargo v. Michigan, 121 U. S. 230 ; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326 ; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347 ; 3Iugler v. Kan- sas, 123 U. S. 623 ; Smith v. Alabama, 124 U. S. 465 ; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1 ; Boicman v. Chicago & Northicestern Railway Co., 125 U. S. 465 ; California v. Central Pacific Railroad Co., 127 U. S. 1 ; Ratterman v. We.itern Union Telegraph Co., 127 U. S. 411 ; Leloup v. Port of Mobile, 127 U. S. 474 NOTES UPON LECTURE IX. 475 A selection from some of the points in the lecture ix. headnotes of a few of these cases will show their ^ire'th^s'ittre importance. was written. 1. Generally. As to those subjects of commerce which are Generally, local or limited in their nature or sphere of operation, the State may prescribe regulations until Congress assumes control of them. As to those national in character, and requiring uniformity of regulation, the power of Congress is exclusive ; and until Congress acts, such com- merce is entitled to be free from State exactions.* The clause in the Constitution wdiich confers upon Congress the power to regulate commerce among the several States leaves to the States, in the absence of congressional legislation, the power to regulate matters of local interest, which affect interstate commerce only inciden- tally ; but the power of Congress over interstate commerce is exclusive wherever the matter is national in character, or admits of a uniform system or plan of regulation. So long as Con- gress passes no law to regulate interstate com- merce of the nature and character which makes its jurisdiction exclusive, its refraining from 640 ; Kidd v. Pearson, 128 U. S. 1 ; Asher v. Texas, 128 U. S. 129 ; Stotiteiih7trgh v. Henrick, 129 U. S. 141 ; Western Union Telegraph Co. V. Alabama, 132 U. S. 472 ; Lonisville, New Orleans tf-c. Rail- way Co. V. Mississippi, lo3 U. S. 587 ; Leisy v. Hardin, 135 U. S. 100; McCall \. California, 136 U. S. 104; Norfolk & Western Railroad Co. v. Pennstjlvania, 136 U. S. 114; Minnesota v. Barber, 136 U. S. 313 ; Crowley v. Christensen, 137 U. S. 86 ; Brimmer v. Rebman, 138 U. S. 78. 1 Gloucester Ferry Co. v. Pennsylvania, 114 V. S. 190. 476 LECTUKES ON CONSTITUTIONAL LAW. Lecture IX. actioii indicates its will that commerce shall be Generally. ^^^^ .^^^ untrammelled.^ The transportation of persons and property between States is commerce of a national char- acter, requiring uniformity of regulation.^ The prohibition of the Constitution against State laws impairing the obligation of contracts applies to implied contracts as well as to express contracts.^ ' Interstate commerce by corporations is enti- tled to the same protection against State exac- tions which is given to such commerce when carried on by individuals.* A State act which imposes limitations upon the power of a corporation, created under the laws of another State, to make contracts within the State for carrying on commerce between the States, violates that clause of the Constitution which confers upon Congress the exclusive right to regulate that commerce.^ The power to regulate commerce, interstate and foreign, vested in Congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions on which it shall be conducted ; to determine when it shall be free, and when subject to duties or other exactions.^ When goods, the product of a State, have 1 Brow7i V. Houston, 114 U. S. 022. 2 Gloucester Ferry Co. v. Pennsijlvania, 114 U. S. 196. 3 Fisk V. Jefferson Police Jury, 110 U. S. 1.31. * Gloucester Ferry Co. v. Pennsylvania., 114 U. S. 196. ^ Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727. ^ Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196. NOTES UPON LECTURE IX. 477 begun to be transported from that State to lkcture ix. another State, and not till then, they become ^'^"•^''^^'y- the subjects of interstate commerce, and, as such, are subject to national regulation, and cease to be taxable by the State of their origin. Goods on their way through a State, from a place outside thereof to another place outside thereof, are in course of interstate or forei";n transportation, and are subjects of interstate or foreign commerce, and are not taxable by the State through which they are passing, even though detained within that State by low water, or other temporary causes.^ Interstate commerce cannot be taxed at all by a State, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State .^ The question whether, when Congress fails to provide a regulation by law as to any particular subject of commerce among the States, it is con- clusive of its intention that that subject shall be free from positive regulation, or that, until Congress intervenes, it shall be left to be dealt with by the States, is one to be determined from the circumstances of each case as it arises.^ A burden imposed upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enact- ing it.* 1 Coe V. Errol, 116 U. S. 517. 2 Robbins v. Shelbij Counhj Taxing District, 120 U. S. 489. ^ Bowman v. Chicago & Northicestern Eaihoay Co., 125 U. S. 465. * Minnesota v. Barber, 136 U. S. 313. 478 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Bridges. Steamships. 2. Bridges over Navigable Streams. A bridge erected over the East River in New York, in accordance with authority derived from Congress and from the legislature of New York, is a lawful structure, which cannot be abated as a public nuisance.^ In the absence of legislation by Congress, a State may authorize a navigable stream within its limits to be obstructed by a bridge or high- way ; ^ but Congress has plenary powers respect- ing such streams and is not concluded, by anything that may have been done under State authority, from assuming entire control, abat- ing any erections that may have been made, and preventing any other from being made except in conformity with such regulations as it may impose.^ 3. Steamships. A tax upon the gross receipts of a steamship company incorporated under its laws, which are derived from the transportation of persons and property by sea, between different States and to and from foreign countries, is a regulation of interstate and foreign commerce, in conflict with the exclusive power of Congress under the Con- stitution.^ 1 Miller V. New York, 109 U. S. 385. 2 Carclivell v. American Bridge Company, 113 U. S. 205. 3 Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1. * Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326. NOTES UPON LECTURE IX. 470 4. Railroads. A privilege tax of fifty dollars per annum on lecture ix. every sleeping car or coach used or run over a^'^""'^^ ^* railroad in Tennessee, and not owned or run by the railroad on which it was run or used, was held to be void so far as it applied to the inter- state transportation of passengers carried over railroads in Tennessee into or out of or across that State, in sleeping cars owned by a corpora- tion of Kentucky, and leased by it to Tennessee corporations, the latter receiving the transit fare, and the former the compensation for the sleep- ing accommodations.^ A State statute requiring locomotive engineers on railroad trains to obtain licenses from the State before being permitted to run trains within the State is not a regulation of commerce when applied to engineers on through trains coming into the State from another State, or going from it to another State.''^ A State statute which levies a tax upon the gross receipts of railroads for the carriage of goods and passengers into, out of, or through the State, is a tax upon commerce among the States, and therefore void. The States cannot be permitted, under the guise of a tax upon business within their borders, to impose a bur- den upon commerce within the States, when the business so taxed is itself interstate commerce.^ 1 Pickardv. Pullman Soitthern Car Co., 117 U. S. 34. 2 Smith V. Alabama, 124 U. S. 465. 8 Fargo v. Michigan, 121 U. S. 230. 480 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Railroads. Quarantine. Tax on commerce. Congress has authority, m the exercise of its power to regulate commerce among the several States, to construct or authorize the construc- tion of raih^oads across the States and Terri- tories of the United States ; and the franchises thus conferred cannot, without its permission, be taxed by the States.^ 5. Quarantine. States may enact quarantine laws which amount to regulations of commerce, though not intended to be so, and maintam them until Con- gress acts in the matter by covering the same ground, or by forbidding State legislation.'^ 6. Tax on Commerce. A municipal ordinance of the city of New Or- leans to establish the rate of license for profes- sions, callings, and other business, which assesses and directs to be collected a tax from persons owning and running towboats to and from the Gulf of Mexico and the city of New Orleans is a regulation of commerce among the States, and is an infringement of the provisions of Article 1, section 8, paragraph 3, of the Constitution;^ The act of Congress of August 3, 1882, "to regulate immigration," which imposed upon the owners of steam or sailing vessels bringing pas- sengers from a foreign port into a port of the United States, a duty of fifty cents for every 1 California v. Central Pacific Railroad Co., 127 L^. S. L * Morgan's Steamship Co. v. Louisiana, 118 U. S. 455. * Moran v. New Orleans, 112 U, S. 69. NOTES UPON LECTURE IX. 481 such passenger, not a citizen of this country, was lecture ix. a valid exercise of the power to regulate com- '^^^ "" '°"'™''*^"- merce with foreign nations.^ The business of receiving and landing of pas- sengers and freight is incident to their trans- portation, and a tax upon such receiving and landing is a tax upon transportation and upon commerce, interstate or foreign, involved in such transportation.^ 7. Telegraphs. A State statute intended to regulate, or to Telegraphs, tax, or to impose a restriction upon the trans- mission of persons, or property, or telegraphic messages, from one State to another, is not within that class of legislation which a State may enact, in the absence of legislation by Con- gress; and such statutes are void, even as to the part of such transmission within the State.^ The judgment in this case was announced on the 25th of October, 1886, Mr. Justice Miller delivering the opinion of the court. It is not too much to say that it was the immediate cause of the passage of the " act to regulate commerce," commonly known as the Interstate Commerce Act.^ The reserved police power of a State under the Constitution, although difficult to define, 1 Head Money Cases, 112 U. S. 580. '•2 Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196. 3 Wabash, St. Louis d'c. Baihcayv. Illi7iois, 118 U. S. 557. * 24 Stat. 379, c. 104 ; amended March 2, 1889, 25 Stat. 855, c. 382. 482 LECTURES ON CONSTITUTIONAL LAW. Lecture IX. Telegraphs. does not extend to the regulation of the deliv- ery at points without the State of telegraphic messages received within the State ; but the State may, within the reservation that it does not encroach upon the free exercise of the pow- ers vested in Congress, make all necessary pro- visions in respect of the buildings, poles, and wires of the telegraph companies within its jurisdiction, which the comfort and convenience of the community may require.^ A sino;le tax assessed under the laws of a State upon receipts of a telegraph company, which were partly derived from interstate com- merce and partly from commerce within the State, and which were capable of separation, but were returned and assessed in gross and without separation or apportionment, is invalid in propor- tion to the extent that such receipts were derived from interstate commerce, but is otherwise valid."^ Spirituous liquors. 8. Sjnrituous Liquors. A State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to the Constitution of the United States.^ A State cannot, for the purpose of protecting its people against the evils of intemperance, enact laws which regulate commerce between its people and those of other States of the Union, 1 Western Union Teleyraph Co. v. Pendleton, 122 U. S. 347. 2 Eatterman v. Western Union Tel. Co., 127 U. S. 411. See also Lelovp V. Port of Mobile, 127 U. S. 640 ; Western Union Tel. Co. V. Alabama, 182 U. S. 472. 3 Foster v. Kansas, 112 U. S. 201. NOTES UPON LECTURE IX. 483 unless the consent of Congress, express or im- lecture ix. plied, is first obtained.^ spirituous ^ ' liquors. The sale of spirituous liquors by retail and in small quantities may be regulated or prohibited by State legislation, without violating the Con- stitution or laws of the United States.^ 9. Discrmiinating License Taxes. The act of the legislature of Tennessee pro- Discriminating viding that '• all drummers and all persons j^q^^ ^'^^"^^ **^^*- having a regular licensed house of business in the taxing district of Shelby County, offering for sale or selling goods, wares, or merchandise therein, by sample, shall be required to pay to the county trustee the sum of $10 per week, or $25 per month for such jDrivilege," ajoplies to persons soliciting the sale of goods on behalf of individuals or firms doing business in another State ; and, so far as it applies to them, it is a regulation of commerce among the States, and violates the provision of the Constitution, which grants to Congress the power to make such regulations.^ 10. Discrimiyiating Taxes. A tax imposed by a State statute upon an oc- Discriminating cupation which necessarily discriminates against *^^^^* 1 Bowman v. Chicago <£• Xorthwestern Railvaii Co., 125 U. S. 465. See Mngler v. Kansas, 123 U. S. 02^; Judd v. Pearsonyl28 XJ. S. 1 ; Leisy v. Hardin, 135 U. S. 100 ; Croicley v. Christensen, 137 U. S. 86. " • • 2 Crmdey v. Christensen, 137 U. S. 86. 3 Robhins v. Shelby Coxinty Taximi District, 120 U. S. 489. See also Corson v. Maryland, 120 U. S. 502 ; Asher v. Texas, 128 U. S. 129 ; Stoutenhurijh v. Hennick, 129 U. S. 141 ; McCall v. Califurnia, 136 U. S. 104. 484 LECTURES ON CONSTITUTIONAL LAW. lecturk IX. the introduction and sale of the products of f^es'"""'"'"'^ another State, or against the citizens of another State, is repugnant to the Constitution of the United States.^ 11. Food Inspection. Food inspection. A law providing for the inspection of animals, whose meats are designed for human food, can- not be regarded as a rightful exercise of the police power of the State, if the inspection pre- scribed is of such a character, or is burdened with such conditions, as will prevent the intro- duction into the State of sound meats, the prod- uct of animals slaughtered in other States.^ The Virginia statute of February 18, 1890, makes it unlawful to offer for sale, within the limits of that State, any beef, veal, or mutton from animals slaughtered one hundred miles or more from the place at which it is offered for sale, unless it has been previously inspected and approved by local inspectors appointed under that act. It fixes the inspector's compensation at one cent a pound, to be paid by the owner of the meats. It does not require the inspection of fresh meats from animals slaughtered within one hundred miles from the place in Virginia at which such meats are offered for sale. The act was held to be void, as being in restraint of commerce among the States, and as imposing a discriminatino; tax.^ 1 Walling v. Michiflan, 116 U. S. 446. 2 Minnesota v. Barber, 136 U. S. 31.3. * Brimmer v. Rebman, 138 U. S. 78. X. THE RIGHT OF TRIAL BY JURY.^ Article I, Section 9, Paragraph 2. The Privi- Lectueb X. lege of the Writ of Habeas Corpus shall not be sus- pended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Article III, Section 2, Paragraph 1. The judi- cial Power shall extend to all Cases, in. . . Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. Article III, Section 2, Paragraph 3. 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 committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Article V of the Amendments. No person shall be held to answer 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 ; nor shall any per- son be subject for the same offence 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. Article VI of the Amendments. In all criminal prosecutions, the accused shall enjoy the right to a 1 C'est done le jury civil qui a r^ellement sauv6 les libertfis de I'Angleterre. De Tocqueville. 485 486 LECTURES OX CONSTITUTIONAL LAW. Lecture X. 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 ascertained 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 favour, and to have the Assistance of Counsel for his defence. Article VII of the Amendments. 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. The Constitution ''No One familiar with the common law of founded upon England can read the Constitution of the United Enghsn law. o States without observing the great desire of the Convention which framed that instrument to make it conform as far as possible with that law. One would suppose that the leaders of a revolutionary movement of eight years' duration or more, the purpose of which was to emancipate the newly formed States from the dominion of Great Britain, would have come out of that struggle with resentments arising from a sense of injury at the hands of that government which would have created a prejudice against its laws and their system of administration. On the contrary, it seems obvious from the instrument which they produced as the fundamental and organic law of a new government for a new country, that their attachment for the old laws and even for the old general form of political government remained almost unaffected. 1 This is Lecture VIII delivered before the classes of the Uni- versity Law School. RIGHT OF TRIAL BY JURY. 487 To look at the general outlines organizing the i.f.cture x. new government nito its various branches, tliere f,„„„i^.,i „p„„ is but little departure from that of the English English law. government. The President, the Sefiate, and the House of Representatives correspond in es- sential features with the King, Lords, and Com- mons of Great Britain. And although tliere was a necessit}^ arising from the bringing to- gether of thirteen different States mto one general government, with a recognition of many of the most important powers of government left in the States themselves, to vary in some respects the powers which were confided to the President, the Senate, and the House of Repre- sentatives from those which had by immemorial usage come to be the powers of the King, the House of Lords, and the House of Commons of Great Britain, yet the analogy is very close. It has often been said that Mr. Hamilton, who perhaps of all other men in the Convention which framed this Constitution most strongly impressed his views upon that instrument, desired a still closer conformity to the British model in the matter of stronger powers in the Federal Gov- ernment, and especiall}^ in the Senate and Execu- tive. The first great nation of the earth which sue- unsuccessful ceeded us in the process of revolution and form- ^^^"'^^^ attempts A at framing cou- ing a new government, namely, the French, stitutious. acted in a very different manner. They abolished at one blow the existence of the King, or of any recognized power which represented the func- tions of the Crown. They reposed all the power 488 LECTURES ON CONSTITUTIONAL LAW. Lkcturb X. Unsuccessful Freiii;li attempts sit framing cou- stitutions. ED^lish features retained in the Constitution. Distinction be- tween law and equity. of the government in a single body elected directly by the people. They also abolished during the course of their revolutionary pro- ceedings Iheir entire body of civil law, and sub- stituted therefor a new code called the "Code Napoleon," which has been supposed by many jurists to be the ablest code of laws ever formed for the government of a people. The instability of the government which resulted from this action of the French people and of all govern- ments formed by that nation since the revolu- tion of 1793, may well be used as an argument agrainst such violent and sudden chans^es. Cer- tainly if any deduction on that subject is to be made from the success and stability given to a new government by its adherence to the best maxims of the old one out of which it was formed, the history of the United States pre- sents that argument in its best form. Not only did the framers of the new Consti- tution follow as well as they might the general polity of the English system, but they evinced an ardent desire to preserve the principles which had been accepted as part of the general admin- istration of the law among our ancestors. This is shown in many of the provisions of the Con- stitution. Among others, the article concerning the judicial powers of the new government establishes its jurisdiction as extending to all cases in admiralty, and in law, and in equity, thus recognizing the English separation of these three classes of legal controversies as being gov- erned by a separate jurisdiction. At least such RIGHT OF TRIAL BY JURY. 489 has been the construction placed upon that in- lectukk x. strument by the courts of the country without '"''*^'"^''°"^®" . '^ tween law and much question. It has been repeatedly decided equity, that the jurisdiction in equity, which was a very- peculiar one under the English system of legal administration, remains in the courts of the United States as it was at the time they sepa- rated from that country, and that one of the distinctive features of the difference between law and equity, namely, that at law there is a right to a trial by jury, and in equity there is none, has continued to the present day. And it is a very grave question, one which has never been brought to the attention of the courts, because Congress has never attempted to exer- cise any such authority, whether the Congress of the United States can make any change in the equitable jurisdiction of the courts of the United States, and if so, to what extent it can be done. Another very important instance in which the Habeas corpus, venerable maxims of the common law have been • thought worthy of a place in the organic law of this country, is that concerning the writ of habeas corpus, the great writ by which a person unjustly imprisoned may cause himself to be brought before the proper judicial tribunal, and have the nature, cause, and legality of that im- prisonment inquired into. Among the limi- tations imposed by section 9 of Article I, is the declaration that " the privilege of a writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." 490 LECTURES ON CONSTITUTIONAL LAW. I.KCTURE X. Kijjlit of trial by jury. The jury system of England. Grand jury. Of a similar character, and perliaps of much more importance, is the subject to which I invite your attention this evening as it is found in the Constitution, namely, that of the right of trial by jury. This right has been the subject of such inquiry into its origin and history, and of such glowing eulogy by all those who believe in the beauties of the common law, and by many who do not, as well as of criticisms upon its value, which have become more frequent in modern times, that I must rely upon your general read- ing upon this subject without myself entering upon its discussion.^ The jury system of the English at the time of the adoption of our Constitution divided it- self into two branches. One of these was called the grand jury, whose purpose and func- tion was to make inquiry as to crimes committed in the county, and presentments to the court of such charges as they thought proper growing out of that investigation ; and also when indict- ments for crimes were submitted to them by the law officers of the government, it was their duty to pass upon them by endorsing them as true bills, or ignoring them as not supported by the 1 In 1215 personal rights were secured to the subject by Ma,gna Charta, which declared : " No freeman shall be taken or impris- oned, or be disseized of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise damaged, nor will one pass upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land." 2 Inst. 45. Lord Coke says in his comments upon this clause that it " hath the first place, because the liberty of a man's person is more precious than all the rest which follows." EIGHT OF TRIAL BY JURY. . 491 facts before them. This grand jury consisted of lecture x. a number of jurors, varying from twelve or flf. cirand jury, teen to twenty-four, but the concurrence of twelve of that number was always required in making a presentment or finding an indictment. The other form of jury is the one before which Petit jury, the trial actually takes place. " This means the examination before a competent tribunal, [the jury,] according to the laws of the land, of the facts put in issue for the purpose of determining such issue." ^ This jury has always been composed, at least in modern times, of twelve men, and its finding of issues presented to it can only be made by the concurrence of all the twelve. These jurors are supposed to be impartial, and the manner of their appointment or selection has been pre- scribed by acts of Congress as regards trials in the Federal courts, and by statutes of the States so far as trials in the State courts are concerned, with a view to secure this object. Whether it is in the power of Congress to modify this sys- tem, by prescribing a jury of less than twelve men, or by giving validity to a verdict which represents less than the whole number of twelve, are questions which have never been decided because Congress has never attempted to vary this rule. There have been decisions of vari- ious courts that this could not be done, that the word " jury " as used in the Constitution means " ex vi termini," a tribunal of twelve men, 1 United States v. Curtis, 4 Mason, 232. 492 LECTURES ON CONSTITUTIONAL LAW. Lecture X. Petit jury. The Seventh Ameudment. It has relation to the common law as understood in England. and that its verdict must be unanimous to be the verdict of a jury under the Constitution. The question, so far as I am aware, has never been decided by tlie Supreme Court because no law has ever been passed by Congress to vary or change the common law rule. In no other way could it come before that court. The right of trial by jury has relation to civil cases and to prosecutions for crimes. The origi- nal Constitution contained no specific reference to such trial in civil cases, but the Seventh Article of the Amendments 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 States, than according to the rules of the common law." The first thing to be observed about this Arti- cle is that it prescribes this mode of trial in " suits at common law.'' It does not use the same words as the clause extending the judicial power " to all cases in law and equity." It is to be inferred, therefore, that trial by jury, as imposed by the Constitution, has relation to the common law as it was understood in England and to the right to such a trial in that class of cases. This distinction may be important in regard to a class of cases where a summary remedy is given by a statute, which is itself a departure from the common law and at variance with it. How far in this anomalous class of cases, which, while they may be said to be cases RIGHT OF TRIAL BY JURY. 493 at law, as distinguished from cases in equity, are lecture x. not "suits at common law," the parties would J' ''^' '""'^'7 ^'^ ' ^ the common law have a right to demand a trial by jury, it is not as understood lu my purpose at present to inquire. Nor is it '°^^" material why the sum of twenty dollars was established as the line above which the Consti- tution gave the right to a trial by jury and did not do so below it. This Article of the Amendments to the Con- it applies only to stitution, as well as all of the others from one *^^ ^'"'^^'^ ^'^'^•'• to eight inclusive, applies to the powers exer- cised by the Government of the United States, and not to those of the States. This has been repeatedly decided.^ But while the effect given by this Article as Effect of a ver- to a fact tried by a jury has relation to such effect in the courts of the United States, it applies equally to verdicts found by juries in the State courts ; that is to say, that in a court of the United States a fact once found by a jury of a State court or of a Federal court shall not be re-examined in any other manner than ac- cording to the rules of the common law. This conclusiveness given to the verdict of a jury is in accordance with the common law of England, and is an additional evidence of the sanctity with which the right of trial by jury is held both in that country and this. Let it also be observed that this Article does not prescribe as an arbitrary rule to the courts that all cases Dmst be tried by a jury which are suits at com- 1 Livingston v. Moore, 7 Pet. 469 ; The Justices v. Murray, 9 Wall. 274 ; Edwards v. Elliott, 21 Wall. 532. 494 LECTURES ON CONSTITUTIONAL LAW. I.icrxuRE X. Kffoct of a ver- dict. A jury may be waived. mon law and exceed twenty dollars in value, but that it is the rigid of any party to such a suit to have a trial by a jury if he demands it. The parties can waive this right ^ and submit the case to the court without a jury, in which case the judgment of the court would be equally binding as if there had been a verdict of a jury ; and in practice in this country, both in the Fed- eral and State courts, a very large proportion of the trials of issues of fact are by the judge or judges of those courts without the aid of a jury. In the Federal courts the consent of all the parties concerned is essential to the validity of 1 Tliough this right to a trial by jury embraces all suits not in equity or admiralty {Parsons v. Bedford^ 3 Pet. 433) ; yet parties may waive the right {Bond v. Brown, 12 How. 254 ; Morgan v. Gay, 19 Wall. 81 ; Baylis v. Travellers' Ins. Co., 113 U. S. 316 ; Flanders v. Tioeed, 9 Wall. 425 ; Henderson's Distilled Spirits, 14 Wall. 44 ; Phillips v. Preston, 5 How. 278) ; and in a suit in equity the court may not only find the facts itself without impairing the right of trial by jury, but it may disregard the findings of fact by a jury, if it thinks them wrong {Bnsey v. Gallagher, 20 Wall. 070). So, too, the mode of proceeding in the Court of Claims, under the statutes, is constitutional. McElrath v. United States, 102 U. S. 426. This constitutional provision, so far as it relates to civil actions, is a restriction only upon courts of the United States. Edwards v. Elliott, 21 Wall. 532, 557. State courts are not forbid- den, even by the provisions in the Fourteenth Amendment as to " due process of law." Walker v. Souvinet, 92 U. S. 90. This guaranty of trial by jury is as operative in time of war as in time of peace ; is equally binding upon rulers and people, at all times and under all circumstances. Military commissions organ- ized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence, for any criminal offence, a citizen who was not a resident in a, rebellious State, nor a prisoner of war, nor a person in the military or naval service, and Congress could not invest them with that power. Ex parte MilUgan, 4 Wall. 2. RIGHT OF TRIAL BY JURY. 495 this form of trial. Indeed it had been decided lkcture x. prior to the act of Contrress of 1865^ that there ^^^''^ "^ ^^^^'^ » •■■ ~ judgment. could be no writ of error or ajopeal to a judg- ment of an inferior court in a suit at common law in which the parties had submitted the case to the court without a jury, because, as was held by the Supreme Court of the United States, such judgment was in effect but a mere arbitration. But by that statute Avhere the parties waive a jury by a stipulation in writing, the finding of the court upon the facts, which might be either general or special, was to have the same effect as the verdict of a jury, and the judgment might be reviewed by the Supreme Court upon a writ of error or upon a2:)peal, the review ex- tending to the sufficiency of the facts found to support the judgment, and to such exceptions as might have been taken and presented by a bill of exceptions during the progress of the trial.^ These provisions of the act of 1865 are embodied in sections 649 and 700 of the Revised Statutes of the United States. The language of this Article is that "no fact now judgments tried by a jury shall be otherwise re-examined °" '^ ^'"'^^''^'^ *^"^"^*^ ], , rr ' 1 r< t ^^ re-examined at m any court oi the U nited States, than accord- the common law. ing to the rules of the common law." The common law admitted of but two modes of re-examining the verdict of a jury. One of these was by a motion for a new trial in the same proceeding, and usually in the same court in 1 13 Stat. 501, c. 8G, § 4. 2 A^orris v, Jackson, 9 Wall. 125. 496 LECTURES ON CONSTITUTIONAL LAW. Lecture X. wliich tliG verdict WRS rendered. The otlier was How jud-inents I gome siipervisorv or appellate court which on a verdict could -^ ^ ^ its successor. been in the Supreme Court of the United States more than one justice, who have thought it not within the constitutional power of one legisla- ture to limit the taxing power of a succeeding one. I have no hesitation in saying that I am one of those. As late as 1869 Chief Justice Chase, Justice Field, and myself made a dissent on that subject.^ There has never been a time in the history of the court when there was not a dissenting justice who did not believe in the validity of that class of subsequent legislation ; but the majority of the court has always held that these contracts were within the power of the legislatures to make, were binding on them as well as the State, and that, when subsequent legislatures sought to impair them, they were protected by the clause of the Constitution which we have been considering. The theory upon which these decisions have been based is that the State is a corporation, and that all statutes passed by it which invite persons to invest their capital upon the promise of cer- tain privileges granted, which are formally ac- cepted by the grantees and acted upon, constitute a contract between' the State and those parties. I concur with this statement of a general prin- 1 Wasldnfjton University v. Rouse, 8 Wall. 439, 441. IMPAIRMENT OF CONTHACTS. 5G3 ciple when it is applied to anything which a lkcture xi. State may properly do ; that is to say, that any ^ J,^fof ||I"i7tho contract about a matter which is within theuMaxing power of • , 1 • , 1 • . T 1 T 1 its successor. power comes withm this reasonmg and should be protected. But where the power is wanting, as it is above intimated is my opinion in regard to limiting future taxation, of course this argu- ment would not apply. Perhaps I cannot do better at this point than to quote from the opinion that I had the honor to deliver in regard to this subject of taxation in its relations to the clause of the Constitution now under discussion. The following language was there used : — " As we have already said, since the legisla- ture which passed the act of 1865 had the power to make a contract which should not be subject to repeal or modification by one of the parties to it without the consent of the other, the main question here is, did they intend to make such a contract ? " The principal function of a legislative body is not to make contracts, but to make laws. These laws are put into a form which, in all countries using the English language, and in- heriting the English common law, is called a statute. " Unless forbidden by some exceptional con- stitutional provision, the same authority which can make a law can repeal it. The Constitution of the United States has imposed such a limita- tion upon the legislative power of all the States, by declaring that no State shall pass any law 564 LECTURES ON CONSTITUTIONAL LAW. Lecture XI. A legislature cauiiot limit the taxing power of its successor. impairing the obligation of a contract. The frequency with which this court has been called on to declare State laws void, because they do impair the obligation of contracts, shpws how very important and far reaching that provision is. " It may safely be said that in far the larger number of cases brought to this court under that clause of the Constitution, the question has been as to the existence and nature of the contract, and not the construction of the law which is sup- posed to impair it ; and the greatest trouble we have had on this point has been in regard to what may be called legislative contracts, — contracts found in statute laws of the State, if they existed at all. It has become the established law of this court that a legislative enactment, in the ordinary form of a statute, may contain provisions which, when accepted as the basis of action by individ- uals or corporations, become contracts between them and the State within the protection of the clause referred to of the Federal Constitution. " The difficulty in this class of cases has always been to distinguish what is intended by the legislature to be an exercise of its ordinary legislative function in making laws, which, like other laws, are subject to its full control by future amendments and repeals, from what is intended to become a contract between the State and other parties wlien the terms of the statute have been accepted and acted upon by those parties. This has always been a very nice point ; and, when the supposed contract exists only in the form of a general statute, doubts IMPAIRMENT OF CONTRACTS. 5G5 still recur, after all our decisions on that class of lecture xi. questions. ^ ie,isiat,u-e ^ eaniidt limit tlie '' These doubts are increased when the terms taxing power of of the statute relate to a matter which is in its essential nature one of exclusive legislative cog- nizance, and which at the same time requires money or labor to be expended Ijy individuals or corporations. In such cases the legislature may be supposed to be merely exercising its power of regulating the burdens which are to be borne for the public service, m which case it could be modified from time to time as lesrislative discre- tion might determine ; or it might be a contract founded on a fair consideration moving from the party concerned to the State, and which in that case would be beyond the power of the State to impair. Statutes fixing the taxes to be levied on corporations, partake in a striking manner of this dual character, and require for their construction a critical examination of their terms, and of the circumstances under which they are created. " The writer of this opinion has always be- lieved, and believes now, that one legislature of a State has no power to bargain away the right of any succeeding legislature to levy taxes in as full a manner as the Constitution will permit. But, so long as the majority of this court adhere to the contrary doctrine, he must, when the question arises, join w^ith the other judges in considering whether such a contract has been made." ^ 1 New Jersey v. Yard, 95 U. S. 104, 113, 114, 115. NOTES UPON LECTURE XL Lecture XI. This lecture, like the lecture upon the Regu- impairmentof j^^-^^ ^f Commerce, was evidently prepared contracts. ' c/ i r some years ago, and has not been brought down by incorporating into it the later decis- ions. The latest case cited in it is from 105 U. S. So far as it comes it is thorough ; and nothing is left for the editor to do except to take up the Reports at volume 106. and note the more important cases from that time on to the close of volume 140. In deciding whether a State statute of incor- poration created a contract, and whether a sub- sequent statute of the State, as construed by its courts, impaired that contract, the Supreme Court is not governed by previous decisions of the States, unless they are so firmly established as to have become a rule of property.^ The right to demand reimbursement from a municipal corporation for damages caused by a mob is not founded on contract ; and the fact that a statutory right to demand such reim- bursement has passed into a judgment does not convert the obligation into such a contract as is contemplated in the provision in the Constitu- 1 Louisville & Nashville Railroad v. Palmes, 109 U. S. 244. 566 NOTES UPON LECTURE XI. 56' tion that no State shall pass any law impairing lectuke xi. the oblio-ation of contracts. The term contract, i^P^i'-™^^^ «' o ' contracts. as used in the Constitution, signifies the agree- riient of two or more minds, for considerations proceeding from one to the other, to do or not to do certain acts.^ When a contract is made with a municipal corporation upon the faith that taxes will be levied, legislation repealing or modifying the taxing power of the corporation, so as to deprive the holder of the contract of all adequate and efficacious remedy, is within the inhibition of the Constitution. A judgment creditor of such a corporation, entitled by his contract to be paid out of specific tax levies, is further entitled, in mandanms proceedings, to a writ ordering the levy and collection of a sufficient tax to pay his judgment." The power of a State legislature to make a contract which, under the Constitution, cannot be modified or abrogated, does not extend to , subjects aff^ecting public health or public morals.^ The Funding Act of March 30, 1871, of " the State of Virginia, and the issue of coupon bonds under it, constituted a valid contract between the State and the holders of the coupons that the coupons should be receivable at and after maturity for all taxes, debts, dues, and demands due the State, which the legislature of Virginia 1 Louisiana v. Mayor of New Orleans, 109 U. S. 285. 2 Louisiana ox rcl. Nelson v. St. Martin's Parish, 111 U. S. 716. ^ Butchers'' Union Co. v. Crescent City Live Stock Co., Ill U. S. 746. 568 LECTURES ON CONSTITUTIONAL LAW. Lecture XI. was not at liberty to rescind or modify without Impairment of ^j^^ ^^^^^^ ^^ ^j^^ hoMerS of tlie COUOOnS.^ contracts. ^ When a statute attaches a fixed compensation to a public office during tlie whole term of ser- vice of a person legally filling the office and performing the duties thereof, a complete, im- plied obligation arises to pay for the services at the fixed rate, which can be enforced by the remedies which the law then gives ; and, as the prohibition of the Constitution against State laws impairing the obligations of contracts applies to implied contracts, it is not within the power of the State, by a change in its Constitution, to take away existing powers of taxation so as to deprive the incumbent of the means of collecting his salary then earned.^ The remedy subsisting in a State when and where a contract is made and is to be performed is a part of its obligation. Any subsequent statute of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is void. When it is a material part of a contract between a numicipal corporation and the holders of its bonds that the creditor should always have the right to a special tax, to be levied and collected under laws then in force, in the same manner as county taxes at the same time might be levied, it is not within the power 1 Virginia Coripon Canes, 114 U. S. 269. See also McGuhey v. Virginia, 135 U. S. 062 ; Hncless v. Childrey, 1.35 U. S. 709 ; and Vashon V. Greenlww, V^^^ U. S. 713. ^ Fisk V. Jefferson Police Jurij, 116 U. S. 131. NOTES UPON LECTUKE XI. 569 of the legislature to repeal the existing laws, lectukk xi. and substitute for them statutes reo-ulatinii; the ^"^P'"'"'"entof " ^ o contracts. assessment and collection of such taxes in a way which is not a legal equivalent.^ The provision in the Constitution in regard to the impairment of contracts is aimed at the legislative power of the State, and not at de- cisions of its courts, or acts of executive or administrative boards or officers, or doino-s of corporations or individuals. Hence the Supreme Court has no jurisdiction of a writ of error to the highest court of a State on the ground that the obligation of a contract has been impaired, unless some legislative act of the State is upheld by the judgment sought to be reviewed.^ The provision in the Constitution of West Virginia of 1872, that property of a citizen of the State should not '' be seized or sold under final process issued upon judgments or decrees heretofore rendered, or otherwise, because of any act done according to the usages of civilized warfare in the prosecution of the ' war of the rebellion ' by either of the parties thereto," does not impair the obligation of a contract Avithin the meaning of the Constitution of the United States when applied to a judgment previously obtained, founded on a tort committed as an act of public war.^ The exemption of a railroad corporation, in- 1 Seihert v. Lewis, 122 U. S. 284. 2 New Orleans Water Works v. Louisiana Sugar Eefining Co.,, 125 U. S. 18. 2 Freeland v. Williams, 131 U. S. 405. 570 LECTURES ON CONSTITUTIONAL LA.W. Lecture XI. corporated by a State, from future general legis- Iinpairment of j^^-^^ ^f ^j^^ C^^^^^ ^-^j^^j, -^^ -^^ Constitlltioil Or contracts. -' by an act of its legislature, cannot be admitted to exist, unless it is expressly given, or unless it follows by an implication equally clear with express words. ^ The fifteenth section of the act of the legisla- ture of New York, approved June 6, 1885, pro- vides that no action or special proceeding shall thereafter be maintained against the city of Brooklyn, or the Registrar of Arrears of that city, to compel the execution or delivery of a lease upon any sale for taxes, assessments, or water rates, made more than eight years prior to the above date, unless commenced within six months after that date, and notice thereof filed in the office of the Registrar of Arrears ; also, that that officer shall, upon the expiration of such six months, cancel in his office all sales made more than eight years before the passage of the act, upon which no lease had been given, and no action commenced and notice thereof filed, within the period limited as aforesaid, and that thereupon the lien of all such certificates of purchase should cease and determine. On these facts the court held (1) That this section was not repugnant to the clause of the Constitution of the United States forbidding a State to pass any law impairing the obligation of contracts, or to the clause declaring that no State shall deprive any person of property with- * 1 Pennsylvania Railroad Co. v. Miller, 132 U. S. 75. NOTES UPON LECTURE XI. 571 out due process of law; (2) That, consistently lecture xi. with those clauses, the legislature might prescribe ^'"p^^'"'"^"^ "^ , , . contracts. a limitation for the bringing of suits where none previously existed, as well as shorten the time within which suits to enforce existing causes of action should be commenced, provided, in each case, a reasonable time, taking all the circum- stances into consideration, be given by the new law for the commencement of suit before the bar took effect.^ On December 12, 1883, the city of Sioux City, in Iowa, by ordinance, conferred on a street rail- way company, incorporated December 6, 1883, under the general laws of Iowa, the right of operating a street railway, with the require- ment that it should pave the street between the rails. Subsequently, under an act of 1884, the city, by ordinance, required the company also to pave the street for one foot outside of the rails, and assessed a special tax against it for the cost of the paving outside of the rails. On these facts it was held that there was no contract between the company and the State or the city, the obligation of which was impaired by the laying of the tax : and that, under section 1090 of the Code of Iowa, which was in force when the company was incorporated, its franchise was subject to such conditions as the legislature should thereafter impose as necessary for the public good.^ 1 Wheeler v. Jackson, 137 U. S. 245. 2 Sioux City Street Railway Co. v. Sioux City, 138 U. S. 98/ 572 LECTURES ON CONSTITUTIONAL LAW. lf.cture XI. A ferry connecting Wheeling with Wheeling IZrivcTs'"'"' Isl^i^d was licensed at an early day in Virginia. Subsequently a general law of that State pro- hibited the courts of the different counties from licensing a ferry within a half a mile in a direct line from an established ferry. Still later the defendant purchased the ferry and its rights. On these facts the court held (1) That the gen- eral law of Virginia had in it nothing in the nature of a contract ; (2) That the transfer of the existing rights from the vendor to the ven- dee added nothing to them.^ An executive agency, created by a statute of a State for the purpose of improving public highways, and empowered to assess the cost of its improvements upon adjoining lands, and to put up for sale, and buy in for a term of years for its own use, any such lands delinquent in the payment of the assessment, does not, by such a purchase, acquire a contract right in the land so bought which the State cannot modify without violating the provisions of the Constitu- tion of the United States. Such a transaction is matter of law and not of contract, and as such is not open to constitutional objections. Even as to third parties an assessment is not a con- tract in the sense in which the word is used in the Constitution of the United States.^ 1 WJieeling & Belmont Bridge Co. v. Belmont Bridge Co., 138 U. S. 287. 2 I^ssex Public Road Board v. Skinkle, 140 U. S. 334. XII. LIMITATIONS UPON THE POWERS OF STATES.^ Article I, Section 8, Paragraph 18. The Con- Lecture XII. gress shall have power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitu- tion in the Government of the United States, or in any Department or Officer thereof. Article I, Section 10, No State shall enter into any Treaty, Alliance, or Confederation ; grant Letters of Marque and Reprisal ; coin Money ; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts ; pass any Bill of At- tainder, ex post facto Law, or Law impairing the Obli- gation of Contracts, or grant any Title of Nobility. No State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, ex- cept 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 Treasury of the United States ; and all such Laws shall be subject to the Revision and Controul 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 invaded, or in such imminent Danger as will not admit of Delay. 1 This Lecture was Lecture X of the Lectures delivered before the classes of the University Law School. 573 574 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. Article IX of ttie Amendments. The enumera- tion in the Constitution, of certain rights, sliall not be construed to deny or disparage otliers retained by the people. Article X of the Amendments. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the State respectively, or to the people.^ oenerai consider- The Constitution of the United States may ations. i^g looked at under various views, and many classifications may be made of it, all of which tend to give clearer ideas of its scope and mean- ing. The most important arrangement and classification of its contents is into three divi- sions, which relate to the legislative, the execu- tive, and the judicial powers. I have considered the Second and Third Arti- cles of the Constitution, as they refer to the subjects of the executive and the judiciary. Another classification of its provisions may be profitably made into first, the grants of powers to the Federal Government ; second, the limita- tions upon the powers of that Government ; and third, the limitations upon the powers of the States. In order to enable you to understand more clearly these limitations, it is necessary to state a few propositions in regard to tlie general theory of the constitutional powers of the Gov- ernment of the United States. 1 The Thirteenth, Fourteenth, and Fifteenth Amendments are also bi'iefly alluded to in this lecture ; but, as they are dismissed with the remark that they are " too important to be considered at the close of a lecture," they are not placed in this headnote. In the next, and concluding paper, they are treated more at length, and will be found in that headnote. LIMITATIONS UPON TOWERS OF STATES. G75 As a general rule, governments are unlimited lecture xii. in their powers. All free g;overnuients, perliai)s K^i^t'ons'^etween ^ . . "'^ State govern- all other governments, are entitled in some shape nients and the ,1,11 J , 1 J Uniteri States. or other, to make laws, and to repeal, or amend them. This is called the legislative power of the government. There are, however, in the United States, two sets of governments, both occupying a part of the domain of the great functions of governments, including the executive, the legis- lative, and the judicial powers. The Govern- ment of the United States was created by the voluntary action of the people of the different States. When this was originally done there were thirteen States whose people united in forming the General Government called the United States of America. In doing this the States parted ^^ith all the powers of government which were thought necessary to establish that of the United States, but those which they did not thus surrender and give up to the National Government, were retained by each State as a part of its own system of political power. The powers thus ceded to the United States and parted with by the several States, are much the smaller part of the general functions of govern- ment of civil society, and it resulted that all the powers not conferred upon the United States were to remain, and did remain, with the States themselves. This purpose was so important that it was not left to the natural inference arising from the sources of its powers and the manner in which the Constitution was framed, but it is more than once referred to. and at least 576 LECTURES ON CONSTITUTIONAL LAW. lectuke XII. once expressly stated in the Constitution and IJ'^'t'T"'''''''" amendments thereto. The eighteenth chiiise of the State govern- ^ '-' ment and the the eighth section of the First Article of the Con- stitution closes the enumeration of the powers conferred upon Congress by the following lan- guage:— "The Congress shall have power ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Con- stitution in the Government of the United States, or in any department or officer thereof." Articles IX and X of the first set of amend- ments to the Constitution, made to give expres- sion to the opinion of those who were jealous of the powers of the Federal Government, still more clearly state this view. "Article IX. The enumeration in the Con- stitution 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 pro- hibited by it to the States, are reserved to the States respectively, or to the people." Section 8 of the First Article is devoted to the grant of powers to the legislative branch of the Government of the United States ; section 9 is devoted to the restrictions upon those powers, and section 10 to express limitations upon the 'powers of the States. If you will take the trouble to compare these limitations upon the powers of the States with those upon LIMITATIONS UPON POWERS OF STATES. 577 the powers of the Federal Government in the lectukk xn. preceding section, you will see tliat in niany f^^'^^f;;;;'^^;;^;;;:^" instances they are the same, and of course ment and the where that is the case they forbid entirely the exercise of the powers thus specified l)y either the National or State Governments. Such is the case in reference to the prohibition against' granting titles of nobility, and others to be found in both sections. The tenth section, to which I more especially Limitations upon invite your attention, reads as follows : — 1^° powers of the ^ _ ^ States. " Section 10. No State shall enter into any treaty, alliance, 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, ex post facto law, or law impair- ing the obligation of contracts, or grant any title of nobility. " No State shall without the consent of Con- gress, lay any imposts or duties on imports or ex- ports, 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 Treasury of the United States; and all such laws shall be subject to the revision and control of Congress. " No State shall, without the consent of Con- gress, 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 578 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. actually invaded, or in such imminent danger, I imitations upon .^^ ^^-n ^^^^^ .^^^^^-^ ^f deUlV." the powors ol tlie _ ^ States. The first of these items of prohibition, namely, Makiii"; treaties, • i i • j. i." it pi alliances, etc. agamst making treaties, alliances, or conleder- ations, granting letters of marque and reprisal, and coining money, are directed to the exercise t)f powers which are in their essential nature appropriate alone to the sovereign power of the State. No government ought to have the power of making a treaty, or alliance, or a confeder- ation with another government, unless it is in such a position of independence, and in full pos- session of all the faculties which will enable it to keep up its relations with other independent governments or to maintain a confederation or alliance with other sovereign powers. This pro- hibition was taken in substance from Article VI of the Articles of Confederation. If one of the States of the Union could have made a treaty with France or Great Britain in the early days of our Government, or could have entered into a confederation with one of those powers, it is very obvious tliat the Government of the American Union would have been a rope of sand ; temptations would have been offered by other nations to induce one or more of the States to withdraw from the Federal Union, which must in the struggle through which they passed in their early history have been success- ful. Indeed, during; Washino;ton's administra- tion, constant efforts were made by France and by Great Britain to influence the conduct of our affairs upon the idea that our Government was LIMITATIONS UPON POWERS OF STATES. 579 too weak to protect itself, and that it would be lectike xii. open to the approaches which their ambition '"^'l^'^'''^ 'reiUieB, ^ ^ '^ ^ iilliauces, etc. and interest induced them to make. The late civil war also presents an instance where, if the States which attempted to secede could, in the lawful exercise of the power to do so, have made treaty arrangements or articles of confederation with other powerful States of Europe before they attempted to separate themselves from the Union of the States, they would probably have done so with fatal effect. And what they did in the way of an allip.nce among themselves in the attempt to create a confederacy between several of the States is also expressly prohibited by the language of this section that no State shall, without the consent of Congress, " enter into any agreement with another State, or with a foreign power." It is also provided that no State shall grant Letters of marque letters of marque and reprisal. This form of ^" ""^J""'^'^- hostilities against a people and its government has almost passed out of use among the nations of the earth. A letter of marque and reprisal is defined in the following terms : " A commis- sion granted by the Government to a private individual, to take the property of a foreign State, or of the citizens or subjects of such State, as a reparation for an injury committed by such State, its citizens or subjects." ^ It was a mode of asserting a remedy for a supposed injustice, sometimes in the absence of ^ Bouvier's Law Dictionary. 580 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. actual War, and frequently in the midst of war, ^d^rrriJd*"^"^^^ a means of inducing the private citizens of other nations to engage in the spoliation of the enemy. As it is fairly one of the war powers, and as, when exercised under the authority of the State against a nation with whom the United States was not at war, it might, and al- most certainly would, lead to war against that State, it was forbidden to the States to exercise the authority to issue such commissions. It is easy to be seen that if each State of the Union were at liberty to so conduct itself toward any of the foreign nations of the world as to justify them in making war upon that State, the Federal Government must either permit such State to struggle in its own defence as best it could, or to be overrun, conquered, and subjected to the power of the hostile nation ; or else it must intervene and p'/otect the State. This latter alternative would leave the question of peace or war to the caprices and interests of a single State, a war which must involve the whole nation for the benefit of that State, with- out any control on the part of the nation over the causes which led to such a conflict. Hence, while the eighth section of this Article declares that Congress alone shall make war, the tenth section, which we are now considering, declares not only that a State shall not engage in war unless actually invaded, but to prevent the approach to such a condition of affairs refuses to the State the right to grant letters of marque and reprisal. LIMITATIONS UPON POWERS OF STATES. 581 So also in regard to the coining of money, lecture xii. . which by this chiuse is forbidden to tlie States, c<.i"i°««f ">o°ey- and which by another chiuse of the same Article is given in positive terms to the Congress of the United States, to wit, " to coin money, regulate the value thereof, and of foreign coins," This is a power, the exercise of which was in past times claimed as an attribute of sovereignty by all the semi-independent principalities of Europe. It is a sovereign power, and for wise reasons is expressly denied to the States. In the same connection and for the same rea- Legal tender, sons the States are forbidden to make anything but gold or silver coin a tender in payment of debts, or to emit bills of credit. What was meant by the phrase "bills of credit" in this buis of credit, clause of the Constitution has been the subject of very considerable discussion. The constitu- tional meaning of the phrase was perhaps best defined in the case of Craig v. State of Missouri, 4 Pet. 410, 431. In the opinion of the court, delivered by Chief Justice Marshall, he asks, " What is a bill of credit ? What did the Con- stitution mean to forbid ? " To these questions he replies in the following language : " In its enlarged, and perhaps its literal sense, the term ^ bill of credit ' may comprehend any instrument by which a State engages to pay money at a future day ; thus including a certificate given for money borrowed. But the language of the Constitution itself, and the mischief to be pre- vented, which we know from the history of our country, equally limit the interpretation of the 582 LECTURES OX CONSTITUTIONAL LAW. Lecture XII. terms. The word ' emit,' is never employed in Bills of credit, describing those contracts by which a State binds itself to pay money at a future day for services actually received, or for money bor- rowed for present use ; nor are instruments exe- cuted for such purposes, in common language, denominated ' bills of credit.' To ' emit bills of credit,' conveys to the mind the idea of issuing paper intended to circulate through the com- munity, for its ordinary purposes, as money, which paper is redeemable at a future day. This is the sense in which the terms have been always understood." He then goes into a history of the times pre- vious to and during the revolution in regard to the excessive issues of paper money, much of which was never redeemed, and shows that it was the prevention of this evil which was aimed at by this constitutional provision. Thus far, these provisions of section 10 are not among the classes of powers expressly for- bidden to the Federal Government. How far that Government may make other things beside gold and silver coin a tender in payment of debts, and how far a State may organize bank- ing corporations with the power to issue circu- lating notes, are questions of very great interest, and which have been very much discussed, with varying opinions, among the ablest and wisest statesmen and constitutional lawyers of the country. So far as the weight of judicial de- cisions may determine these questions, especially the decisions of the Supreme Court of the United LIMITATIONS UPON POWERS OF STATES. 583 States, it may be said to be settled that the lkctitre xii. Federal Government has the power to emit bills ^'"' '^^ *''"''^''- of credit in the way of circulating notes and to endow them with the capacity of being a tender in payment of debts ; and that the States have the power to create banks and banking corpora- tions with the power to issue such notes which do not depend upon the credit of the State for their value and which are not attempted to be made by the State a legal tender for debts, and that such laws are valid. It seems that the laws authorizing the States to create banks of issue are held not to violate the prohibition against emitting bills of credit, because it is not the State that emits those bills, and because for the bills thus issued the State is not responsible, as they are not issued or received on the credit of the State. In relation to some of the banks thus issuing circulating notes, in which the State owned a part of the stock but for the redemp- tion of the notes of which the State was not legally liable, a closer question was raised, but it has been decided in favor of the validity of such issues. The exercise of this power of creating a bank with power to issue circulating notes, in which although the bank assumes the nature and character of a corporation doing business in the name of trustees and directors, yet the State itself is the sole owner of the capital stock, is more doubtful and probably would not be sus- tained at this day.^ 1 See on this subject Briscoe v. Bank of the Commomcealth of Kentucky, 11 Pet. 257 ; Woodruff v. Trapnall, 10 How. ?90; Cur- ran V. Arkansas, 15 How. 304. 584 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. The prohibition agiiinst passing bills of at- Biiis of attainder, ^^-^j^^ is one which was intended to guard against a danger which has passed out of the memory of the present generation. Uj) to the time of the forination of this Constitution the Parliament of England had been in the habit by legislative enactments of declaring individuals attainted for treason, for murder, for conspiracies, and for other crimes, especially crimes against the Government. This declaration of attainder by the legislative body was accompanied, either impliedly or by the express terms of the bill, with a deprivation of all rights of property and of all capacity to transmit property by descent or acquire it in that manner, in addition to punishments such as death and other cruelties. This kind of proceeding was had, not in a court of justice, nor with a trial by jury, nor with any of the usual modes of ascertaining the guilt or innocence of the party accused, but the legisla- ture, the Parliament, either with or without in- quiry, or with such insufficient inquiry as they chose to make, generally in the absence of the victim, proceeded at once to make charges, decide upon the guilt of the party and announce the punishment, thus acting in all instances as the sovereign, the legislative, and judicial power at the same time. This was done without any regularly established mode of procedure or rules of decision. Our ancestors who had just come through the revolutionary struggle for indepen- dence, and who felt that most of them might have been subjected to this form of punishment LIMITATIONS UPON POWERS OF STATES. 585 by the Parliament of Great Britain, determined lecture xii. to eradicate this system entirely from the powers J^in^ «f ^"^'"der. confided either to the Federal Government or to the States, and hence this prohibition. There is also in this instrument, in addition to the prohibition of bills of attainder, the dec- laration in the second clause of the third section of Article III, that " no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted," which probably has reference to the fact that attainder might be a mode of punishment under a judicial sentence, but even in that case it should not work corruption of blood or extend to forfeiture of proj)erty beyond the life of the person attainted.^ Ex j)Ost facto laws, which the States are h.e.re ex pon facto forbidden to pass, are laws intended to operate ^^^^' in the way of punishing crimes, which are passed after the offence or crime for which the party is being tried was committed. It was at one time suggested that this kind of enactment, equally forbidden to the General Government and to the States, might be held to be any law which affected the rights of a person civilly or criminally after those rights had been acquired or established in accordance with existing laws. This, however, is a mistake, and the phrase " ex post facto laws " has application alone to laws which relate to crimes and criminal pro- ceedings, because it was used in that limited 1 See Cummings v. Missouri, 4 Wall. 277. laws. 586 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. sense by our English ancestors long previous to f^post/acto ^j^^ formation of the Constitution. The con- temporary accounts of its adoption show that such was the sense in which the Convention understood it. And it was because it was under- stood that it did not forbid laws " impairing the obligation of contracts," that those words were added in the same clause. This clause of the Constitution in regard to ex post facto laws was very early brought into question and came before the Supreme Court of the United States in the case of Colder v. Bull, 3 Dall. 386. Mr. Justice Chase, who seems to have spoken for the court on that occasion, although several other judges delivered separate opinions, takes a distinction between laws affect- ing civil rights, which may be retrospective, and those for the punishment of crime, which are ex post facto ; and as his definition has been frequently repeated and always with approval by the Supreme Court of the United States, and other courts, it is here quoted : '' I will state what laws I consider ex post facto laws, within the words and intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal ; and punishes such action. 2d. Every law that aggra- vates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punish- ment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal LIMITATIONS UPON POWERS OF STATES. 587 rules of evidence, and receives less, or different, lecturk xii. testimony, than the law required at the time j^^^f'"''^"''*'* of the commission of the offence, in order to convict the offender. "All these and similar laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post factor laws and retrospective laws. Every ex post facto law must necessarily be retrospective ; but every retrospective law is not an ex post facto law : the former, only, are prohibited. Every law that takes away, or impairs, rights vested, agree- able to existing laws, is retrospective, and is generally unjust, and may be oppressive; and it is a good general rule, that a law should have no retrospect : but there are cases in which laws may justly, and for the benefit of the commu- nity, and also of individuals, relate to a time antecedent to their commencement ; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. "But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law ; but only those that create, or aggravate, the crime ; or increase the punish- ment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time ; or to save time from the statutes of limitations ; or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But 588 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. JSx post facto laws. Impairing the obligation of con- such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unhiwful act law- ful, and the making an innocent action crimi- nal, and punishing it as a crime. " The expressions ' ex j^ost facto laws ' are technical ; they had Ijeen in use long before the revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The celebrated and judicious Sir William Black- stone, in his Commentaries, considers an ex post facto law precisely in the same light as I have done. His opinion is confirmed by his successor, Mr. Wooddeson, and by the author of the Fed- eralist, whom I esteem superior to both, for his extensive and accurate knowledge of the true principles of government." ^ The prohibition that the States shall pass no law impairing the obligation of contracts is one of the clauses of the Constitution which has been the subject of as much judicial considera- tion as almost any part of that instrument. I have, however, devoted an entire lecture to that subject, and shall, therefore, say very little about it now. There is no such limitation upon the power of Congress ; on the contrary, that body 1 See also on this subject the case of Watson v. Mercer, 8 Pet. 88, 110 ; Satterlee v. i}fattheicson, 2 Pet. 380 ; Kriny v. Missouri, 107 U. S. 221. During the revolutionary war, bills of attainder and ex post facto acts of confiscation, were passed to a wide extent ; and the evils resulting therefrom were supposed, in times of more cool reflection, to have outweighed any imagined good. 2 Story on Const. 237. LIMITATIONS UPON POWERS OF STATES. 589 is expressly invested with the power to pass a lectirk xii. imiform system of bankruptcy, which in its es- ^"7''^'7''" !l^f^ ^„ •J I J y oblifjatioii of con- sential nature has always been supposed to em- tracts. brace the power of releasing the bankrupt from the obligation of his contracts upon the surren- der of all his property. The contracts with the oblio-ations of which the States are forbidden to interfere by this clause have by judicial decis- ions been held to be almost all classes of contracts capable of judicial enforcement or judicial remedy, contracts of States themselves whereby they have granted for a valuable consideration rights to private parties or to corporations, such as ex- emption from taxation, rights to carry on a par- ticular kind of business, as banking powers and others. This prohibition extends without dis- tinction to implied and express contracts, and includes executory as well as executed contracts. It is not, however, directed against a violation of the contract by a party, but the declaration is that ''no State" shall jmss any law impairing the oblis^ation of contracts. In all instances in which this provision is called in question it must be in reference to a law of a State, and not to the action of its judicial or executive powers. The State as a State is not forbidden to violate contracts, Init it is forbidden to pass a laAV the effect of which is to impair their obligation.^ With these general remarks on this subject I must pass it for the present. The prohibition that the State shall not grant Titles of nobiuty. ^Railroad Company y. Bock, 4 Wall. 177, 180. 590 LECTUIiES ON CONSTITUTIONAL LAW. Lecture XII. any title of nobilitj may have had some signifi- Tities of nobility. ^^^^^ ^^ ^j^^ ^-^^^^ ^f ^j^g formation of the Con- stitution of whicJi we are not now fully sensible. It is one of that class of provisions in that in- strument by which the influence of powerful individuals and of foreign nations in the domes- tic affairs of our Government was attempted to be repelled in all the modes which its framers could devise. Thus no man in the public ser- vice was permitted to accept a present from any foreign potentate or power, or to accept a title of nobility, and no State was permitted to cre- ate or confer any such title. These things have passed very much away, and it has become such a well settled practice, in the absence of any attempt to exercise such powers for so long a period, that it has made us indifferent and thoughtless about it. But the aspiration of many of our wealthy families for social distinc- tion, by making alliances of marriage or other- wise with the members of the nobility of foreign States, leaves little doubt that, if patents of nobility could be issued, either by the States or the Federal Government, applications would be sufficiently numerous for them, whatever may be said of republican policy and of republican simplicity. Duties on imports Tlic sccoud clausc of this scction prohibits or exports. certain acts of the States unless with the con- sent of Congress. " 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 inspec- LIMITATIONS UPON POWERS OF STATES. 591 tion laws." The word " imports " here has ref- lecturk xii Duties on or exports, erence to goods miported from a foreign country, ^"'^"^'"'" "np*""^ and not to such as may be carried from one State into another.^ But a State is prohibited from taxing goods brought into it from neighboring States by that provision of section 8 of the same Article which declares that Congress shall regulate commerce among the several States.^ As no attempt is known to have been made by any of the States to levy directly or inciden- tally imposts or duties on goods imported from foreign nations we need not say much about it, except perhaps to refer to the case of Brown v. Maryland. There an attempt was made to tax goods which had been imported into Maryland from abroad, but which had not been distributed from the original packages, and it was held that such o;oods were entitled to the character of imports so long as the}^ remained in the pack- ages in which they were brought into this coun- try, but that when these packages were broken and the goods were used or offered for sale out- side of such original packages, they had become incorporated into the general property of the State, and were liable to such taxation as the State imposed on other property. The prohibi- tion in regard to duties on exports, which, by another clause, is also a limitation upon the power of the Federal Government, makes it very clear 1 Brown v. Ufanjland, 12 Wheat. 419 ; Woodruff v. Parham, 8 Wall. 123 ; Hinson v. Lott, 8 Wall. 148. 2 See Woodruff w. Parham and Ilinson v. Lott, supra. 592 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. that tliG Constitution intended that no product ^r^exports""^""'' of a State which was in the process of exporta- tion should be taxed either by a State or by the Federal Government ; in other words, that the process of exporting the products of a State, the goods, chattels, and property of the people of the several States, should not be obstructed or hindered by any burden of taxation imposed by either State or Federal authority. What is a duty on The Congress of the United States, during the exports. Y^^^ q[y[\ ^^y^Y^ imposcd a tax upon cotton and tobacco, which tax was not limited to those products when in the process of transportation, but was assessed on all the cotton and tobacco in the country. It was argued that because the larger part of these products was exported out of the country and sold to foreign nations, and because their production was limited to a particular part of the country, the tax was forbidden by the corresponding clause of the Constitution prohibiting Congress from levying a tax on exports. Although the question came at that time to the Supreme Court of the United States, it was not then decided, because of a division of opinion in that court. The recent cases, however, of Coe v. Errol, 116 U. S. 517, and Tiirpin v. Burgess, 117 U. S. 504, seem to decide that the objection was not valid, and hold that only such property as is in the actual pro- cess of exportation, and which has begun it^s voyage or its preparation for the voyage, can be said to be an export. The clause which declares that " the net LIMITATIONS UPON POWERS OF STATES. 693 produce of all duties and imposts, laid by any lecture xn. State on imports or exports, shall be for the use ^^hat is a d»ty on J- ^ ^ exports. of the treasury of the United States," and that " all such laws shall be subject to the revision and control of the Congress," needs no com- ment, as no such duties or imposts have been laid during the existence of the government. The further provision that "no State shall, Duty on tonnage, without the consent of Congress, lay any duty of tonnage," has been the subject of frequent decisions of the Supreme Court of the United States. In many instances the States have levied taxes and assessments on vessels engaged in navigation in cases where they had a right to make such assessments as on other property, but unfortunately measured the amount of it by the size of the vessel, taking her tonnage as a mode of measurement ; and, looking at the literal language of such statutes, since they impose a tax or duty of so much per ton or per hundred tons, it is apparently a tonnage tax. The question has been one of considerable diffi- culty, and the decisions are not perhaps always in accord. But it may now be taken to be the settled doctrine of the Supreme Court that only a tax which may be said to be laid for the priv- ilege of a vessel to enter a port can be held to be a tonnage tax. The prohibition against the States' levying a duty of tonnage is intended to prevent any interference with commerce with foreign nations or between one State and another, and is not intended to prevent a rightful assess- ment to secure a compensation for services ren- 694 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. clered to vessels using the waters of a State, such Dutyontouuage. ^^ ^yh^rfage and the like. The question is con- sidered and the authorities reviewed in a late case.^ It was there held that in almost all cases relied on as showing that there was a reference to the tonnage capacity of the vessel as a measure of the tax there was an absence of any service rendered for which the assessment was a compensation, and generally the tax was held to be imposed for the privilege of entering and anchoring in the port.^ Then follows the provision that no State shall, without the consent of Congress, " 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 mvaded, or in such imminent danger as will not admit of delay." These provisions need no explanation. They explain themselves. They are additional safeguards against the dangers mentioned under the first clause which we have just passed over, and are designed to incapacitate the States from making war against each other or against the General Government, or from putting themselves in a position to defy that government and overthrow its authority, with- drawing from them at the same time the power to do this successfully and discouraging the inclination to attempt it. They are prohibited from keeping troops or ships of war, thus dis- 1 Morgmi's Steamship Co. v. Lottisiana, 455. 2 See also Cannon v. New Orleans, 20 Wall. 577 ; Packet Co. v. Keokuk, 95 U. S. 80, 84. LIMITATIONS UPON POWERS OF STATES. 595 abling them from any active belligerent oper- lecture xii. ations ; nor shall they enter into any agreement ^'^^^ °° tonnage. or compact with any other State, meaning any other State of this Union, by which they are deprived of the power of co-operation in any hostile movement, either against a State or against the Federal Government ; nor shall they do this with any foreign power, which would be still more objectionable ; nor shall they for any reasons mentioned in reference to letters of marque engage in war unless actually invaded, or in such imminent dano-er as will not admit of o delay. That is to say, the only war power which a State can exercise is one of defence, when actually invaded, or in the most imminent danger of such invasion. This last clause in regard to imminent danger is perhaps best illustrated by the war^ with the Indian tribes, in which the States have been compelled to organize forces of their own to protect their inhabitants and citi- zens from the terrible onslaughts of the savages who make no proclamation of war and whose first intimation of hostilities is the destruction of women and children who are unprepared and unaware of their danger. These provisions show the skill and wisdom with which the framers of the original Constitu- tion guarded against the exercise of such powers by the States as might seriously endanger the existence of the Federal Union. The earliest amendments to that instrument, The first ten namely, the first ten, passed almost immediately a™«"<*™®°*3. after the formation of the Union, were intended 596 LECTURES ON CONSTITUTIONAL LAW. Lecture XII. The first ten amendments. The Thirteenth Amendment. The Fourteenth Amendment. to operate as restraints upon the national Gov- ernment, and represent the fears of those whose distrust of it were greater than their fears from the power of the States. This distrust contin- ued to be the prevailing sentiment of many poli- ticians of the country until the recent civil war broke out in 1861. The actual events of that war, the circumstances which led to it, and its results, impressed upon the American people the fact that the main danger to the perpetuity of our national Government was to be found in the powers exercised by the States, and several amendments to the Constitution, the Thirteenth, Fourteenth, and Fifteenth, were almost exclu- sively devoted to limitations upon such powers. These are in themselves so important that I can- not in this lecture attempt to comment upon them. It is sufficient to say that the Thirteenth abolishes slavery in all the States of the Union, its existence before that time being entirely dependent upon the laws of the several States, and it gives to Congress the power to enforce the prohibition by appropriate legislation. The Fourteenth Amendment, after defining what citi- zenship of the United States is, makes these important limitations upon the powers of the States : " No State shall make or enforce any law which shall abridge the privileges or immu- nities 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." LIMITATIONS UPON POWEKS OF STATES. 597 The Fifteenth Amendment declares that " the lfxtuke xii. right of citizens of the United States to vote Amendment' shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." These provisions of the amendments to the Constitution, adopted immediately after the close of the civil war as part of the system of recon- struction made necessary by that war, have been the subject of much discussion in the public prints, in both Houses of Congress, and of decis- ions of the Supreme Court of the United States. A moment's glance at them will show that they are too important to be considered at the close of a lecture already sufficiently long. NOTES UPON LECTURE XII. Lecture XII. This lecture closes with a reference to tlie Notes. Thirteenth, Fourteenth, and Fifteenth Amend- ments, but without discussing them. They are treated in the Supplementary Paper, No. XIII, which is devoted to the consideration of subjects not discussed elsewhere. In previous lectures, Mr. Justice Miller has referred to a class of powers which States may not exercise, because exclusively conferred upon Congress. The most prominent among these is the power to regulate commerce, which the Supreme Court, after considerable fluctuation, held, in a case in which the opinion was written by Mr. Justice Miller, to be so exclusively vested in Congress that a State could not legislate upon the subject. In the headnote, which was also prepared by him, the proposition is laid down that " a statute of a State, intended to regulate, or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages from one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress ; and such statutes are void, even 598 NOTES UPON LECTURE XII. 599 as to that part of such transaction which may lecture xii. be within the State." ' ^'''''^ While the Constitution, by the tenth section of the First Article, took away from the States the power of passing bills of attainder and ex post facto laws, by the second paragraph in the third section of the Third Article it conferred upon Congress the " power to declare the punish- ment of treason," but added : " but no attainder shall work corruption of blood, or forfeiture, except during the life of the person attamted." As pertinent to the general subject of attainder, though not to the limitation of the powers of States, I will briefly notice the action of Con- gress and of the Supreme Court in respect of this power. In 1861 Congress passed an act for the con- fiscation of property used in aid of the rebellion.^ This was followed the next year by '' an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," ^ which made provision for the seizure, judicial confiscation, and sale of the property of persons giving aid and comfort to the rebellion. The latter act was accompanied by a joint resolution of Congress, also approved by the President, in which, after referring to that act, it was said : " Nor shall any punishment or proceedings under said act be 1 Wabash, St. Louis (fc Pacific Railway Co. v. Illinois, 118 U. S. 557. 2 Act of August 6, 1861, 12 Stat. .319 c. 60. s Act of July 17, 1862, 12 Stat. 589 c. 195. coo LECTURES ON CONSTITUTIONAL LAW. Lecture XII, SO coiistrued as to work a forfeiture of the real ^^^^^' estate of the offender beyond his natural life."^ The court held that the joint resolution was intended to protect the interest of the heirs only; and that the interest of the offender in the real estate could be seized and confiscated, leavins: him without further interest or owner- ship in it.^ But in a later case it held that if the offender was pardoned, a remainder was left in him after the confiscated life estate which he could dispose of.^ 1 Joint Resolution of July 17, 1862, 12 Stat. 627, No. 63. 2 Wallach v.Van Biswick, 92 U. S. 202. « Illinois Central Sailroad Co. v. Bosworth, 133 U. S. 92. XIII. SUPPLEMENTARY: SUBJECTS NOT DIS- CUSSED ELSEWHERE. Constitution, Article I, Section 1. All legisla- Lecture XIII. tive Powers herein granted shall be vested in a Con- Supplementary, gress of the United States, which shall consist of a Senate and House of Representatives. Article I, Section 2, Paragraphs 1, 2, and .3. The House of Representatives shall be composed 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. 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. [Representatives and direct Taxes shall be appor- tioned among the several States which may be in- cluded within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, 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 L^nited States, and witliin 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 1 The portion of this clause within brackets has been amended by the Fourteenth Amendment. 601 602 SUPPLEMENTARY. Lecture XIII. at Least one Representative ; and until such enumera- Supplementary. tion shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five. South Carolina five, and Georgia three. Article I, Section 3. 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. Immediately after they shall be assembled in Con- sequence 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 second 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. Article I, Section 4, Paragraphs 1 and 2. The Times, Places and Manner of holdmg Elections for Senators and Representatives, shall be prescribed 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 chusing Sena- tors. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a dif- ferent Day. Article I, Section 5, Paragraphs 1 and 2. Each House shall be the Judge of the Elections, Re- turns 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 At- tendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Be- SUBJECTS NOT DISCUSSED ELSEWHERE. 603 haviour, and, with the Concurrence of two-thirds, Lectttre XIII. expel a Member. Supplemeutary. Article I, Section 8, Paragraph 1 to Para- graph 17. The Congress sliall have Power 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, Imposts and Excises shall be uniform throughout the United States ; To borrow Money on the credit of the United States ; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States ; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures ; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States ; To establish Post Offices and post Roads ; To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writ- ings and Discoveries ; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies com- mitted on the high Seas, and Offences against the Law of Nations ; To declare War, grant Letters of Marque and Re- prisal, and make Rules concerning Captures on Land and Water ; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; To provide and maintain a Navy ; To make Rules for the Government and Regulation of the land and naval Forces ; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ; To provide for organizing, arming, and disciplin- ing, the Militia, and for governing such Part of them as 604 SUPPLEMENTARY. Lecture XIII. may be employed in the Service of the United States, Supplementary. reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the Discipline prescribed by 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 Places purchased by the Con- sent 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. Article I, Section 9, Paragraphs 1, 2, 3, 4. The Migration or Importation of such Persons 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 ex- ceeding ten dollars for each Person. 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. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct. Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. Article II, Section 1, Paragraphs 5 and 7. 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 accordingly, until the Disability be removed, or a President shall be elected. Before he enter on the execution of his Office, he shall take the following Oath or Affirmation : — " I do solemnly swear (or affirm) that I will faith- fully 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." SUBJECTS NOT DISCUSSED ELSEWHERE. 605 Article IV, Section 1. Full Faith and Credit Lecture XITI. shall be given in each State to the public Acts, Records, Supplementary, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Man- ner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Article IV, Section 2, Paragraphs 2, 3. A Per- son charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Ci'ime. No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Ser- vice or Labour may be due. Article IV, Section 3, Paragraphs 1, 2. 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. The Congress shall have Power to dispose of and make all needful Rides 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. Article IV, Section 4. 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 Application of the Legis- lature, or of the Executive (when the Legislature can- not be convened) against domestic Violence. Article VI, Paragraphs 1, 2. All Debts con- tracted 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. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ; and 606 SUPPLEMENTARY. Lecture XIII. all Treaties made, or which shall be made, under the Supplementary. authority of the United States, shall be the supreme Law of the Land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwitlistanding. First Ameni>ment. 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 Govern- ment for a redress of grievances. Second Amendment. 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. Third Amendment. 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. Fourth Amendment. 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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Fifth Amendment. No person shall be held to answer 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 ; nor shall any person be subject for the same offence 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. Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Ninth Amendment. The enumeration in the Con- stitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Tenth Amendment. The powers not delegated to the United States by the Constitution, nor prohibited SUBJECTS NOT DISCUSSED ELSEWHERE. 607 by it to the States, are reserved to the States respec- Lecture XIII. tively or to the people. Supplementary. Thikteentii Amendment. Section 1. Neither slavery nor involuntary servitude, except as a punish- ment 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 article by appropriate legislation. Fourteenth Amendment. Section 1. All per- sons 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 person 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, excluding Indians not taxed. But when the right to vote at any election for the choice of Elec- tors 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 Legis- lature thereof, is denied to any of the male inhabi- tants of such State, being twenty-one years of age and citizens 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. No person shall be a Senator or Repre- sentative 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 Con- gress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitu- tion 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, 608 SUPPLEMENTARY. Lecture XIII. Supplementary. 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 payment of pensions and bounties for services in suppressing insurrection 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 emancipa- tion 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. Fifteenth Amendment. 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 condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. Some of the minor provisions of the Constitu- tion have not been treated by Mr. Justice Miller, or they have been touched upon only in a cur- sory way. It will be the aim of this supple- mentary paper to treat these subjects briefly, and in their order as they stand in that instru- ment. Congress : its organization and parliamentary powers. 1. Congress : its Organization and Parliamen- tary Powers. The legislative powers granted to the Union by the Constitution are, by section 1, Article I, " vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." In Lecture IV the separate powers confided SUBJECTS NOT DISCUSSED ELSEWHERE. 609 by the Constitution to the Senate and to the lecture xiii. House of Representatives respectively were fully J'"i'i''<^'"entary. '^ i. xi J Congress : its discussed. In other lectures the legislative organization and powers reposed in them jointly, as " The Senate powers.'*^"^'^'^^ and the House of Representatives of the United States of America in Congress assembled," were treated in detail ; and those which are denied to them and retained by the States were also pointed out and discussed in detail. From the opening of the Convention it was de- termined that, following the settled precedents of the English race, the power of the new legis- lative body to be created by it should be reposed in two Houses. It was not until the 25th of May, 1787, that a quorum of States was at- tained; and, as early as the 29th of that month, two projects were launched, which eventually resulted in the Constitution. The first of these was the Virginia plan in sixteen resolutions, offered by Edmund Randolph ; and the second a draft for a Constitution, presented by Charles Pinckney of South Carolina. These papers will be found 'in the Appendix. Each made pro- vision for a national legislature, to consist of two Houses ; and in each it was provided that the members of the House of Representatives should be elected by the people. The basis thus recommended for the House of The House : how Representatives was substantially adopted in ^ ^^"^^ section 2 of Article I of the Constitution, which provides that " the House of Representatives shall be composed of Members chosen every second Year by the People of the several States, 610 SUPPLEMENTARY. Lecture XIII. Supplementary. The House : how elected. Number of mem- bers. and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." As originally constituted, the House of Rep- resentatives consisted of sixty-five members, of whom the Constitution made the first apportion- ment ; but, under further provision in the same section, an enumeration or census was taken, which w^as made the basis of a new a})portion- ment. Once in each succeeding ten years, under the provisions of the same section, a new census or enumeration has been taken, and a new ap- portionment made by Congress. Under the last enumeration and apportionment ^ the House of Representatives consists of three hundred and fifty-six members, not including Delegates from the Territories. The District of Columbia also at one time enjoyed the privilege of being rep- 126 Stat. 735, c. 116. An act making an apportionment of Representatives in Congress among the several States under the Eleventh Census. Be it enacted, etc., That after the third of March, eighteen hun- dred and ninety-three, the House of Representatives shall be com- posed of three hundred and fifty-six members, to be apportioned among the several States as follows : Alabama, nine ; Arkansas, six ; California, seven ; Colorado, two ; Connecticut, four ; Dela- ware, one ; Florida, two ; Georgia, eleven ; Idaho, one ; Illinois, twenty-two ; Indiana, thirteen ; Iowa, eleven ; Kansas, eight ; Kentucky, eleven ; Louisiana, six ; Maine, four ; Maryland, six ; Massachusetts, thirteen ; Michigan, twelve ; Minnesota, seven ; Mississippi, seven ; Missouri, fifteen ; Montana, one ; Nebraska, six ; Nevada, one ; New Hampshire, two ; New Jersey, eight ; New York, thirty-four ; North Carolina, nine ; North Dakota, one ; Ohio, twenty-one ; Oregon, two ; Pennsylvania, thirty ; Rhode Island, two ; South Carolina, seven ; South Dakota, two ; Ten- nessee, ten ; Texas, thirteen ; Vermont, two ; A^irginia, ten ; Washington, two ; West Virginia, four ; Wisconsin, ten ; AVyo- ming, one. [Approved February 7, 1891.] SUBJECTS NOT DISCUSSED ELSEWHERE. Gil resented in the House as a Territory, without lecture xiu. the right of voting. But this privilege, con- ^"^'^I'^"'"';'"'^- o o r n 7 rs umber of mem- ferred at a late hour, was soon withdrawn. bers. The Senate was organized by the Constitution The Senate. on a very different basis from that thrown out in either of the programmes. It was the result of discussion and compromise. The equality of representation of the small and the large States contributed sensibly toward securing the assent of the former to the Constitution, and thus aided in bringing about the Union. The third section of Article I contains two clauses providing as follows : " The Senate of the United States shall be composed of two Senators from each State, chosen by the Legis- lature thereof, for six Years and each Senator shall have one Vote." The first of these clauses gives to the States the equality of representation which each enjoyed under the Articles of Con- federation. The second takes away the voting by States, and puts that responsibility upon each individual Senator. The same section, in another paragraph, requires that each Senator shall have attained the age of thirty years, that he shall have been nine years a citizen of the United States, and that, at the time of his elec- tion, he shall be an inhabitant of the State which he represents. The Senate is divided into three classes, as Number of mem- nearly equally as possible, so that one-third shall ^"" go out at the expiration of each Congress. The first division was made under the provisions of section 3, and as representatives from new States 612 SUPPLEMENTARY. Lecture XIII. have appeared they have successively been clas- suppiementary. ^-g^^ j^ j^^^_ ^^ -^^ inception it consistcd of Is umber 01 mem- "^ * _ ^ bers. twenty-six members. It now consists of eighty- eight members. The same section confers upon the House of Representatives the power of clioosing its Speaker and other officers, and upon the Senate the power of choosing its officers, and a President 2^^o ^^m- jwre in the absence of the Vice-President, who is made its President by the Constitution, but without a vote except when the Senate is equally divided. In practice a President j^ro tempore is usually elected, who serves in all absences of the Vice-President until he resigns or is replaced by another by vote of the Senate. How elected. Article I, section 4, provides that " The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time by Law make or alter such Regulations, except as to the places of choosing Senators." This power was first exercised in 1842.^ It had become the custom in some of the States to elect the entire State representation in the House of Representatives on a general ticket, voted upon as a whole throughout the State, thus securing a solid delegation of one political faith. To break up this custom Congress enacted that when a State was entitled to more than one member, the members should be elected by dis- 1 Act of June 25, 1842, 5 Stat. 491, c. 47. SUBJECTS NOT DISCUSSED ELSEWHERE. 613 tricts composed of contiguous territory. This Lfxtcre xitt. system hcis been since retained.^ In 1872 Con- tZ^^^!^"^' gress further provided that such elections should take place on the Tuesday next after the first Monday of November, 1876, and the like day of that month in every second year thereafter,^ which is now the law.^ It is further provided that vacancies may be filled at such times as State laws ma}^ prescribe,"* and that all elections shall be by ballot.^ The first legislation for regulating the elec- tion of Senators was in 1866.® The statute then enacted is practically codified in the Re- vised Statutes.^ The legislature of each State chosen next preceding the expiration of the time for which any Senator was elected to represent the State in Congress, is on the second Tuesday after its meeting and organization, to elect a Senator in the manner pointed out by that act. Provisions are also made for filling vacancies. Congress is required to assemble at least Day of meeting once in eacli year on the first Monday in D^- °^ *^^°^'^^®^* cember, unless it appoints by law a different day. In 1867 it was enacted that there should be a meeting of the Fortieth Congress and of each succeeding Congress on the day on which 1 Acts of August 30, 1856, 11 Stat. 150, c. 30 ; July 14, 1862, 12 Stat. 572, c. 170 ; March 11, 1868, 15 Stat. 41, c. 25 ; February 2, 1872, 17 Stat. 28, c. 11; Rev. Stat. § 23. 2 Act of February 2, 1872, 17 Stat. 28, c. 11. 8 Rev. Stat. § 25. * lb. § 26. 5 ib. § 27. 6 Act of July 25, 1866, 14 Stat. 243, c. 245. 7 Rev. Stat. §§ 14-19. 614 SUPPLEMENTARY. Lecture XIII. Suppleineiitury. Day of meeting of Congress. Paragraph 2, section 5. the term begins for which the Congress is elected (March 4) ; ^ but this act was repealed in 1871.- The House is the judge of the election re- turns and qualifications of its own members. A majority constitutes a quorum, but a less num- ber may adjourn from day to day.^ The second paragraph of section 5 confers upon each House the power " to determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member." We have already seen, in the comments on Kilbourn V. Thoin])8on^ ante, 412, that the House, not being a judicial body, cannot convict for con- tempt, and cannot punish persons wdio are not members. The opinion in that case was written by Mr. Justice Miller. It practically overruled Anderson v. Dunn!' The other provisions in that section are, that each House shall keep a journal, which shall be made public unless, in its judgment, secrecy is required ; that the yeas and nays may be called for by one-fifth of the members present, and that neither House, without the consent of the 1 Act of January 22, 1867, 14 Stat. 378, c. 10. 2 Act of April 20, 1871, 14 Stat. 12, c. 21, § 30. 8 Rule XV, paragraph 3. "On the demand of any member, or at the suggestion of tlie Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business." * 103 U. S. 168. 6 6 Wheat. 204. SUBJECTS NOT DISCUSSED ELSEWHERE. GL other, shall adjourn for more than three days, i.fxtuuk xiii. or to any other place than that in which the «"i'Pit-.nentary. "J A i'arafrrapli 2, two Houses shall be sitting. sections. Section 6 relates to the compensation and Section «. privileges of members. The former is to be deteruiined by law, and the latter includes privi- lege from arrest ^ in all cases except treason, felony, and breach of the peace during attend- ance at a session of Congress, going there and returning thence ; and also exemption from being questioned elsewhere for speeches in de- bate. It also provides that no member can hold an office created or of which the emoluments were increased during the time for which he was elected, and that no person can hold an office under the United States, and be at the same time a member of either House of Con- gress. 2. Powers conferred on Congress hy Article I, Section 8. A. Power to enact Bankrupt Laws. Article I, section 8, conferring on Congress Bankruptcy, power "to establish . . . uniform laws on the subject of Bankruptcies throughout the United States " was added to the draft of the Constitu- tion as late as September 1, 1787, and on Monday, the 3d September, it was adopted, Connecticut alone voting in the negative. Mr. Sherman of Connecticut gave as the reason for his opposition " that bankruptcies w^ere, in some 1 See Cox v. McClenachan, 3 Dall. 478. 616 SUPPLEMENTARY. Lecture XIII. Supplementary. Bankruptcy. cases punishable with death by the laws of England, and he did not choose to grant a power by which that might be done here." The power to enact a bankrupt law was first exercised in 1800.^ In 1803 that law was repealed.^ In 1841^ it was again exercised by an act which w^as repealed in 1843."^ It was again exercised in 1867 ^ by an act which, after being several times amended,*^ was finally repealed in 1878.^ The grant of this power to Congress does not divest the several States of the right to enact insolvent laws in the nature of bankrupt laws, both voluntary and involuntary, and to provide for the settlement of estates of insolvent persons by process of law, the distribution of their pro- ceeds and the discharge of the debtors ; but such exercise of power by a State is subject to be suspended by the enactment of a bankrupt law by Congress, and will remain suspended so long as such a law is in force ; and a discharge so obtained through State proceedings does not operate upon the claim of a citizen of another State who has not proved his debt.^ 1 Act of April 4, 1800, 2 Stat. 19, c. 19. 2 Act of December 19, 1803, 2 Stat. 248, c. 6. 3 Act of August 19, 1841, 5 Stat. 440, c. 9. 4 Act of March 3, 1843, 5 Stat. 614, c. 82. 6 Act of March 2, 1867, 14 Stat. 517, c. 176. 6 Act of July 27, 1868, 15 Stat. 227, c. 258 ; Act of February 13, 1873, 17 Stat. 436, c. 135 ; Act of March 3, 1873, 17 Stat. 509, c. 226, § 4 ; Act of June 8, 1872, 17 Stat. 334, c. 339 ; Act of March 3, 1873, 17 Stat. 577, c. 235 ; Act of June 22, 1874, 18 Stat. 178, c. 390 ; Act of July 26, 1876, 19 Stat. 102, c. 234. T Act of June 7, 1878, 20 Stat. 99, c. 160. 8 Boese v. King, 108 U. S. 379; Baldwin v. Hale, 1 Wall. 223. SUBJECTS NOT DISCUSSED ELSEWHERE. 617 B. CobuKje: liilh of Credit: Weiyhts and Measures. Mr. Pinckney's draft proposed to confer upon lecture xiil Congress the •' power to borrow money and emit cXagr^^^'^' bills of credit," the power " to coin money and regulate the value of all coins," and the power " to fix the standard of weights and measures." In the discussions the power " to emit bills of credit " was stricken out by a vote of nine States to two. Otherwise, with some change of lan- guage, these powers were placed by the Conven- tion in the Constitution. That draft also contained a clause forbidding: Bills of credit. States to emit bills of credit. The Constitution, as completed, goes beyond this. It provides that " No State shall . . . coin money, emit bills of credit," etc. The people of the United States had greatly suffered from the over-issues of bills of credit having the character of legal tender, by the States, and the Convention made it clear that the power to make such issues in the future was to be taken away from them, as well as the power to coin money. ^ The authority to fix the standard of weights weights and and measures has been exercised by Congress °^^''^^"''®^- only partially. It has provided a standard troy pound for the regulation of the coinage,^ and it has authorized the use of the metric system throughout the United States.^ Otherwise each State regulates this subject for itself. 1 See ante, pp. 138, 139. 2 Rev. Stat. § 3548. 3 Rev. Stat. §§ 3569, 3570. 618 SUPPLEMENTARY. Lecture XIII. Supplementary. C^nuterfeitiug. C. Punishment for Counterfeiting. The Constitution further confers upon Con- gress the power '•• to provide for the punishment of counterfeiting the securities and current coin of the United States." It is held that tliis grant of power does not prevent a State from enacting laws to punish counterfeiting ; and that, being bound to protect to other nations rights secured to them by the law of nations, Congress has the power to enact laws punishing the counterfeiting of foreign securities.^ Post-office and Post-roads. D. Post-office and Post-roads. Section 8, paragraph 7, confers power to "es- tablish Post-offices and Post-roads." Mr. Pinck- ney's draft proposed to confer authority " to establish post-offices," without conferring any power over the means of maintaining communi- cation between them. The essential words " and post-roads," under which the mail service of the country is carried on, were added during the discussion. Post routes are established by law, and the compensation for carriage over them fixed in the same way. And when a part of an established route is found to be impracticable, by reason of being almost or quite impassable, the Post-office Department may change that part without thereby creating a new route, not authorized by law.^ In one notable case Congress practically ter- 1 United States v. Arjona, 120 U. S. 479. 2 United States v. Barlow, 132 U. S. 271. I SUBJECTS NOT DISCUSSED ELSEWHERE. G19 minated an important suit in equity by the lecture xiii. exercise of this power. ^ The State of Virginia, p"^'J!oi™crau7 having authorized a corporation to construct a I'ost-roads. bridge across the Ohio River at Wheeling, the State of Pennsylvania filed a bill in equity in the Supreme Court of the United States to enjoin its construction, upon the ground that it was an unconstitutional obstruction of a navigable river. As a result of proceedings, which are reported in several volumes of Howard, a writ of injunc- tion issued from that court in June, 1854. Counsel then brought to the attention of the court that, in the Post-office Appropriation Act of 1852,^ the bridge in controversy had been declared to be a lawful structure, and to be an *' established post-road for the passage of the mails of the United States." The court said : " So far as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they are to be regarded • as modified by this subsequent legislation ; and, although it may still be an obstruction in fact, is not so in the contemplation of law. . . . We do not enter upon the question whether or not Congress possesses the power under the authority in the Constitution to establish ' post-offices and post-roads,' to legalize this bridge ; for, conced- ing that no such powers can be derived from this clause, it must be admitted that it is, at least, necessarily included in the power con- 1 Fennsijlvania v. mieeling and Belmont Bridge Co., 9 How. 647; 11 How. 528 ; 13 How. 518 ; 18 How. 421. 2 Act of August 31, 1852, 10 Stat. 110, 112, c. Ill, §§ 6, 7, 620 SUPPLEMENTARY. 1>KCTURE XIII. Supplementary. Post-office and Post-roads. Copyrights. ferred to regulate commerce among the several States." ^ E. Copyright, Patents and Trade Marks. Article I, section 8, paragraph 8. "To pro- mote the progress of Science and useful Arts, by securing for limited Times to authors and In- ventors the exclusive Right to their respective Writings and Discoveries." In regard to copy- rights, Congress early exercised the power thus conferred,^ and still does so. It is held that an author's right of property in his published works exists only under the provisions of the statutes thus enacted.^ The Act of March 3, 1891, amending the Revised Statutes, authorizes a copyright to be granted to a foreigner; but it provides in sec- tion 13 that " this act shall only apply to a citi- zen or subject of a foreign state or nation, when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its 1 Pennsylvania v. WJieeling and Belmont Bridge Co., 18 How. 421, 430. 2 Act of May 31, 1790, 1 Stat. 124, c. 15 ; Act of April 29, 1802, 2 Stat. 171, c. 36 ; Act of February 3, 1831, 4 Stat. 436, c. 16; Act of August 10, 1846, 9 Stat. 106, c. 178, § 10 ; Act of March 3, 1855, 10 Stat. 685, c. 199, § 5; Act of August 18, 1858, 11 Stat. 138, c. 169 ; Act of February 5, 1859, 11 Stat. 380, c. 22, § 8 ; Act of February 18, 1867, 14 Stat. 395, c. 43 ; Act of July 8, 1870, 16 Stat. 198, c. 230, §§ 85-110 ; Rev. Stat. §§ 4948-4071 ; Act of June 18, 1874, 18 Stat. 78, c. 301 ; Act of March 3, 1879, 20 Stat. 359, c. 180, § 15 ; Act of August 1, 1882, 22 Stat. 181, c. 366. 3 WheatonY. Peters, 8 Pet. 591. See al.so Banks v. Manchester, 128 U. S. 244 ; Callaghan v. Myers, 128 U. S. 617 ; and Burroio-GUes Lithographic Co. v. Sarony, 111 U. S. 53. SUBJECTS NOT DISCUSSED ELSEWHERE. G21 own citizens ; or when such foreign state or lf.ctuue xiii. nation is a party to an international a£!;reement ^"ppi«"'en»ary ^'- "^ "^ Lopy rights. which provides for reciprocity in tlie granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a part}^ to such agreement." ^ Legislation was also had upon the subject of Patents, patents for inventions in the First Congress. The act was entitled " An act to promote the progress of useful arts." ^ As in the case of copyrights, etc., so here, after changes and amend- ments, the statutes were consolidated in 1871* into one statute which embraced the three sub- jects of Patents, Copyrights and Trade Marks, and from thence was codified into the Revised Statutes.^ The law as thus codified has been since amended.^ It has been held, over and over again, that unless a machine is novel, and unless it called for the inventive faculty to produce it, as dis- tinguished from what existed before it, it is not patentable. It is also held that the discovery that a force of nature can be applied to a useful result is not patentable, unless some practicable way is pointed out for its application.^ The subject of trade marks is now classified Trade marks, with copyrights and patents in the legislation of 1 26 Stat. 1100, c. 565. 2 Act of April 10, 1890, 1 Stat. 109, c. 7. 3 Act of July 8, 1870, 10 Stat. 198, c. 230, §§ 1-76. 4 Revised Stat. §§ 4883-4930. 5 Act of February 4, 1887, 24 Stat. 387, c. 105. « O'Reilly v. Morse, 15 How. 62 ; The Telephone Cases, 126 U. S. 1. G22 SUPPLEMENTARY. Lecture XIII. Supplementary. Trade marks. Congress, already referred to, subsequent to 1869. In the Trade Mark Cases,^ which were decided at October Term, 1879, this legislation was before the Supreme Court, and it was held that a trade mark being " neither an invention, a discovery, nor a writing, within the meaning of the eighth clause of the eighth section of the First Article of the Constitution, and the legisla- tion respecting it not being limited to the use of trade marks in ' commerce with foreign nations and among the several States, and with the Indian tribes,' " it was " void for want of con- stitutional authority." But, although the right of property in it might not have been derived from legislation of Congress under its constitutional powers, it was clear, and was so held, that the right to such property had long been recognized by the common law and by the Chancery courts of England. Congress at once legislated under the powers conferred u^ion it by the commerce clause of the Constitution.^ The title to such property is now sustained when the person who asserts ownership in it shows a just claim to protection.^ F. Piracies^ and Felonies on the High Seas. Piracy, etc. Article I, scction 8, paragraph 10, authorizes Congress " to define and punish Piracies and 1 Trade Mark Cases, 100 U. S. 82, 92. 2 Act of March 3, 1881, 21 Stat. 502, c. 138; Act of August 5, 1882, 22 Stat. 298, c. 393. 3 Canal Co. v. Clark, 13 Wall. 311; Menendez v. Holt, 128 U. S. 514 ; Corbin v. Goidd, 133 U. S. 308 ; Liggett and Myers Tobacco Co. V. Fimer, 128 U. S. 514. SUBJECTS NOT DISCUSSED ELSEWHERE. G23 Felonies committed on the high Seas, and LEm'RK xtti. Offences against the Law of Nations." The p-",';,^Jy'"'j"*'^'^^' Articles of Confederation conferred power " to appoint courts for the trial of piracies and fel- onies committed on the high seas." The Vir- ginia draft extended this power by providing that Congress might " declare the law and pun- ishment of piracies and felonies at sea ; " and the Constitution, as adopted, adds to those " of- fences against the law of nations." A foreign vessel, " by assuming a piratical character, is no longer included in the description of a foreign vessel ; " and the vessel, if the piratical act be committed " in an open road, may well be found by a jury to be on the seas." ^ The provisions in the Act of Congress of Au- gust 18, 1856, codified in Title 72 of the Revised Statutes, which authorize the President to declare guano islands to be " appertaining to the United States, and which provide that crimes and offences committed on such islands shall be deemed to have been done or committed on the high seas on board a merchant ship or vessel belonging to the United States, and be punished according to the laws of the United States relat- ing to such ships or vessels and offences on the high seas," was lately before the Supreme Court for construction. It was held that that act did " not assume to extend the admiralty jurisdic- tion over land, but merely extends the provisions of the statutes of the United States for the pun- 1 United States v. TJie Pirates, 5 Wheat. 184, 198, 200^ 624 SUPPLEMENTARY. Lecture XIII. ishment of offencGs upon the higli seas to like Supplementary, ^f^gj^j^gg ^^^q^ cruano islands, wliicli the President Piracy, etc. ^ o ' has determined should be considered as apper- taining to the United States ;" and that a person charged with the offence of " murder committed on a guano island, which has been determined by the President to appertain to the United States, may be tried in the courts of the United States for the district into which the offender is first brought." ^ G. The National Defence. National defence. Article I, scction 8, paragraphs 11, 12, 13, 14, 15, and 16 conferred upon Congress power " to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; to provide and maintain a Navy ; to make Rules for the Government and Regulation of the land and naval Forces ; to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ; to provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed 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." 1 Jones V. United States, 137 U. S. 202. SUBJECTS NOT DISCUSSED ELSEWHERE. 625 These provisions relating to tlie means of lecture xhl national defence and self-protection are simple, ^atfonar'defence. and the most natural division of powers in a Federal Government. The provision as to appropriations for paying the land forces was not in eitlun- draft. It was put in hy the Con- vention, undoubtedly prompted by the same jealousy of executive power which had estab- lished a similar custom in Great Britain. The Pinckney draft gave the United States power " to subdue a rebellion in any State on applica- tion of its legislature, and to call forth the aid of the militia," not only "to execute the laws of the Union," '• enforce treaties," and " repel inva- sions," but also " to suppress insurrections." In the w^ar of 1812 the right of the President to order State militia to duty outside the State was denied by the State of Massachusetts ; but, in the much greater war of the rebellion, the militia of most of the Northern States was more than once ordered on duty outside of its o^vn State, and responded without question or hesitation. The power over the militia thus reserved to the States is so complete that a State may, unless restrained by its own constitution, enact laws to prevent any body of men whatever, other than the regularly organized volunteer militia of the State, and the troops of the United States, from associatino; themselves toQ;ether as a mili- tary company or organization, or to drill or parade with arms in any place within the State, without the consent of the governor of the State.^ 1 Presser v. Illinois, 116 U. S. 262. G26 SUPPLEMENTARY. Lecture XIII. The power to declare war, and thus make NSfon^dSence. ^ctive use of the other powers necessary, found its place in the Constitution from necessity. There could be no sovereignty without it. But the necessity for such active use can be made equally necessary by a declaration of war against the United States, as in the case of the war with Mexico, or by an active war against it, as in the war of the rebellion. A state of war does not change the relation of a citizen to his government, or displace the civil authorities outside the theatre of conflict ;^ what it may do there depends upon the circum- stances and exigencies of the case.^ H. llie District of Columbia. District of Coium- Article I, section 8, paragraph 17, authorizes ^^^' Congress " to exercise exclusive Legrislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Con- gress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Maga- zines, Arsenals, Dock Yards and other needful Buildings." Under this authority the cession of the Dis- trict of Columbia was made to the United States 1 Ex parte MiUigan, 4 Wall. 2. 2 Mitchtl V. Harmony, 13 How. 115. SUBJECTS NOT DISCUSSED ELSEWHERE. 627 by the States of Maryland and Virginia.^ The lecture xiii. portion ceded by Virginia was subsequently ^jj;^;5'Jj;'^7^^^^ retroceded to that State.^ The local laws of bia. each State existing at the time of the cession remained in force, so far as they affected rights of property, and except as changed by Congress.' The municipal forms of government in the sev- eral municipalities also continued, except as changed by Congress. For a short time a Terri- torial government was put in operation in the District,* but this was soon discontinued,^ and the District is now only a municipal corporation.^ A most competent authority has questioned the power of Congress to delegate the legislative authority once acquired through this clause of the Constitution.^ 3. Restrictions in Sectio7i 9 upon the Power of Congress. A. The African Slave Trade. Article I, section 9. This section is entirely slave trade, taken up with statements of what Congress may not do. All the important provisions in it have 1 Act of July 16, 1700, 1 Stat. 130, c. 28; Act of March 3, 1791, 1 Stat. 214, c. 17; Proclamation of President Washington, January 24, 1791, 11 Stat. 751. 2 Act of July 9, 1840, 9 Stat. 35, c. 35; President Polk's procla- mation of September 7-, 184G, 9 Stat. 1000. 3 Thaw V. Ritchie, 136 U. S. 519. * Act of February 21, 1871, 16 Stat. 419, c. 62. 6 Act of June 20, 1874, 18 Stat. 116, c. 337. 6 Metropolitan Bailroad Co. v. District of Cohimhia, 132 U. S. See Geofroy v. Rujgs, 133 U. S. 258. ' Cooley's Principles of Constitutional Law, 90, 91. 628 SUPPLEMENTARY. Lecture XIII. Supplementary. Slave trade. been treated by Mr. Justice Miller. It only remains to notice a few of the less important ones. Paragraph 1 provides that " The Migra- tion of Importation of such Persons 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." This is a euphonious way of referring' to the African slave trade, and it was a settlement by compromise of a question which caused some trouble in the Convention. The capitation tax was never imposed ; and, on the 2d of March, 1807, Congress prohibited the im- portation of slaves into any port or place within the jurisdiction of the United States from and after January 1, 1808.^ B. Direct Taxes. Direct taxes. Paragraph 4. "No Capitation, or other direct Tax, shall be laid, unless in Proportion to the Census or Enumeration hereinbefore di- rected to be taken." It has been held by the Supreme Court, in construing this clause of the Constitution, that " only capitation taxes as expressed in that instrument, and taxes on real estate" are direct taxes.^ The same authority has settled that a carriage tax,^ or an income 1 Act of March 2, 1807, 2 Stat. 426, c. 22. 2 Springer v. United States, 102 U. S. 586. 3 HyltoH V. United States, 8 Dall. 171. SUBJECTS NOT DISCUSSED ELSEWHERE. G29 tax/ or a tax on the circulation of banks," or an lfxture xni. internal revenue license tax,^ is not a direct tax ^"i'P'c'n«"''i'"y- ' Direct taxes- witliin the meaning of the Constitution. In *1861 Congress resorted to this mode of taxa- tion, and enacted " that a direct tax of twenty millions of dollars be, and is hereby, annually laid upon the United States ;* but in 1862, after one such tax had been assessexl, it was sus- pended until April 1, 1865.' And in 1864 it was suspended until Congress should enact an- other law requiring it.'' No such law was Enacted ; and during the late session of Congress the sums collected under the act of 1861 were restored to the States which paid them J 4. Article II. The President. Section 1, paragraph 5. This paragraph con- succession on the fers upon the Vice-President the powers and ^^^^^ "^ * ^^^^ functions of the President, in case of his removal, death, resignation, or inability. It was called into play four times during the first century of the Government — twice in consequence of the assassination of the President. The paragraph also authorizes Congress to declare what officer shall act as President in case of the removal, etc., of both President and Vice-President. The 1 PacAfic Insttrance Co. v. Soule, 7 Wall. 433. 2 Veazie Bank v. Fenno, 8 Wall. 533. 3 License Tax Cases, 5 Wall. 4G2. * Act of August 5, 1861, 12 Stat. c. 45, § 8, p. 294. 6 Act of July 1, 1802, 12 Stat. c. 110, § 119, p. 489. « Act of June 30, 1864, 13 Stat. c. 173, § 173, p. 304. 7 Act of March 2, 1891, 26 Stat. 822, c. 49G. 630 SUPPLEMENTARY. Lecture xiii. latest action of Congress in this matter confers Supi.iementary ^j^g power and dutv in such case, first upon the Succession on the -t^ -^ ' -i deatii of a Piesi- Secretary of State ; then upon the Secretary of the Treasury ; then upon the Secretary of War ; then upon the Attorney General ; then upon the Postmaster General ; then upon the Secretary of the Navy ; and, lastly, upon the Secretary of the Interior.^ In the time of Washington the Secretary of State, then called Secretary for Foreign Affairs, was the ranking officer of the Cabinet. The others ranked ac- cording to the creation of the department over which each j)resided. Jefferson followed this rule in all the departments, thus giving the Secretary of State the ranking place. The rule has beeii steadily adhered to since, until Congress, for some unknown reason, gave to the Attorney General and the Postmaster General precedence over the Secretary of the Navy in this statute. Oath of office. Paragraph 7 of this section relates to the oath of office to be taken by the President. This is usually taken in front of the Capitol, and in the presence of both Houses of Congress. In President Hayes's case, however, as the fourth of March fell upon Sunday, it was deemed wise, in view of the peculiar circumstances, to have it also administered at the Executive Mansion in advance of its administration at the Capitol on the fifth of March. 1 Act of January 19, 1886, 24 Stat. 1, c. 4. SUBJECTS NOT DISCUSSED ELSEWHERE. 631 5. Article IV. Interstate relations and duties. The Territories. Repuhlican form of Govern- ment. Article III, relating to judicial power, has lecture xiii. been fully treated by Mr. Justice Miller in Lec- tures VII and VIII, leaving nothing furtber to be said. We will confine ourselves therefore to Article IV. A. Judicial Proceedinga and Public Acts and Records of a State. Section 1 . " Full Faith and Credit shall be They are to have given in each State to the Public Acts, Records, credit"in' other and judicial Proceedings of every other State." states. It was held in a recent case, following a long line of decisions, that this " does not preclude inquiry into the jurisdiction of the court, in which a judgment is rendered over tbe subject matter or the parties affected by it, nor into the facts necessary to give such jurisdiction." ^ In a still more recent case ^ the matter came up in a novel form, the question being whether a judg- ment in a State court which was not responsive to the pleadings, rendered against a defendant who appeared, but took no part in the subsequent litigation which ended in the judgment, estopped him from contesting the matter on the merits » in an action brought in another State. The court held that he was not estopped, and, in the course of its opinion, delivered by Mr. Justice Brewer, said : " The section of the Federal Con- ^ Simmojis v. Saul, 138 U. S. 439. 2 Reynolds v. Stockton, 140 U. S. 254. credit in otlier States. 032 SUPPLEMENTARY. Lecture XIII. stitiitlon whlcli is iiivoked by plaintiffs is sec- suppie.nentary. ^-^^^ ^ ^f Article IV, wliicli puovides that ' full lliey are to have _ -^ _ full faitii ami faitli aiid Credit shall be given in each State to the public acts, records, and judicial proceed- ings of every otlier State.' Under that section the full faith and credit demanded is only that faith and credit which the judicial proceedings had in the other State in and of themselves require. It does not demand that a judgment rendered in a court of one State, without the jurisdiction of the person, shall be recognized by the courts of another State as valid, or that a judgment rendered by a court which has juris- diction of the person, but which is in no way responsive to the issues tendered by the plead- ings and is rendered in the actual absence of the defendant, must be recognized as valid in the courts of any other State. The requirements of that section are fulfilled when a judgment ren- dered in a court of one State, which has jurisdic- tion of the subject matter and of the person, and which is substantially responsive to the issues presented by the pleadings, or is rendered under such circumstances that it is apparent that the defeated party was in fact heard on the matter determined, is recognized and enforced in the courts of another State. The scope of this con- stitutional provision has often been presented to and considered by this court, although the precise question here presented has not as yet received its attention. It has been adjudged that the constitutional provision does not make a judgment rendered in one State a judgment in SUBJECTS NOT DISCUSSED ELSEWHERE. G.j3 another State upon which execution or other lecture xni. process may issue; that it does not foibid i^. ;';"i'i>>«'"entary. , , 1 'icy are to bavo quiry in the courts of the State to which the I'lii faith and judgment is presented, as to the jurisdiction of ^'^'^^gg'""'*^" the court in which it was rendered over tlie per- son, or in respect to the subject matter, or, if rendered in a proceeding m rem, its jurisdiction of the ?T.s'. Without referring to the many cases in which this constitutional ])rovision has been before tliis court, it is enough to notice the case of ThompsoH v. Wliitinan, 18 Wall. 457. The view developed in the opinion in that case, as well as in prior opinions cited therein, paves the way for inquiry into the question here pre- sented. If the fact of a judgment rendered in a court of one State does not preclude inquiry in the courts of another, as to the jurisdiction of the court rendering the judgment over the person or the subject matter, it certainly also does not preclude inquiry as to whether the judgment so rendered was so far responsive to the issues tendered by the pleadings as to be a proper exercise of jurisdiction on the part of the court rendering it." Another recent case^ is instructive. One Bird, a citizen of Massachusetts, suspended pay- ment March 2, 1885, Aaron Claflin & Co., a New York firm, being largely indebted to him. Butler, Hayden & Co., a Boston firm, citizens of Massachusetts, had a claim against Bird which, on the 6th of March they assigned to Fayer- 1 Cole V. Cnnniiujham, 133 U. S. 107. 634 SUPPLEMENTARY. Lecture XIII. weather, a citizen of New York. On the 11th of Supplementary. ]yj.^j.(.|^ Faverweather broiiolit an action as such Ihey are to have '^ '-' full faith and assigncc against Bird as defendant, and Aarou states.*^ ^ ^^ Claflin & Co. as garnishees, to recover the amount of the assigned claim. On the 25th of March another similar suit was commenced by Fayer- weather. The court found that these suits "were brought in a court of competent jurisdiction, and the attachments and proceedings were regular and in conformity with the laws of New York." Subsequent to the commencement of these suits proceedings were had against Bird under the insolvent laws of Massachusetts, and on the 1st of June, 1885, assignees were duly appointed, to whom the insolvent's property was assigned. It was stated by the court in its opinion that " under these insolvent laws all preferences were avoided, and all attachments in favor of partic- ular creditors dissolved." On the 19th of June, 1885, the assignees filed a bill in equity in the Supreme Court of Massachusetts, to restrain Butler, Hayden & Co. from prosecuting the New York suits to judgment and to compel them to transfer to the assignees all the rights assigned to Fayerweather. The State court rendered the decree prayed for by the assignees ; and that judgment being brought to the Supreme Court of the United States by writ of error, was affirmed by a major- ity of the court. The opinion of the court was delivered by Chief Justice Fuller, who, in an opinion review- ing the authorities, said : — SUBJECTS NOT DISCUSSED ELSEAVHERE. 635 "The question to be detennined is, whether a lecture xiii. decree of the Supreme Judicial Court of Massa- ^"I'pi^'"'^"*'^- A ihiiy are to have chusetts, restraining citizens of that Common- fnn faith and wealth from the prosecution of attachment suits states. in New York, brought by them for the purpose of evading the laws of their domicil, should be reversed upon tlie ground that such judicial action in Massachusetts was in violation of Ar- ticle IV, sections 1 and 2, of the Constitution of the United States. . . . The Constitution did not mean to confer any new power upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of the States domestic judgments to all intents and purposes, but only gave a gen- eral validity, faith, and credit to them as evi- dence. No execution can be issued upon such judgments without a new suit in the tribunals of other States, and they enjoy, not the right of priority or privilege or lien which they have in the State where they are pronounced, but that only which the lex fori gives to them by its own laws, in their character of foreign judgments. . . . Great contrariety of State decision exists upon this general topic, and it may be fairly stated that, as between citizens of the State of the forum and the assignee appointed under the laws of another State, the claim of the former will be held superior to that of the latter by the courts of the former ; while, as between the assignee and citizens of his own State and the State of the debtor, the laws of such State will credit in other States. 636 SUrPLEMENTARY. Lecture XIII. Ordinarily be applied in the State of the litiga- Suppiementary. ^-^^ miless forbiddeii by, or inconsistent with, They are to have ^ _ ^ full faith and the laws or policy of the latter. ... In the case at bar the attachment suits have not gone to judgment, and the assignees in insolvency have proceeded with due diligence as against these creditors, citizens of Massachusetts, who are seeking to evade the laws of their own State ; nor is there anything in the law or pol- icy of New York opposed to the law or policy of Massachusetts in the premises." Mr. Justice Miller delivered a dissenting opin- ion in which Mr. Justice Field and Mr. Justice Harlan concurred. He said : " The record in- troduced from the court of New York in this case had the effect, in that State, to give Butler, Hayden & Co. a lien on the indebtedness of Aaron Claflin & Co. to their creditor. Bird, which in that court w^ould have ripened into a judgment and been enforced. That was the faith and credit which the laws of New York gave to that proceeding, . . . and there Avas no power in the courts of Massachusetts to inter- rupt the course of these proceedings to the final result. . . . When, therefore, Butler, Hayden & Co. were sued in equity in the courts of Massa- chusetts, and there was produced the record of these proceedings in the court of New York, the question was presented to the courts of Massa- chusetts what effect they would give to those proceedings. They did not give the effect which the laws of New York gave to them. ... It is no answer to this to say that Butler, Hayden & SUBJECTS NOT DISCUSSED ELSEWHERE. G37 Co. Avere citizens of Massachusetts, and were lecture xiii. found within its jurisdiction. The higher law IZT^roTZ.e of the Constitution of the United States places fuii faith and this restraint upon the courts of Massachusetts stltla'" ^ ^ in dealing even with her own citizens, and if her citizens have obtained rights in the courts of New York which have become a part of the records and judicial proceedings of those courts, no matter how the law under which those rights may be established may be opposed to the law of the State of Massachusetts, they are to be respected by the courts of Massachusetts because they are effectual over the parties and subject matter in New York, and because the Constitu- tion of the United States and the Act of Con- gress of May 26, 1790,^ assert the principle that the courts of Massachusetts must give full credit, by which is meant the same effect to the pro- ceedings in New York, which that State gives to them." B. Surrender of Fugitives from Justice. Article IV, section 2, paragraph 2, providing Fugitives from for the surrender of fugitives from justice, is J"^*^'^^- found in the Articles of Confederation in sub- stantially the same language. The legislation of Congress upon this subject will be found in sections 5278, 5279, of the Revised Statutes. The responsibility of determining whether the person demanded is a fugitive from the justice of the demanding State, rests with the Executive of the State or Territory in which the accused is 1 1 Stat. 122, c. 11. Rev. Stat. § 905. 638 SUPPLEMENTARY. JjEctuue XIII. Supplementary. Fugitives from justice. found.^ The case of the demanding State should be presented in some official form ; either by official copy of an indictment, or by a complaint under oath. The right to demand surrender and the obligation to comply with the demand extend to all crimes and offences made punish- able by the laws of the State where the offence was committed ; but if the Governor of the State in which the accused is found refuses to surrender him, he cannot, through the judiciary department, be compelled to deliver him up.^ C. Fugitive Slaves. Fugitive slaves. Article IV, section 2, paragraph 3, of the same section provides for the surrender of fugi- tive slaves, and other persons " held to Service or Labor in one State, under the Laws thereof, escaping into another." It was taken from the proviso in the Sixth Article of the Ordi- nance of 1787 for the government of the North- west Territory,^ passed in Congress while the Convention was sitting. D. The Territories. The Territories. Article IV, section 3, paragraph 2, respecting the power of Congress over the Territories, was carefully considered in a late case, and it was held that this power is general and plenary, arising from the right to acquire them. This right arises from the power of the Government 1 Ex parte Reggel, 114 U. S. 642. 2 Kentucky v. Dennison, 24 How. 66. 8 Eev. Stat. 2d ed. p. 16. SUBJECTS NOT DISCUSSED ELSEWHERE. 639 to declare war and make treaties of peace, and lecturk xiii Supplementary The Territories in part from the power to make all needful rules ^^"pi' *^'"*'"^'*'"> ■ and regulations respecting the Territory or other property of the United States. This plenary power extends to the acts of the legislatures of the Territories.^ In the case relating to the guano islands, already referred to,^ it was held that "by the law of nations, when citizens or subjects of one nation, in its name and by its authority, or with its assent, take and hold actual, continuous, and useful possession of territory unoccupied by any other government or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired;" and that "courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the gov- ernment whose laws they administer, or of its recognition or denial of the sovereignty of a for- eign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings;" and, further, that "the island of Navassa, in the Caribbean Sea, must, by reason of the action of the President," " be considered as appertaining to the United States." E. Guaranty of a Republican Form of Government. Article IV, section 4. " The United States Republican form shall guarantee to every State in this Union a ° so^^'^°'"^° 1 Mormon Church v. United States, 136 U. S. 1. 2 Jones V. United States, 137 U. S. 202. 640 SUPPLEMENTARY. Lecture XIII. Republican Form of Government." No such Supplementary. pj-Qyisiou was in tlic Articles of Confederation. Republican loiin i of government. It first appeared in the Virginia plan, of which it formed the eleventh resolution. A recent case, Chief Justice Fuller delivering the opinion, commented upon this as follows : "By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legis- lative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves ; but while the people are thus the source of political power, their govern- ments, National and State, have been limited by written constitutions, and they have them- selves thereby set bounds to their own power, as against the sudden impulses of mere majorities. " In Luther v. Borden, 7 How. 1, it was held that the question which of the two opposing governments of Rhode Island, namely, the charter government or the government estab- lished by a voluntary convention, was the legit- imate one, was a question for the determination of the political department, and when that department had decided, the courts were bound to take notice of the decision and follow it ; and also that, as the Supreme Court of Rhode Island, holding constitutional avithority not in dispute, had decided the point, the well-settled rule applied that the courts of the United States SUBJECTS NOT DISCUSSED ELSEWHERE. 041 adopt and follow the decisions of the State lecture xih. courts on questions which concern merely tlu; ^"i'pi'""""ti^'-y- ^ "^ lifpublic-aii form constitution and laws of the State. Mr. Web- of government, ster's argument in that case took a wider sweep and contained a masterly statement of the American system of government, as recognizing that the people are the source of all political power, but that as the exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised by repre- sentatives of the people ; that the basis of rep- resentation is suif rage ; that the right of suffrage must be protected and its exercise prescribed by previous law, and the results ascertained by some certain rule ; that through its regulated exercise each man's power tells in the Constitu- tion of the Government and in the enactment of laws ; that the people limit themselves in regard to the qualifications of electors and the qualifica- tions of the elected, and to certain forms for the conduct of elections ; that our liberty is the lib- erty secured by the regular action of popular power, taking place and ascertained in accord- ance with legal and authentic modes ; and that the Constitution and laws do not proceed on the ground of revolution or any right of revolution, but on the idea of results achieved by orderly action under the authority of existing govern- ments, proceedings outside of which are not contemplated by our institutions. Webster's Works, vol. 6, p. 217." ' 1 In re Duncan, Petitioner, 139 U. S. 449, 46L G42 SUPPLEMENTARY. J.e«ti;re XIII. Supplementary. Ameudmeuts. 6. Article V. Amendments to the Constitution. This article makes no provision for the with- drawal of its ratification by a State which has ratified the amendment, the withdrawal taking place before the necessary assent of three-fourths of the States is secured. In the case of the Fourteenth Amendment there were some States which rejected the amendment and subsequently ratified it. Their votes were counted in making the necessary three-fourths. There were other States (New Jersey and Ohio) which ratified it and with- drew the ratification before the result was ob- tained. The votes of all were counted in making up the necessary two-thirds required by the Constitution. In the case of the Fifteenth Amendment, one State attempted to withdraw its assent ; but it was immaterial whether it was counted or not, as there were sufficient ratifying States without it. The subject is considered further in connection with those amendments. Article VI. Debts of the United States, premacy of the Constitution. Su- A. Revoliitlonar)/ Debt of the United States. Revolutionary Paragraph 1 provides for the assumption by state's '^ "' ^^ ^'^^^ ^^^^ Government of the existing debt of the old Government. This was done by an early act of Congress, in which, after reciting that "justice and the support of public credit require that provision should be made for fulfilling the 1 SUBJECTS NOT DISCUSSED ELSEWHERE. 643 engagements of the United States in respect to lectuue xiii. their forein^n debt, and for funding: their domes- ^"PP)'-"'"L'"''^'"y- *-■ _ _ " Kevoliitioiiary tic debt upon equitable and satisfactory terms," debt of the United legislative provisions were enacted which re- ^^^®^" stored confidence and credit, and inspired faith in the new Government. In a later section in the act, after reciting that " whereas a provision for the debts of the respective States by the United States, would be greatly conducive to an orderly, economical, and effectual arrangement of the public finances," a loan of $21,500,000 was proposed to the different States, to assist them in restoring their credit.^ B. The Constitution the Supreme Law. Article VI, paragraph 2. "This Constitu- Supremacy of the tion, and the Laws of the United States, which Constitution. 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." It is elementary that a State statute, in conflict with a law of Congress upon a subject about which Congress may constitutionally legislate, is void. So, too, a State statute is void if it relates to a subject which is vested exclusively in Congress by the 1 Act of August 4, 1790, 1 Stat. 138, c. 34. See also Act of Au- gust 10, 1790, 1 Stat. 180, c. 39 ; Act of August 12, 1790, 1 Stat. 186, c. 47 ; Act of December 27, 1790, 1 Stat. 188, c. 1 ; Act of May 8, 1792, 1 Stat. 281, c. 38; Act of March 2, 1793, 1 Stat. 338, c. 26; Act of May 30, 1794, 1 Stat. 370, c. 36; Act of January 28, 1795, 1 Stat. 410, c. 13 ; Act of February 19, 1796, 1 Stat. 448, c. 2 ; Act of March 3, 1797, 1 Stat. 516, c. 25. Gi4 SUPPLEMENTARY. Lecture XIII. Constitution.'' A treaty, although its obliga- Suppieinciitary. ^j^j^g [j^ resraid to the other party to it remain Supremacy of the ^ *=> i. j Constitution. in force, is, as a part of the supreme law of the land, subject to be revoked or modified as to its municipal operation, by act of Congress, like any other law.^ The first ten amendments. 8. The First Ten Amendments. The first Congress proposed at its first session, in the manner prescribed by Article V of the Constitution, twelve amendments for the consid- eration of the several States. Ten of these were ratified by the States as shown in the margin.^ The two which were never ratified are also printed in the margin.* The ratified articles ^ Head Money Cases, 112 U. S. 580 ; Wabash, St. Louis & Pa- cific Railway Co. v. Illinois, 118 U. S. 557. 2 Head Money Cases, 112 U. S. 580. 3 By New Jersey, 20th November, 1789 ; by Maryland, 19th December, 1789; by North Carolina, 22d December, 1789; by South Carolina, 19th January, 1790 ; by New Hampshire, 25th January, 1790 ; by Delaware, 28th January, 1790 ; by Pennsylva- nia, 10th March, 1790 ; by New York, 27th March, 1790 ; by Rhode Island, 15th June, 1790 ; by Vermont, ^d November, 1791 ; by Vir- ginia, 15th December, 1791. * Article the First. After the first enumeration required by the First Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Con- gress, that there shall not be less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. Article Second. No law, varying the compensation for the ser- vices of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. SUBJECTS NOT DISCUSSED ELSEWHERE. 645 are known as the first ten amendments, and le( tluk xiii. have been repeatedly held to he restraints upon !j.,'^-J',."'''''''"'^* the power of Congress, and not restraints upon iimeudiLeiits. the power of the States. A. Amendment I. This amendment provides that " Congress shall First Amendment, make no law respecting an establishment of re- ligion or prohibiting the free exercise thereof," etc. In deciding the Mormon Cases, the Supreme Court held that the pretence of a religious belief in polygamy could not deprive Congress of the power to prohibit it, as well as all other open offences, against the enlightened sentiment of mankind.^ B. Amendment II. " A well regulated Militia, being necessary to second Amend- the security of a free State, the right of the ™^"** people to bear Arms shall not be infringed." This provision is a limitation only on the powder of Congress, and not upon the power of the States ; and, unless restrained by their own con- stitutions. State legislatures may enact statutes to control and regulate all organizations, drilling and parading of military bodies and associa- tions, except those which are authorized by the militia laws of the United States.^ 1 Hfornion Church v. United States, 136 U. S. 1. See also Reynolds v. United States, 98 U. S. 145 ; Murphy v. Bamsey, 114 U. S. 15. 2 Presser v. Illinois, 110 U. S. 252. 646 SUPPLEMENTARY. Lecture XIII. Supplemeutary. Third Amend- ment. Fourth Amend- ment. Fifth Amend- ment. C. Amendment HI. " No Soldier shall, in time of peace, be quar- tered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." This amendment seems to have been thought necessar}^ It does not appear to have been the subject of judicial exposition ; and it is so thoroughly in accord with all our ideas, that further comment is unnecessary. D. Amendments IV and V. " The right of the people to be secure in their persons, houses, papers, and effects, against un- reasonable 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." " No person shall be held to answer 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 ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal case to be a wit- ness 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." SUBJECTS NOT DISCUSSED ELSEWHERE. 647 These two aniendments were considered lectukk xiii. together by the Supreme Court in a recent ^Tl'''"""'"'!''^- case,^ in which a section of an act to amend the meut. customs revenue laws,^ which authorized a court of the United States, in revenue cases, on motion of the attorney for the Government, to require the defendant to produce in court his private books, invoices, and papers, or else the allega- tions of the Government be taken as confessed, was brought before it for construction. The court gave the case a careful considera- tion, and, in deciding it, delivered an oj)inion which may be read with profit. The substance of the decision was, that these provisions were repugnant both to the Fourth and Fifth Amend- ments to the Constitution. As to the Fourth Amendment, it was held that no actual entry upon premises, and physi- cal search for and seizure of papers, was neces- sary in order to constitute an unreasonable search and seizure within the meaning of that amendment ; that a compulsory production of them, to be used against their owner in a crimi- nal or penal proceeding, or for a forfeiture, was within the spirit and meaning of that amend- ment; and that it was equivalent to a compul- sory production of papers, to make their non- production a confession of the allegations which it was pretended they would prove. As to the Fifth Amendment, it was held that 1 Boyd V. The United States, 116 U. S. 616. 2 Act of June 22, 1874, c. 391, 18 Stat. 186. 648 SUPPLEMENTARY. ]>KCTURE XIII. Supplementary. Fifth Amend- ment. a proceeding to forfeit a person's goods for an offence against the law, though civil in form, and whether in rem or m j^e^^sonam was in fact a criminal case within the meaning of the pro- vision in that amendment, that '' no person shall be compelled, in any criminal case, to be a wit- ness against himself ; " and that the seizure or compulsory production of a man's private papers, to be used in evidence against him, was equiva- lent to compelling him to be a witness against himself, and, in a prosecution for a crime, pen- alty, or forfeiture, was within the prohibition of that amendment. As to both amendments, it was held that they related to the personal security of the citizen ; that they nearly run into and mutually throw light upon each other ; that when the thing for- bidden in the Fifth Amendment — the compel- ling a man to be a witness against himself — is the object of a search and seizure of his private papers, it is an " unreasonable search and seizure," within the meaning of the Fourth Amendment ; and that, as a rule, " constitu- tional provisions for the security of person and property should be liberally construed." E. Amendments VI and VII. Sixth and Seventh The Sixtli Amendment relates to jury trials Amendments. -^ criminal cascs, and the Seventh Amendment to jury trials in suits at the common law, where the value in controversy shall exceed twenty dollars. Both have been fully considered. SUBJECTS NOT DISCUSSED ELSEWHERE. G49 F. Amendment VIII. " Excessive bail sliall not be required, nor lecture xiii. excessive fines imposed, nor cruel and unusual J"PP''''n'="*ary. punisliments inflicted." These provisions apply ment. to National and not to State legislation.^ In Kemmlers Case,^ where an attempt was made to convince the court that execution by the application of an electric current was a " cruel and unusual punishment within the in- tent of the Eighth Amendment," the court said : " The provision in reference to cruel and un- usual punishments was taken from the well- known Act of Parliament of 1688, entitled 'An act declaring the rights and liberties of the subject, and settling the succession of the crown ; ' in which, after rehearsing various grounds of grievance, and, among others, that excessive bail hath been required of persons committed in criminal cases, to elude the benefits of the laws made for the liberty of the subject ; and excessive fines have been im- posed ; and illegal and cruel punishments inflicted. This Declaration of Risrhts had reference to the acts of the executive and judicial departments of the government of Eng- land ; but the language in question, as used in the constitution of the State of New York, was intended particularly to operate upon the legis- lature of the State, to whose control the punish- ment of crime was almost entirely confided. So that, if the punishment prescribed for an 1 Pervear v. Cominon wealth, 5 Wall. 475. 2 136 u. S. 436. 650 SUPPLEMENTARY. Lecture XIII. Supplementary. Eighth Ameud- meut. Ninth Amend- ment. offence against the laws of the State were mani- festly cruel and unreasonable, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitu- tional prohibition. And we think this equally true of the Eighth Amendment, in its applica- tion to Congress." G. Amendment IX. " The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This principle of construction is manifestly just, and would doubtless have obtained, even if it had not been inserted in the Constitution. Tenth Amend- ment. H. Amendment X. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec- tively or to the people." The old Articles of Confederation presented this princi^Dle of con- struction in a much broader shape. Article II provided that " Each State retains its sov- ereignty, freedom, and independence, and every power, jurisdiction, and right which is not, by this confederation, expressly delegated to the United States in Congress assembled." As originally adopted the Constitution contained no equivalent for this canon of construction. The Tenth Amendment was intended to serve as a compromise between the two extreme SUBJECTS NOT DISCUSSED ELSEWHERE. G51 views. It will be observed that the controlling lectuuk xiii. word, " expressly," found in the Articles of Con- xe[|[I' Aiiierrd^ federation, is omitted in the amendment. Al- ment. though the advocates of State's rights did not fail to contend that the two were substantial equivalents, notwithstanding the omission, their views were never adopted by the judicial de- partment, and it may now be said to be well settled that Congress, under the operation of the eighteenth paragraph of section 8, Article I, which authorizes it "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers," has by impli- cation every power necessary and proper for fully carrying into execution the powers ex- pressly conferred.^ One of the latest expres- sions of the court on this point is as follows : " A constitution, establishing a frame of govern- ment, declaring fundamental principles, and creating a national sovereignty, and intended to endure for ages, and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract. The Constitution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national legislature ; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution." 1 McCuUoch V. Maryland, 4 Wheat. 316. 652 SUPPLEMENTARY. i.KcTiTRK XIII. Commenting upon tlie eighteentli paragraph of Supplementary, gg^tion 8, lust cited, tliG court Continued : " By I onth Ameud- . mciii. the settled construction and the only reasonable interpretation of this clause, the words ' neces- sary and proper' are not limited to such measures as are absolutely and indispensably- necessary, without which the powers granted must fail of execution ; but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which, in the judgment of Congress, will most advantageously effect it." And, referring to McCiiUoch V. Marylcmd, the court said: "The rule of interpretation thus laid down has been constantly adhered to and acted on by this COlH't." ^ 9. The Eleventh Amendment. Eleventh Amend- This amendment, which relates to suits against ™^°'' States, has been already fully considered both in the lectures, and in the notes upon them. Chishohn v. Georgia,^ was the direct and impell- ing cause for it. The States came out from the war of the revolution burdened with debt. Although Congress had made provision for tak- ing care of a part of that debt, a large amount was still outstanding. When they learned that a State could be sued in the Federal courts, they hurried to make that an impossibility thereafter, Massachusetts taking the lead. The Eleventh Amendment, which effected that result, was 1 Legal Tender Case, 110 U. S. 421, 439, 440, 441. 2 2 Dall. 419. SUBJECTS NOT DISCUSSED ELSEWHERE. 653 proposed by Congress March 5, 1794, and was lecture xiil proclaimed January 8, 1798. It is a little ;;;';'j;;;;;;;;^^7^,. remarkable that the decision which made it ment. necessary should have been practically overruled nearly a hundred years after it was niade.^ 10. The Iwclfth Amendment. This amendment grew out of the trouble in Twelfth Amend- the election of Mr. Jefferson as President. It "^^"*" was proposed by Congress to the legislatures of the several States December 12, 1803, and was proclaimed as adopted September 25, 1804. 11. The Thirteenth, Fourteenth, and Fifteenth Amendments. All these amendments were the outcome of Thirteenth, Four- the war and of the Reconstruction which fol- pTf teen th" a mend- lowed it. The Thirteenth was proposed to the ments. States by Congress by joint resolution dated February 1, 1865, before the close of the war, and was promulgated by the Secretary of State pursuant to law, as a part of the Constitution, December 18, 1865, having received the assent of the legislatures of twenty-seven States, being three-fourths of the States, thirty-six in all.^ The Fourteenth Amendment was submitted by Congress to the States June 16, 1866,^ after the majority in that body and President John- son had separated on the question of reconstruc- tion. Mr. Seward, the Secretary of State, issued 1 Hans V. Louisiana, 134 U. S. 1. 2 gge 13 Stat. 774, 775. 8 14 Stat. 358 ; Joint Resolution No. 48. 654 SUrPLEMENTARY. Lecture XIII. two promulgations of tliis amendment. The supplementary. ^^^^ ^^.^^ ^|.^^g^ j^jl 20, 1868.1 j^ recited that I he Fourteenth ^ ' Amendment how no law " cxpressly or by conclusive implication, "^^^^ ^ ■ authorizes the Secretary of State to determine and decide doubtful questions as to the authen- ticity of the organization of State legislatures, or as to the power of any State legislature to recall a previous act or resolution of ratification of any amendment proposed to the Constitution." It then further recited that the assent of Arkan- sas, Florida, North Carolina, Louisiana, South Carolina, and Alabama had been given " by newly constituted and newly established bodies, avow- ing themselves to l^e and acting as the legisla- tures respectively" of those States; and that the assent of Ohio and New Jersey, once given, had been withdrawn by subsequent resolutions of their legislatures, and that it was " deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid, and there- fore inelfectual for withdrawing the consent of the said two St-ates." The document closed by saying that '' if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining of full force and effect, . . . then the aforesaid amendment has been ratified." This document, issued on the 20th of June, 1868, was not accompanied by the order of pub- lication required by the Act of April 20, 1818.^ 1 15 Stat. 706; Proclamation No. 11. 2 3 Stat. 439, c. 80, § 2. SUBJECTS NOT DISCUSSED ELSEWHERE. 655 On the next day, July 21, 1868, Congress, by LKfTtiiK xnt. a ioint resolution, resolved : ' " Whereas the leer- «"ppif' n.'ntary. islatures of the States of ... New Jersey . . . Ain.Tidment how Ohio . . . Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana [nam- ing twenty-nine States, including the Southern States su23posed doubtful, and the Northern States which attempted to withdraw their ratifications] have ratified the Fourteenth Article of Amend- ment, . . . therefore Resolved . . . that said Fourteenth Article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State." This seemed to solve Mr. Seward's doubts. On the 28th of July, 1868, he issued a second proclamation,^ ordering the amendment published in the newspapers, and certifying that it had " been adopted" and that it had " become valid to all intents and purposes as a part of the Con- stitution of the United States." Since then many cases have been before the Supreme Court, involving the construction of this article ; but in no one has any question been raised as to its rati- fication and incorporation into the Constitution. In the case of the Fifteenth Amendment, the legislature of New York in 1870 attempted to withdraw the ratification given by its predecessor in 1869. The Secretary of State, Mr. Fish, in proclaiming the adoption of the amendment, said : " It appears from an offi^cial document on 1 15 Stat. 709. 2 15 Stat. 708. ratirtt'd. Ameiulment re lates to slavery. 656 SUPPLEMENTARY. lectukk XIII. file that the legislature of the State of New sui)i.ienuMtaiy. York has since passed resolutions clainiint? to I he Fourteenth ... . . Amendment how withdraw the Said ratification." ^ In this case it would have made no difference in the result if the withdrawal had been treated as valid. A. The TJiirteenth Amendment. Thirteenth Tliis amendment relates entirely to slavery and involuntary servitude (which it abolishes) ; and, although by its reflex action, it establishes universal freedom in the United States, and Congress may probably pass laws directly en- forcing its provisions, yet such legislative power extends only to the subject of slavery and its incidents ; and the denial of equal accommo- dations in inns, public conveyances, and places of public amusement (which is forbidden by the sections in question), imposes no badge of slav- ery or involuntary servitude upon the party, but at most, infringes rights which are protected from State aggression by the Fourteenth Amendment.^ Mr. Justice Miller, in his opinion in the Slaughter House Cases, from which he quotes at length in Lecture VIII, makes this clear. In the headnote to that case, in the structure of which his hand is apparent, it is said of the three amendments which followed the war, that the main purpose of all was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the 1 16 Stat. 1131. '-2 Civil Rights Cases, 109 U. S. 3. SUBJECTS NOT DISCUSSED ELSEWHERE. 657 oppressions of the white men who had formerly lkcturk xiii. 111,1 • 1 Suppleiiientary. held them m slavery. ^ Thirteenth While the Thirteenth Article of Amendment Amendment re- was intended primarily to aholish African slav- ery, it equally forbids Mexican peonage or the Chinese coolie trade, when they amount to slavery or involuntary servitude ; and the use of the word " servitude " is intended to prohibit all forms of involuntary slavery of whatever class or name.^ So, too, its effect is limited to matters subse- is limited to mat- quent to its adoption. A contract for the sale j;'-!^^';|;j;^^^^^^^^ of a slave made before the Avar, was enforced in the courts after the adoption of this amend- ment ; ^ and in another, and very recent case, a surviving partner, in possession of slaves and using them on the partnership plantation during the war, was held accountable for the value of their services.^ The first and second sections of the Civil Rights Act of March 1, 1875, are unconstitu- tional enactments as applied to the several States, not being authorized either by the Thir- teenth or Fourteenth Amendments.* B. The Fourteenth Amendment. This amendment is a much larger matter. The Fourteenth (1) It relates to citizenship: and (2) to the priv- Amendment. ileges and immunities of citizens. (3) It im- 1 Slaughter House Cases, 16 Wall. 36. 2 Osborn v. Nicholson, 13 Wall. 654. 8 Clay V. Field, 138 U. S. 464. * Civil Eights Cases, 109 U. S. 3. 658 SUPPLEMENTARY. Lecture XIII. poses limitations upon State power. (4) It deals Swe<^!ui ^^^^^^ ^^^^ apportionment of representation. (5) Aniendiueiit. It exclucles Certain classes of persons from the General consider- . j. ,• ti*i ••! i/r»\ ^tiojjs exercise oi certain political privileges: and (0) it forbids the invalidating of the public deljt of the United States, or the assumption of any debt incurred in aid of the rebellion or any claim for the loss or emancipation of slaves. I shall attempt to classify the leading cases under these heads. Before doing this some general propo- sitions, decided by the Supreme Court, should be stated, which are applicable to all. That amendment was ordained to secure equal rights to all persons. To render its purpose effectual, Congress is vested with power to en- force its provisions by appropriate legislation. Such legislation must act, not upon the abstract thing denominated a State, but upon the persons who are its agents in the denial of the rights which were intended to be secured. Such is the Act of March 1, 1875, and it is fully author- ized by the Constitution.^ On the other hand, it was not designed to interfere with the power of a State to protect the lives, liberty, and property of its citizens, nor with the exercise of that power in the adjudications of the courts of the State in administering the process provided by its laws. Therefore, when a person accused of crime within a State is subjected, like all other per- sons in the State, to the law in its regular course 1 Ex parte Virginia, 100 U. S. 339. SUBJECTS NOT DISCUSSED ELSEWHERE. 659 of administration in courts of justice, the judg- lecture xiii. ment so arrived at cannot be held to be an unre- J"i'i'''''"*'"''"'y- (jeiier:il consider- strained and arbitrary exercise of power, and inions. therefore void.^ Nor can a State be deemed guilty of violating its obligations under the Constitution because its highest court, while acting within its juris- diction, decides erroneously.^ In the Civil Rights Cases^ it is held that this amendment is prohiljitory upon the States only, and that the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and re- dressing the effects of such laws or acts. Nor does this amendment impair in any way the police power of the States, nor limit the subjects in relation to which it may be exercised for the protection of its citizens.'* A municipal ordinance prohibiting from wash- ing and ironing in public laundries and wash- houses, within defined territorial limits, from ten o'clock at night to six in the morning, is a purely police regulation, within the competency of a municipality possessed of the ordinary powers.* 1 In re Converse, 137 U. S. 624. « lb. » Civil Rights Cases, 109 U. S. 3. * Barhier v. Connullij, 113 U. S. 27; Soon Hing v. Crowley, 113U. S. 703. ^ Barhier v. Connolly , 113 U. S. 27; see also Powell v. Penn- sylvania, 127 U. S. G78. 660 SUPPLEMENTARY. Lkcture XIII. Supplementary. General consider- ations. The guarantees of protection extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, color, or nationality ;^ and to corporations.^ It was not intended by it to compel the States to adopt an iron rule of equal taxation.^ Rights of citizen- ship. 1. Citizenship. The Fourteenth Amendment did not radi- cally change the whole theory of the relations of the State and Federal Governments to each other, and of both governments to the people. The same person may be at the same time a citizen of the United States and a citizen of the State.^ The right to practice law in the State courts is not a privilege or immunity of a citizen of the United States, within the meaning of the first section of the Fourteenth Article of Amendment of the Constitution of the United States. The power of a State to prescribe the qualifications for admission to the bar of its own courts is unaffected by that amendment, and the courts cannot inquire into the reasonableness or pro- priety of the rules it may prescribe.^ The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amend- 1 Yick Wo. V. Hopkins, 118 U. S. 356. 2 Santa Clara County v. SotUhern Pacific Railroad, 118 U. S. 394. ' Bell Gap Bailroad Co. v. Pfnmsylvania, 134 U. S. 232. * In re Kemmler, 136 U. S. 436, 448. * Bradwell v. The State, 16 Wall. 130. SUBJECTS NOT DISCUSSED ELSEWHERE. G61 ment, and tliat amendment does not add to lecture xin. these privilet^es and inimiuiities. It simply fur- ;;"Pif' "«"'=*;y- i o 1 »/ Kij^hts of citizen- nislies additional guaranty for the protection of ship, such as the citizen already had. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States ; nor was it at the time of the adoption of the Constitution. Neither the Constitution nor the Fourteenth Amendment made all citi- zens voters. A provision in a State Constitu- tion which confines the right of voting to male citizens of the United States, " is no violation of the Federal Constitution. In such a State women have no riaht to vote." ^ o The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws ; but it adds noth- ing; to the risfhts of one citizen as ao:ainst another. It simply furnishes an additional guaranty against' any encroachment by the States upon the fundamental rights which be- long to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was origi- nally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guaran- tees, but no more. The power of the National 1 Minor v. Happersett, 21 Wall. 162. 662 SUPPLEMENTARY. Lecture XIII. Government is limited to the enforcement of Supplementary. ^|^j^ auarantv.' Rijjlits of citizen- o J ship. An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the Government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a State, but who has not been naturalized, or taxed, or recognized as a citizen, either by the United States or by the State, is not a citizen of the United States, within the meaning of the first section of the Fourteenth Article of Amend- ment of the Constitution.^ The provision in the Fourteenth Amendment that " no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," does not pre- vent a State from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immuni- ties as citizens of the United States.^ Those subjects of the Emperor of China who have the right to temporarily or permanently reside within the United States, are entitled to enjoy the protection guaranteed by the Consti- tution and afforded by the laws."* Corporations are persons within the meaning of the clauses of the Fourteenth Amendment to 1 United States v. Cruikshank, 92 U. S. 542. 2 Elk V. Wilkins, 112 U. S. 94. 8 Presscr v. Illinois, 116 U. S. 252. * Yick Wo V. Hopkins, 118 U. S. 356. SUBJECTS NOT DISCUSSED ELSEWHERE. 66o the Constitution concerning the deprivation of lkctirk xni. property, and concerning the equal protection of Ki''15^ts"f '.'mz^.n the laws.^ ship. 2. Privileges and Immunities of Citizens. The privileges and immunities of citizens of Privileges and the United States, as distincruished from the *"l"^"""'"^ '^'''^^ . . ... . '^ Still I- iii;;y not privileges and immunities of citizens of the take away. States, are, indeed, protected by this amend- ment ; but those are privileges and immunities arising out of the nature and essential character of the National Government, and granted or se- cured by the Constitution of the United States.^ A trial by jury in suits at common law pend- ing in the State courts is not a privilege or im- munity of national citizenship, which the States are forbidden Ry the Fourteenth Amendment of the Constitution to abridge.^ 3. Limitations upon State Poioers. The article provides that "no State shall Limitations upon make or enforce any law which shall abridge gt^te '"^'^'' '** * the privileges or immunities of citizens of the United States." That limitation we have al- ready considered. It further provides : " 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." On these pro- hibitions there are many decisions. ^ Santa Clara County v. Southern Pacific Bailroad, 118 U. S. 394, and Pemlnna Mining Co. v. Pennsylvania, 125 U. S. 181. 2 In re Kcmmler. 136 U. S. 43H, 448. 8 Walker V. Sauvinet, 92 U. S. 90. CG4 SUrrLEMENTARY. I.ECTUKE Xlll. Siippleiiieiitary. I.iinilatioii.s upon tlie powers of a State. Due process of law defined. Fourteenth Aniendnient. limitations upon the powers of a State. In a very late case it was held, on careful consideration of a statute of California, providing for the widening of a street in San Francisco, that it provided due process of law for takiiig the property necessary for that purpose ; and that mere errors in the administration of a State statute which was not repugnant to the Consti- tution, would not authorize the court to hold that the State had deprived, or was about to de- prive a party of his property without due pro- cess of law.^ Law, in its regular course of administration through the courts of law, is due process of law, and, when it is secured by the law of the State, the requirements of the Fourteenth Amendment are satisfied. Due process of law, within the meaning of that amendment, is secured, if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.^ When a person accused of crime within a State is subjected, like all other persons in the State, to the law in its regular course of admin- istration in the courts of justice, the judgments so arrived at cannot be held to be such an un- restrained and arbitrary exercise of power as to be utterly void.^ The section of the act entitled " An act to protect all citizens in their civil and legal rights," approved March 1, 1875, 18 Stat. 335, c. 114, 1 Lent V. Tillson, 140 U. S. 316. 2 Leeper v. Texas, 139 U. S. 712. 8 In re Converse, 137 U. S. 624. SUBJECTS NOT DJSCUSSED ELSEWHERE. 005 which enacts that " no citizen, possessing all lkctikk xiii. other qualifications which are or niav be pre- ^,"i''''"'"';;"'''-y- scribed by law, shall be dis(]ualifie(l from s(n'vice Am.-n.imeiit. 1 I'l • • i f ,1 TT •■ 1 l.iiiiilalioMS Upon as grand or petit juror m any court ot tlie United u.e powers of a States, or of any State on account of race, color, state, or previous condition of servitude ; and any officer or other person, charged with any duty in the se- lection or summoning of jurors, who shall ex- clude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than ^5000," was examined and held author- ized by the Thirteenth and Fourteenth Amend- ments of the Constitution. The inhibition contained in the Fourteenth Amendment means that no agency of the State, or of the officers or agents by whom her powers are exerted, shall deny to any person within her jurisdiction the equal protection of the laws. Whoever by virtue of his public position under a State government deprives another of life, liberty, or property, without due process of law, or denies or takes away the equal protection of the laws, violates that inhibition, and as he acts in the name of and for the State, and is clothed with her power, his act is her act. Otherwise the inhibition has no meaning, and the State has clothed one of her agents with power to annul or evade it.^ The State of Louisiana passed an act entitled "An act to regulate proceedings in contestation between persons claiming a judicial office." 1 Ex parte Virginia, 100 U. S. 339. 666 SUPPLEMENTARY. lkctttre XIII. Held, that the State, by proceedings under this Supplementary. ^ which resulted iu a iudg-ment adverse to the Fourteenth ' ... Amendment. title of the plaintiff ill error to a certain judicial Jiirp^TwlTofr office, did not, through her judiciary, violate state. that clause of the Fourteenth Amendment to the Constitution of the United States which de- clares, " nor shall any State deprive any person of life, liberty, or property, without due process of law." ^ Down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular ; it simply prevents the States from doing that which will operate as such deprivation.^ A law authorizing the imposition of a tax or assessment upon property according to its value does not infringe that provision of the Four- teenth Amendment to the Constitution, which declares that no State shall deprive any person of property without due process of law, if the owner has an opportunity to question the valid- ity or the amount of it, either before that amount is determined, or in subsequent proceed- ings for its collection.^ A statute of a State, authorizing any person 1 Kennard v. Louisiana, 92 U. S. 480. 2 ]\iunn V. Illinois, 94 U. S. li;3. * Hagar v. Reclamation District, ill U. S. 701. SUBJECTS NOT DISCUSSED ELSEWHERE. 0G7 to erect and maintain on his own land a water- LFXTunK xiii. Supplementary mill and mill-dam upon and across any stream p„!„.j,.,,„t til not navigable, paying to the owners of lands Ameiidment. , . . ,. . , , Limitations \ipon flowed damages assessed in a judicial proceed- n,^, powers of a ing, does not deprive them of their property ^^^*«- without due process of law, in violation of the Fourteenth Amendment.^ An act making water rates a charge upon lands in a municipality, prior to the lien of all incumbrances, does no violation, so far as it affects mortcrag-es on such lands made after the passage of the act, to that portion of the Fourteenth Amendment to the Constitution which declares that no State shall deprive any person of property without due process of law.^ The statute of New Jersey of March 8, 1871, providing for the drainage of any tract of low or marshy land within the State, upon proceed- ings instituted by at least five owners of sepa- rate lots of land included in the tract, and for the assessment by commissioners, after notice and hearing, of the expenses upon all the owners, does not deprive them of their property without due process of law, nor deny to them the equal protection of the laws, within the meaning of the Fourteenth Amendment of the Constitution of the United States.^ A State statute for raising public revenue by the assessment and collection of taxes, which 1 Head v. Amoskraf/ Manufacturinfj Co., 113 U. S. 9. 2 Provident Institution for Savings v. Jersey City, 113 U. S. 506. 8 Wiirts V. Hodgland, 114 U. S. 606. 668 SUPPLEMENTARY. Lecture XIII. gives noticG of the proposed assessment to an Fouriertr'"'' ^wncr of property to be affected, by requiring Amendment. him at a time named to present a statement of Limitations upon ■, . , •l^ t • j^- i_ r-i i • the powers of a ^^^^ property, With his estimate oi its vahie, to a state. designated official charged with the duty of receiving the statement, which fixes time and place for public sessions of other officials, at which this statement and estimate are to be considered, where the official valuation is to be made, and when and where the party interested has the right to be present and to be heard ; and which affords him opportunity in a suit at law for the collection of the tax, to judicially contest the validity of the proceeding, does not necessarily deprive him of his property without "due process of law," within the meaning of the Fourteenth Amendment.^ A State law for the valuation of property and the assessment of taxes thereon, which pro- vides for the classification of property, subject to its provisions, into different classes, which makes for one class one set of provisions as to modes and methods of ascertaining the value, and as to right of appeal, and different provisions for another class as to those subjects, but which provides for the impartial application of the same means and methods to all constituents of each class, so that the law shall operate equally and uniformly on all persons in similar circum- stances, denies to no person affected by it " equal protection of the laws " within the meaning of 1 Kentucky Railroad Tax Cases, 115 U. S. 321. SUBJECTS NOT DISCUSSKl) KLSKWIIKKE. 669 the Fourteenth Amendment to the Constitution LECTimK xiii. of the United States.^ Su,.p.emeuta'ry. tourtoeiitn A statute of a State requiring every railroad Aim-ndmont. . ,■, oiij 1 1 -i- LiinitationB upon corporation m the fetate to erect and mamtam ,^4, po^^^.s of a fences and cattle guards on the sides of its road, s^*^- and, if it does not do so, making it liable in double the amount of damages occasioned thereby and done by its agents, cars, or engines to cattle or other animals on its road, does not deprive a railroad corporation, against which such double damages are recovered, of its prop- erty without due process of law, or deny it the equal protection of the laws in violation of the Fourteenth Article of Amendment.^ The provisions in the Fourteenth Amend- ment, that "no State shall deny to any person within its jurisdiction the equal protection of the laws," do not prohibit a State from requiring for the admission within its limits of a corpora- tion of another State such conditions as it chooses.^ If the legislature of a State, in the exercise of its power of taxation, directs the expense of laying out, grading or repairing a street to be assessed upon the owners of lands benefited thereby ; and determines the whole amount of the tax, and further determines what lands are benefited by the improvement ; and provides for notice to and hearing of each owner, at some stage of the proceedings, upon the question what ^ Kentucky Railroad Tax Cases, 115 U. S. 321. '^ Missouri Pacific Railway Co. v. Humes, 115 U. S. 512. ^ Pembina Mining Co. v. Pennsylvania, 125 U. S. 181. 670 SUPPLEMENTARY. le<^ture XIII. proportion of the tax shall be assessed upon his suppiomenury. j^^^,^^ ^^^^^^^ -^ ^^ talun^^ of his property without Aineiiduieut. due process of law, in violation of the Fourteenth the powers of a Amendment/ sta««- The statute of Kansas, which provides that " every railroad company organized or doing business in this State shall be liable for all damages done to any employe of such company, in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employes, to any person sustaining such damage," does not deprive a railroad company of its property witliout due process of law; and does not deny to it the equal protection of the laws; and is not in conflict with the Fourteenth Amendment to the Constitution of the United States in either of these respects.^ The Kentucky statute of March 24, 1882, which authorizes the city government of Louis- ville to open and improve streets and assess the cost thereof on the owners of adjoining lots, does not deprive such owners of their property with- out due process of law, and does not deny them the equal protection of the laws, and is not re- pugnant to Section 1 of the Fourteenth Amend- ment to the Constitution of the United States.^ The provision in the Code of Iowa, Section 1289, which authorizes the recovery of " double the value of the stock killed or damages caused thereto," by a railroad, when the injury took place 1 Spencer v. Merchant, 125 U. S. 345. 2 Missouri Pacijic Bailway Co. v. Maclcey, 127 U. S. 205. 8 Walston V. Nevin, 128 U. S.. 678. SUBJECTS NOT DISCUSSED ELSEWHERE. OTl at ca point on the road where the corporation LFXTrnK xni. Snpplc'ineiitary. t)i had a riiilit to erect a fence and failed to do so, ' J'^'',^'"" O l'(>urt(;cii and wdien it was not " occasioned by the wilful Amemimeiit. ,«,, 1- ,■>■>• 1 • n' 1 Limitations upon act 01 the owner or his agent, is not in contlict the powers of a with the Fourteenth Amendment to the Const i- ^^ate. tution, either as depriving the company of prop- erty without due process of law, or as denying to it the equal protection of the laws.^ A tax which is imposed by a State statute upon " the corporate franchise or business " of all corporations incorporated under any law of the State or of any other State or country, and doing business within the State, and which is measured by the extent of the dividends of the corporation in the current year, is a tax upon the right or privilege to be a corporation and to do business within the State in a corporate capacity, and is not a tax upon the privilege or franchise which, when incorporated, the com- pany may exercise ; and being thus construed, its imposition upon the dividends of the company does not violate the provisions of the statute exempting bonds of the United States from taxation, 12 Stat. 346, c. 33, § 2, although a portion of the dividends may be derived from interest on capital invested in such bonds.^ Such a tax is not in conflict with the last clause of the tirst section of the Fourteentli Amendment to the Constitution of the United States, declaring that no State shall deprive any 1 Minneapolis & St. Lords Raihcay v. Beckivith, 129 U. S. 26. ^ Home Insurance Compawj v. New York, 131 U. S. 694. 672 SUPPLEMENTARY. Lecture XIII. person witliin its jurisdiction of the equal pro-, Supplementary, ^ection o£ the laWS.^ Fourteenth Amendment. The provisions ill the Revised Statutes of t^jiltowlTofr Texas, articles 1242-1245, which, as construed State. by the highest court of the State, convert an appearance by a defendant for the sole purpose of questioning the jurisdiction of the court, into a general appearance and submission to the jurisdiction of the court, do not violate the pro- vision in the Fourteenth Amendment to the Constitution which forbids a State to deprive any person of life, liberty, or property without due process by law.^ No State can deprive particular persons or classes of persons of equal and impartial justice under the law, without violating the provisions of the Fourteenth Amendment to the Constitu- tion.^ State legislation, simply forbidding the defend- ant to come into court and challenge the validity of service upon him in a personal action without surrendering himself to the jurisdiction of the court, but which does not attempt to restrain him from fully protecting his person, his property, and his rights against any attempt to enforce a judg- ment rendered without due process of law, is not in violation of the Fourteenth Amendment.* A person is not denied the equal protection of the laws, nor deprived of liberty without due 1 Home Insurance Company v. N^ew York, 134 U. S. 594. 2 York V. Texas, 137 U. S. 15. 3 Caldwell v. Texas, 137 U. S. 692. 4 Kaufman v. WooUers, 138 U. S. 285. SUBJECTS NOT DISCUSSED ELSEWHERE. ('>'•'> process of law, in violation of the Fourteenth lecturk xiii. Amendment, by beinor tried and sentenced to •J"i>i'ieinemary. ' •/ d fourteenth imprisonment by a judge who, although appointed AmeiKimont. ^ ,^ ',1 , l^ •! • • i Limitations iii)on by the governor without authority, is a judge ^^e powers of a de facto of a court de jure, by the law of the state. State as declared by its highest court. ^ An ordinance passed by the city of New Orleans, under authority conferred by the legis- lature of Louisiana, prohibiting the keeping of any private market within six squares of any pub- lic market of the city, under penalty of being sentenced, upon conviction before a magistrate, to pay a fine of twenty-hve dollars, and to be imprisoned for not more than thirty days if the fine is not paid, does not violate the Fourteenth Amendment to the Constitution." State Statutes regulating or prohibiting the statutes re^rniat- sale of intoxicating liquors have been the subject "afi^,'!,*i"ki'iiois m!t of a great deal of litigation, and their constitu- affected by this tionality has been drawn in question. In most ' of the cases the question has been whether the statute before the court was or was not a regu- lation of commerce. That class of cases has already been noticed. There are, however, a few cases in which it has been claimed that the statute deprived the citizen of rights, privileges, or immunities protected by the Fourteenth Amendment. It is well settled that the sale of spirituous and intoxicating liquors by retail, and in small » In re Manning. 139 U. S. 504. 2 Natal V. Louisiana, 139 U. S. 621. liquors (174 SUPPLEMENTARY. lrctiki.; XIII. qnantities, may be regulated, or may be abso- KCrrtelM.u,' ^^'t^^y prohibited by State legislation, without Amendment, does vioUitiug the Coiistitutiou or laws of the United not affect statutes c^, , i ny ••„! j.* t regiiiatin" sales ^^^tes. iiiveu a municipal corporation, when of intoxicating thereto duly authorized by the law of the State, may, in the exercise of the police power of the State, license or refuse to license persons to sell intoxicating liquors in that way,^ without violat- lating either the commerce clause of the Consti- tution or the Fourteenth Amendment. The usual and ordinary legislation of the States, regulating or prohibiting the sale of intoxicating liquors, raised no question under the Constitution of the United States prior to the Fourteenth Amendment of that instrument. The right to sell intoxicating liquors is not one of the privileges and immunities of citizens of the United States, which by that amendment the States were forbidden to abridge.^ The restraining provisions of the Fourteenth Amendment are not infringed by the Statutes of Iowa authorizing its courts, when a person vio- lates an injunction restraining him from selling intoxicating liquors, to punish him as for con- tempt by fine or imprisonment or both. Pro- ceedino:s accordins; to the common law for contempt of court are not subject to the right of trial by jury, and are '" due process of law," within the meaning of the Fourteenth Amend- ment to the Constitution.* 1 Crowley v. Christenspu, 137 U. S. 8fi. 2ib. ^ Bartemryrr v. Tav-a, 14 Wall. '21. * Eilenbcckn- v. I'hjmonUi Cuiiiily, 134 IJ. S. 31. SUBJECTS NOT DISCUSSED LLSEWIIKKE. G75 If a State deems the absokito prohibition of lectukk xiri. the manufacture and sale, within its limits, of ;'^''Pi'''^''"t'""i'y- intoxicating liquors for other than medical, Aineii*'^- tionally and without reservation, to all and to every person who directly or indirectly partici- pated in the late insurrection or rebellion, ex- cepting such person or persons as may be under presentment or indictment in any court of the 1 In re Bahrer, Pctilioner, 140 U. S. 545. 678 SUPPLEMENTARY. Lecture XIIL Supplenieutary. Political disa- bilities. United States having competent jurisdiction, upon a charge of treason or other felony."^ A few days later the Fourteenth Amendment was proclaimed, by which certain classes of the persons covered by the proclamation of pardon were made ineligible for holding certain offices, unless Congress should, " by a vote of two- thirds of each House, remove such disability." The index of volume 16 of the Statutes at Large, from page 1181 to page 1206, is taken up with the names of persons whose disabilities were so removed. On the 22d of May, 1872, Congress enacted, two-thirds concurring, "• that all political disabilities imposed by the third section of the Fourteenth Article of Amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military, and naval ser- vice of the United States, heads of departments, and foreign ministers of the United States." ^ The whole number thus excepted from the operation of the statute could not have been very large. Since its passage the disaljilities of one hundred and sixty-nine of that number have been removed by special acts of Congress. 6. Provisions as to Public Debts. The public debt. Little Comment is necessary upon the provis- ions of section 4, relating to the public debt of 1 15 Stat. 702, 703. 2 17 Stat. 142, c. 0.3. SUBJECTS NOT DISCUSSED ELSEWHERE. 07') the United States, to debts incurred in aid of the le< ti-kk xiii. 'rebellion, and to claims for the loss or enianci- ;,.?'''' 'T,'.'''^f7f ' Ine public debt. j)ation of slaves. As to the former, it is sufficient to say that it was looked upon by those who regarded the emission of bills of credit in the form of circulatincr notes as unconstitutional, as a constitutional assumption of the debt so created. As to the latter, nothing need be said. C. The Fifteenth Amendment. The Fifteenth Amendment to the Constitution Fifteenth Amend- does not confer the right of suffrage ; but it ™^"*" invests citizens of the United States with the right of exemption from discrimination in the exercise of the elective franchise on account of their race, color, or previous condition of servi- tude, and empowers Congress to enforce that right by "appropriate legislation." The power of Congress to legislate at all upon the subject of voting at State elections rests upon this amendment, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified elector at such elections is because of his race, color, or previous condition of servitude. The third and fourth sections of the Act of May 31, 1870 (16 Stat. 140), not being confined in their operation to unlawful discrimination on account of race, color, or previous condition of servitude, are beyond the limit of the Fifteenth Amendment, and unauthorized.^ 1 United States v. Reese, 92 U. S. 214. 080 SUPPLEMENTARY. Lecture XIII. An indictment wliicli charges in the first suppicmoutary ^^^^^^^ ^-^^^^ ^^le defendants conspired to intiini- Fifteentli Amend- ^ toent. date A. B., a citizen of African descent, in the exercise of his right to vote for a member of the Congress of the United States, and that in the execution of that conspiracy they beat, bruised, wounded, and otherwise maltreated him; and in the second count that they did this on account of his race, color, and previous condition of servitude, by going in disguise and assaulting him on the public highway and on his own premises, contains a sufhcient description of an offence embraced w^ithin the provisions of §§ 5508, 5520, Rev. Stat. Although it is true that the Fifteenth Amend- ment gives no affirmative right to the negro to vote, yet there are cases, some of which are stated by the court, in which it substantially confers that right upon him. United States v. Reese, 92 U. S. 214, qualified and explained.^ 1 Ex parte Yarbrouyh, 110 U. S. 65. I. [THE CONSTITUTION OF THE UNITED STATES OF AMERICA.] We the People of the United States, in Order to form Appendix, a more perfect Union, establish Justice, insure domes- ^^^ Constitution, tic Tranquility, provide for the common defence, pro- mote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.^ ARTICLE. I. Section. 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. The House of Representatives shall be composed of IMembers 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.^ No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven 1 Chisholm v. Georgia, 2 Dall. 419; McCulIocb v. Maryland, 4 Wheat. 316; Brown v. Maryland, 12 AVheat. 419; Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243; Lane County v. Oregon, 7 Wall. 71 ; Texas v. White, 7 Wall. 700. 2 Hayburn's Case, 2 Dall. 409 (notes) ; United States v. Harris. lOG U. S. 629; In re Neagle, 1.3.5 U. S. 1. 8 Ex parte Yarbrough, 110 U. S. 651 ; In re Green, 134 U. S. 377. G81 682 APPENDIX. Appendix. Years a Citizen of the United States, and who shall not, The Constitution, when elected, be an Inhabitant of that State in which he shall be chosen. 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 be determined by adding to the whole Number of free Persons, 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 subse- quent 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 Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecti- cut five. New York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina five, South Carolina five, and Georgia three. ^ When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Ofiicers ; and shall have the sole Power of Impeachment. Section. 3. 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. 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 1 Dodge V. Woolsey, 18 How. 331; Loughborough v. Blake, 5 Wheat. 317; Pacific Insurance Co. v. Soule, 7 Wall. 433; Veazie Bank v. Fenno, 8 Wall. 533; Scholey v. Rew, 23 Wall. 331; De Treville v. Smalls, 98 U. S. 517 ; Springer v. United States, 102 U. S. 586. THE CONSTITUTION. 683 Senators of the first Class shall be vacated at the Ex- Appendix, pii-ation of the second Year, of the second Class at the ''•'« Coustitution. 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 llesignation, or otherwise, during the Kecess 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. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice Presi- dent, or when he shall exercise the Office of President of the United States. 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 Concur- rence of two thirds of the Members present. 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 Punishment, according to Law.^ Section. 4. The Times, I'laces and Manner of hold- ing Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter 1 In re Green, 134 U. S. 377. 684 APPENDIX. Appendix. such Regulations, except as to the Places of chusing The Constitution. Senators. ^ The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Mem- bers, 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 Members, in such Manner, and under such Penalties as each House may provide.^ Each House may determine the Rules of its Proceed- ings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.^ 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. 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. The Senators and Representatives shall receive a Compensation for their Services, to be ascer- tained 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 Attendance at the Session of their respective Houses, and in going to and returning from the 1 United States v. Reese, 92 U. S. 218; Ex parte Siebold, 100 U. S. 371 ; Ex ports Yarbrough, 110 U. S. 651; In re Coy, 127 U. S. 731 ; In re Neagle, 135 U. S. 1. 2 Li re Loney, 134 U. S. 372. 8 Anderson v. Dunn, 6 Wheat. 204; Kilbourn v. Thompson, 103 U. S, 168. TUE CONSTITUTION. 685 same ; and for any Speech or Debate in either House, Appendix, they shall not be questioned in any other Place.^ '^''^ Constitution. No Senator or Kepresentative shall, during the Time for which lie was elected, be ap})ointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased, during such tinu»; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section. 7. All Bills for raising Revenue shall origi- nate in the House of Representatives ; but the Senate may propose or concur with Amendments as on other Bills. 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 originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration 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 like- wise 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 determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal 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 Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.^ Every Order, Resolution, or Vote to which the Con- 1 Coxe V. M'Clenachan, 3 Dall. 478; United States v. Cooper, 4 Dall. 341. 2 In re Neagle, 135 U. S. 1. 686 APPENDIX. Appendix. cTirrence of the Senate and House of Representatives The Constitution, y^r^y j^g 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 Representa- tives, according to the Rules and Limitations prescribed in the Case of a Bill. Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and gen- eral Welfare of the United States ; but all Duties, Im- posts and Excises shall be uniform throughout the United States ; ^ To borrow Money on the credit of the United States ; * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ; ^ iHylton V. United States, 3 Dall. 171; McCulloch v. Maryland,.* Wheat. 310 ; Loughborough v. Blake, 5 Wheat. 317 ; Osborn v. Bank of the United States, 9 Wheat. 738; Weston v. City Council of Charleston, 2 Pet. 449; Dobbins v. The Commissioners of Erie County, 16 Pet. 435; License Cases, 5 How. 504 ; Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299; Dodge v. Woolsey, 18 How. 331; McGuire v. The Commonwealth, 3 AVall. 3.S7; Van Allen v. The Assessors, 3 Wall. 573; Bradley ??. The People, 4 Wall. 459; Pervear v. Commonwealth, 5 Wall. 475; Pacific Insurance Co. v. Soule, 7 Wall. 433; Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, 8 Wall. 148; Veazie Bank v. Fenno, 8 Wall. 5-33; The Collector v. Day, 11 Wall. 113 ; United States V. Singer, 15 Wall. Ill ; State tax on Foreign-held Bonds, 15 Wall. 300; United States t;. Railroad Company, 17 Wall. 322; Railroad Company V. Peniston, 18 Wall. 5 ; Scholey v. Rew, 23 Wall. 331 ; Springer v. United States, 102 U. S. 586; Legal Tender Case, 110 U. S. 421 ; Edye v. Robertson, 112 U. S. 580; Van Brocklin v. Tennessee, 117 U. S. 151; License Tax Cases, 5 Wall. 462. 2 McCulloch ?'. Maryland, 4 Wheat. 316 ; Osborn v. United States Bank, 9 Wheat. 738; Weston v. City Council of Charleston, 2 Pet. 449; Bank of Commerce v. Xew York City, 2 Black, ()20; Bank Tax Case, 2 Wall. 200 ; The Banks v. The Mayor, 7 Wall. 16 ; Bank v. Supervisors, 7 Wall. 26; Hepburn v. Griswold, 8 Wall. 603; National Bank v. Common- wealth, 9 Wall. 353; Parker v. Davis, 12 Wall. 457: Legal Tender Case, 110 U. S. 421. 3 Gibbons v. Ogden, 9 Wheat. 1 ; Brown v. Maryland, 12 Wheat. 419; Willson V. Black Bird Creek Marsh Company, 2 Pet. 245; Cherokee Nation w. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; City of New York v. Miln, 11 Pet. 102 ; United States v. Coombs, 12 Pet. 72 ; THE CONSTITUTION. 687 Holmes v. Jennison, 14 Pet. 540; License Cases, 5 How. 504; Passenger Appendix. Cases, 7 How. 2.S3; Nathan v. Louisiana, H How. 7;?; Mager ?). Griina, The ('onstitution. 8 How. 4SI0; United States r. Marijiiold, !> How. oflO; Cooley ". Board of Wardens of the Port of Pliiladelphia, 12 How. 2i)i) ; The Propeller Genesee Chief ?'. Fitzhugh, 12 How. 443; Pennslyvania r. Tlie AVheeling Bridge Co., 1.'5 How. 518; Veazie v. Moor, 14 How. 5()8; Smith v. Maryland, 18 How. 71 ; Penn.sylvania v. Wheeling and Belmont Bridge Co., 18 How. 421 ; Sinnot i: Davenport, 22 How. 227 ; Foster v. Davenport, 22 How. 244; Conway w. Taylor's Executor, 1 Black, 603; Steamship Co. r. Joliife, 2 Wall. 450; United States ?>. Holliday, 3 Wall. 407; (iilman V. Philadelphia, 3 Wall. 713; The Passaic Bridges, 3 Wall. 782; License Tax Cases, 5 Wall. 4G2; Steamship Company r. Port Wardens, fi Wall. 31 ; Crandall r. Nevada, Wall. 35 ; White's Bank v. Smith, 7 Wall. 646; Waring v. The Mayor, 8 Wall. 110; Paul v. Virginia, 8 Wall. 168; Thomson v. Pacific Railroad, 9 Wall. 57it: Downham r. Alexandria Council, 10 Wall. 173; Ducat r. Chicago, 10 Wall. 410; The Clinton Bridge, 10 Wall. 454; The Daniel Ball, 10 Wall. 557; Liverpool Insur- ance Company r. Massachusetts, 10 Wall.5()(;; The Montello, 11 Wall. 411; Ward v. Maryland, 12 Wall. 418 ; Ej- parte, McNiel, 13 Wall. 236; State Freight Tax, 15 Wall. 232 ; State Tax on Railway Gross Receipts, 15 Wall. 284; Osborne v. Mobile, 16 Wall. 470; Railroad Company w. Fuller, 17 Wall. 560; Bartemeyer v. Iowa, 18 Wall. 129; The Delaware Railroad Tax, 18 Wall. 206 ; Peete r. Morgan, 19 Wall. 581 ; Railroad Company i\ Richmond, 19 Wall. 584; Minor v. Happersett, 21 Wall. 1()2; Railroad Company r. Maryland, 21 Wall. 456; The Lottawanna, 21 Wall. 558; W^elton v. Missouri, 91 U. S. 275; Henderson v. The ]^Iayor of the City of New York, 92 U. S. 259; Cliy Lung v. Freeman, 92 U. S. 275 ; South Carolina v. Georgia, 93 U. S. 4 ; Sherlock v. Ailing, 93 U. S. 99; United States v. Forty-three Gallons of Whiskey, 93 U. S. 188; Foster v. Master and Wardens of the Port of New Orleans, 94 U. S. 246; Railroad Co. v. Husen, 95 U. S. 465 ; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 ; Beer Co. v. Massachusetts, 97 U. S. 25; Cook v. Pennsylvania, 97 U. S. 566; Trade Mark Cases, 100 U. S. 82 ; Packet Co. v. St. Louis, 100 U. S. 423 ; Tiernan v. Rinker, 102 U. S. 123; Lord v. Goodall &c. Steamship Co., 102 U. S. 541; Wilson v. McNamee, 102 U. S. 572; Mobile County v. Kimball, 102 U. S. 691; Webber v. Virginia, 103 U. S. 344; Western Union Telegraph Co. v. Texas, 105 U. S. 460; Newport &c. Bridge Co. v. United States, 105 U. S. 470 ; People r. Compagnie Gc'ncrale Translantique, 107 U. S. 59 ; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365 ; Escanaba Co. v. Chicago, 107 U. S. 678; Miller v. New York, 109 U. S. 385; Moran v. New Orleans,.112 U. S. 69; Foster v. Kansas, 112 U. S. 201; Head Money Cases, 112 U. S. 580; Cardwell v. American Bridge Co., 113 U.S. 205; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727 ; Gloucester Ferry Co. V. Pennsylvania, 114 U. S. li)6; Brown ?-. Houston, 114 U. S. 622; Starin v. New York, 115 U. S. 248; Fisk ?-. Jefferson Police Jury. 116 U. S. 131 ; Stone r. Illinois Central Railroad Co., 116 U. S. .347 ; Stone v. New Orleans and Northeastern Railroad, 11(5 U. S. 352; Walling r. Michigan, 116 U. S. 446; Coe r. Errol, 116 U. S. 517; Pickard v. Pullman Southern Car Co.. 117 U. S. 34 : Tennessee ?'. Pullman Southern Car Co., 117 U. S. 51; Spraigue r. Thompson, 118 U. S. 90; Morgan Steamship 688 APPENDIX. Appendix. To establish an uniform Rule of Xaturalization,^ and Ihe Constitution, uniform Laws on the subject of Bankruptcies throughout the United States ; ^ To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures ; ^ To provide for the Punishment of counterfeiting the Securities and current Coin of the United States ; * To establish Post Offices and post Roads ; ^ Co. V. Louisiana, 118 U. S. 455; Wabash &c. Railway Co. v. Illinois, 118 U. S. 557; United States v. Arjona, 120 U. S. 479; Robbins r. Shelby County Taxing District, 120 U. S. 489; Corson v. Maryland, 120 U. S. 502; Fargo r. Michigan, 121 U. S. 230; Philadelphia and Southern Steam- ship Co. v. Pennsylvania, 122 U. S. 32(5: Western Union Telegraph Co. V. Pendleton, 122 U. S. 347; Sands v. Manistee River Improvement Co., 123 U. S. 288; Mugler v. Kansas, 123 U. S. (J23; Smith r. Alabama, 124 U. S. 4G5; Willamette Iron Bridge Co. r. Hatch, 125 U. S. 1; Pembina Consolidated Mining Co. v. Pennsylvania, 125 U. S. 181 ; Bowman v. Chicago &c. Railway Co., 125 U. S. 4t)5; California v. Central Pacific Railroad Co., 127 U. S. 1; Ratterraan r. Western Union Telegraph Co., 127 U. S. 411; Leloup r. Port of Mobile, 127 U. S. (i40; Kidd v. Pearson, 128 U.S.I; Asher r. Texas, 128 U. S. 129; Stoutenburgh r. Hennick, 129 U. S. 141 ; Kimmish v. Ball, 129 U. S. 217 ; Western Union Telegraph Co. V. Alabama, 132 U. S. 472; Louisville, New Orleans &c. Railway Co. t>. Mississippi, 133 U. S. 587; Leisy v. Hardin, I'.iH U. S. 100; Lyng v. Michigan, 135 U. S. IGl ; Cherokee Nation /'. Southern K-insas Railway Co., 135 U. S. (541; McCall r. California, 130 U. S. 104; Norfolk and Western Railroad Co. v. Pennsylvania, 13G U. S. 114; Minnesota r. Barber, 13(5 U. S. 313; Crowley v. Christensen, 137 U. S. Sfi; Wheeler v. Jackson, 137 U. S. 245; Brimmer v. Rebman, 138 U. S. 78; Munn v. Illinois, 94 U. S. 113; Chicago, Burlington &c. Railroad v. Iowa, 94 U. S. 155 ; Peck v. North Western Railway, i>4 U. S. 1(54. 1 Collet V. Collet, 2 Ball. 294 ; Chirac v. Chirac, 2 Wheat. 259. 2 Sturges V. Crowninshield, 4 Wheat. 122 ; McMillan v. McNeill, 4 Wheat. 209; Houston v. Moore, 5 AVheat. 1; Farmers' and Mechanics' Bank of Pennsylvania r. Smith, 6 Wheat. 131 ; Ogden »•. Saunders, 12 Wheat, 213; Boyle v. Zacharie and Turner, 6 Pet. .348; Gassies v. Ballon, 6 Pet. 761; Beers v. Haughton, 9 Pet. 329; Suydam r.Broadnax, 14 Pet. G7; Cook v. Moflat, 5 How. 295; Dred Scott v. Sandford, 19 How. 393 ; In re Neagle, 135 U. S. 1. 3 Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Pet. 257; Fox v. Ohio, 5 How. 410; United States r. Marigold, 9irow. 5G0; Veazie Bank v. Fenno, 8 Wall. 533; Parker v. Davis, 12 Wall. 457; Legal Tender Case, 110 U. S. 421. 4 Fox 71. Ohio, 5 How. 410; United States ?•. Marigold, 9 How. 5G0. 5 McCulloch V. Maryland, 4 Wheat. 31(5; Pennsylvania r. Wheeling and Belmont Bridge Co., 18 How. 421 ; Ex parte Jackson, 90 U. S. 727. THE CONSTITUTION. C89 To promote the I'rosi^ress of Science and useful Arts, by Appendix, securing for limited Times to Autlun-s and Inventors the ^^^ Constitution, exclusive Right to their respective Writings and Discov- eries ; ' To constitute Tribunals inferior to the supreme Court ; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations ; - To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ; » To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; * To provide and maintain a Navy ; ^ To make Rules for the Government and Regulation of the land and naval Forces ; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ; ^ To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the 1 Grant v. Raymond, 6 Pet. 218 ; Wheaton v. Peters, 8 Pet. 591 ; Trade Mark Cases, 100 U. S. 82; Burrow-Giles Lithographic Co.i\ Sarony, 111 U. S. 53 ; Banks v. Manchester, 128 U. S. 244 ; Callaghan v. INIyers, 128 U. S. 617. 2 United States ?•. Palmer, 3 Wheat. filO; United States r. Wiltberger, 5 Wheat. 70; United States v. Smith, 5 Wheat. 153; United States v. Pirates, 5 Wheat. 184; United States v. .\rjona, 120 U. S. 479. 8 Brown v. United States, 8 Cranch, 110; American Insurance Co. r. Canter (35() bales cotton), 1 Pet. 511 : Mrs. Alexander's Cotton, 2 Wall. 404; Miller v. United States, 11 Wall. 268; Tyler v. Defrees, 11 Wall. 331; Stewart r. Kahn, 11 Wall. 493; Hamilton v. Dillin, 21 Wall. 73; Lamar v. Browne, 92 U. S. 187 ; Prize Cases, 2 Black, 635. ■1 Crandall r. Nevada, 6 Wall. 35. 5 United States v. Bevans, 3 Wheat. 336; Dynes i-. Hoover, 20 How. 65. 6 Houston ?•. Moore, 5 Wheat. 1 ; Martin v. Mott, 12 Wheat. 19 ; Luther V. Borden, 7 How. 1; Crandall v. Nevada, G Wall. 35; Texas v. White, 7 Wall. 700. C'JU APPENDIX. Appendix. Officers, and the Authority of training the Militia The Constitution, according to the discipline prescribed by Congress;' To exercise exclusive Legislation iu all Cases whatso- ever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Accept- ance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other need- ful Buildings ; — And ^ 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 Govern- ment of the United States, or in any Department or Officer thereof.^ Section. 9. The Migration or Importation of such Persons as any of the States now existing shall tliink proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, 1 Houston V. Moore, 5 Wheat. 1; Martin v. Mott, 12 Wheat. 19; Luther V. Borden, 7 How. 1. '- Hepburn v. Ellzey, 2 Cranch, 444; Houston v. Moore, 5 Wheat. 1 ; Loughborough v. Blake, 5 Wheat. ;>17 ; Cohens i\ Virginia, fJ Wheat. 2()4; American Insurance Co. t'. Canter (TiSfi bales cotton), 1 Pet. 511; Kendall, Postmaster-General, r. United States, 12 Pet. 524; Cross r. Harrison, 16 How. ICA; Dred Scott r. Sandford, 19 How. 30;5; United States V. Dewitt, 9 Wall. 41; Dunphy )'. Kleinsmith, 11 Wall. (ilO; Willard v. Presbury, 14 Wall. (;7(); Phillips r. Payne, 92 U. S. i:iO: United States r. Fox, 94 U. S. .">15; National Bank v. Yankton County, 101 U. S. 129; Fort Leavenworth Railroad Co. r. Lowe, 114 U. S. 525; Van Brocklin v. Tennessee, 117 U. S. 151. 3 McCulloch V. Maryland, 4 Wheat. 316; Wayman v. Southard, 10 Wheat. 1 ; Bank of United States v. Hal.stead, 10 Wheat. 51 ; AbleiuMU V. Booth; United States v. Booth, 21 How. .506; Hepburn r. Griswold, 8 Wall. ()03; National Bank v. Commonwealth, 9 Wall. ;55;5; Thomson r. Pacific Railroad, 9 Wall. 579; Parker v. Davis (Legal Tender Cases) 12 Wall. 457; Railroad Company r. Johnson, 13 Wall. 195; Railroad Company v. Peniston, 18 Wall. 5 ; United Slates ?'. Harris, 106 U. S. 629; Legal Tender Case, 110 U. S. 421 ; Ex parte Yarbrongh, 110 U. S. 651 ; United States v. Arjona, 120 U. S. 479; Stoutenburgh v. Heunick, 129 U. S. 141 ; In re Neagle, 135 U. S. 1. THE CONSTITUTION. 601 but a Tax or duty may bo imposed on siich Importation, Appendix. not exceeding ten dollars for each Person.^ I'^i® i'«nstitiiii<,n. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or In- vasion the public Safety may recpnre it.^ No Bill of Attainder or ex post facto Law shall be passed.' No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enunuu-ation herein be- fore directed to be taken.* 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.' 1 Dred Scott v. Sandford, 19 How. 303 ; People r. Compagnie Gendrale Transatlantique, 107 U. S. 59. 2 United States v. Hamilton, 3 Dall. 17 ; Hepburn v. Ellzey, 2 Cranch, 444; Ex parte Bollman and Swartvvout, 4 Cranch, 7r); Kx parte Kearney, 7 Wheat. 38; Ex parte Tobias Watkins, 3 Pet. 192; Ex parte Milburn, 9 Pet. 704; Holmes r. Jennison, 14 Pet. 540; Ex parte Dorr, 3 How. 10:5 ; Luther v. Borden, 7 How. 1; Ableman v. Booth; United States V. Booth, 21 How. 50!!; Ex parte Vallandisham, 1 "Wall. 243; Ex parte Millisan, 4 Wall. 2 ; Ex parte McCardle, 7 Wall. 50() ; Ex, parte Yerger, 8 Wall. 85; Tarble's Case, 13 Wall. 397; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; Ex parte Karsten- dick, 93 U. S. 396; Ex parte Virginia, 100 U. S. 3.39. 3 Fletcher v. Peck. 6 Cranch, 87 ; Ogden v. Saunders, 12 Wheat. 213; Watsou r. Mercer, 8 Pet. 88; Carpenter r. Penn.sylvania, 17 How. 456; Locke ?'. New Orleans, 4 Wall. 172; Cuniniings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 3.33; Drehman v. Stitle, 8 Wall. 595; Klinger v. Missouri, 13 Wall. 257; Pierce ?.'. Car.skadon, 16 Wall. 234; In re Neagle, 135 U. S. 1 ; Cook r. United States, 138 U. S. 157. < Loughborough v. Blake, 5 Wheat. 317; Licen.se Tax Cases, 5 WalL 462; Pacific Insurance Co. v. Soule, 7 Wall. 433; Springer v. United States, 102 U. S. 5S6; Gibbons v. District of Columbia, IK! U. S. 404. sCooley?'. Board of Wardens of Port of Philadelphia, 12 How. 299; Pacific Insurance Co. v. Soule, 7 Wall. 433; Pace v. Burgess, 92 U. S. .372: Tnrpin v. Burgess, 117 U. S. 504. fiCooleyv. Board of Wardens of the Port of Philadelphia, 12 How. 299; State of Pennsylvania v. Wheeling and Belmont Bridget Company, 18 How. 421 ; Munn v. Illinois. 94 U. S. 113; Packet Co. v. St. Louis, 100 U.S. 423; Packet Co. v. Catlettsburg, 105 U. S. 559; Gloucester Ferry Co. t'. Pennsylvania, 114 U. S. 196; Walling r. Michigan, 116 U. S. 44<;; Morgan's Steamship Co. v. Louisiana, 118 U. S. 455; Johnson v. Chicago and Pacific Elevator Co., 119 U. S. 388. 692 _ APPENDIX. Appendix. No Money shall be drawn from the Treasury, but in The Constitution. Consequence of Appropriations made by Law ; and a regular Statement and Account of the Receipts and Ex- penditures of all public Money shall be published from time to time.^ No Title of Nobility shall be granted by the United States : And no Person holding any Office or Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. ^ Section. 10. No State shall enter into any Treaty, Alliance, or Confederation ; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Pay- ment of Debts ; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.^ 1 United States v. Guthrie, 17 How. 284. 2 Brashear v. Mason, 6 How. 92. 3 Van Home's Lessee t'. Dorrance, 2 Dall. 304; Commonwealth v. Franklin, 4 Dall. 255; Cakler and wife v. Bull and wife, 3 Dall. 38G; Cooper V. Telfair, 4 Dall. 14; Fletcher v. Peck, 6 Cranch, 87; New Jer- sey V. Wilson, 7 Cranch, 1(54; Sturges i\ Crowninshield, 4 Wheat. 122; McMillan v. McNeil, 4 Wheat. 209; Dartmouth College v. Woodward, 4 Wheat. 518 ; Houston v. Moore, 5 Wheat. 1 ; Owings v. Speed, 5 Wheat. 420; Farmers and Mechanics' Bank v. Smith, fi Wheat. 131; Green v. Biddle, 8 Wheat. 1 ; Ogden i'. Saunders, 12 Wheat. 213 ; Mason v. Haile, 12 Wheat. 370; Satterlee v. Matthewson, 2 Pet. 380; Hart v. Lamphire, 3 Pet. 280; Craig U.Missouri, 4 Pet. 410; Providence Bank v. Billings and Pitman, 4 Pet. 514; Byrne v. Missouri, 8 Pet. 40; Watson v. Mer- cer, 8 Pet. 88 ; Mumma v. Potomac Company, 8 Pet. 281 ; Beers v. Haugh- ton,9 Pet. .329; Briscoe r. The Bank of the Commonwealth of Kentucky, 11 Pet. 257 ; The Proprietors of Charles River Bridge r. The Proprietors of Warren Bridge, 11 Pet. 420; Armstrong v. The Treasurer of Athens County, 16 Pet. 281 ; Bronson v. Kinzie, 1 How. 311 ; Gwin r. Breedlove, 2 How. 29 ; McCracken v. Hay ward, 2 How. 008 ; Gordon v. Appeal Tax Court, 3 How. 133 ; Maryland v. Baltimore and Ohio R. R. Co., 3 How. 534; Neil, Moore & Co. v. Ohio, 3 How. 720; Cook v. Moffatt, 5 How. 295 ; Planters' Bank v. Sharp, 6 How. 301 ; West River Bridge Company V. Dix, 6 How. 507; Crawford v. Branch Bank of Mobile, 7 How. 279; Phalen v. Virginia, 8 How. 1(53; Woodruff r. Trapnall, 10 How. 190; Paup I'. Drew, 10 How. 218; Baltimore and Susquehanna Railroad Co. V. Neshit, 10 How. 395; Butler v. Pennsylvania, 10 How. 402; East Hartford v. Hartford Bridge Co., 10 How. 511; Achisou v. Huddlesou, THE CONSTITUTION. GOo No State shall, withovit the Consent of the Congress, Appendix, lay any Imposts or Duties on Imports or Exports, ex- '^^^^ Constitution, cept what may be absolutely necessary for executing its inspection Laws : and the net Produce of all Duties and 12 How. 29;5 ; Darlington r. Tlie Bank of Alabama, 13 How. 12 ; Rich- mond &c. Railroad Co. r. The Loui.sa Railroad Co., l.S How. 71 ; Trustees for Vicennes University r. Indiana, 14 How. 2(i8; Curran r. Arkan.sas, 15 How. '.MA; State Hank of Ohio r. Knoop, IIJ How. 'M\); Carpenter v. Pennsylvania, 17 How. 4.")t>; Dodj^e *'. Woolsey, IX How. .3.51 ; Mechanics' &c. Bank v. Thonuvs, IS How. 'Mi ; Beers r. Arkansas, 20 How. 527 ; As- pinwall ('. Commissioners of County of Daviess, 22 How. ."(U ; Rector of Christ Church, Philadelphia, v. County of Philadeli>hia, 24 How. ;300; Howard r. Bugbee, 24 How. 4()1 ; Jefferson Branch Bank v. Skelley, 1 Black, 4;i6; Franklin Branch Bank v. Ohio, 1 Black, 474; Trustees of the Wabash and Erie Canal Company r. Beers, 2 Black, 44S; (Jilman v. City of Sheboygan, 2 Black, 510; Bridge Proprietors r. Hoboken Com- pany, 1 Wall. IKi; Hawtliorne v. Calef, 2 Wall. 10; Florentine r. Bar- ton, 2 Wall. 210; The Binghamton Bridge,:? Wall. 51; The Turnpike Company v. The State, 3 Wall. 210; McGee r. Matliis, 4 Wall. -143; Locke V. New Orleans, 4 Wall. 172; Railroad Company r. Hock, 4 Wall. 177; Cumraings I'. Missouri, 4 Wall. 277 ; Ex pa/'/c Carland, 4 Wall.333; Von Hoffman i\ City of Quincy, 4 Wall. 535; Williamson r. Suydam, 6 Wall. 723; Mulligan r. Corbins, 7 Wall. 4S7 ; Furman r. Nichol, 8 Wall. 44; Home of the Friendless v. Rouse, 8 Wall. 430 ; The Washington Uni- versity r. Rouse, 8 Wall. 439; Butz r. City of iMuscatine, 8 Wall. 575; Drehman r. Stifle, 8 Wall. 595; Hepburn v. Griswold, 8 Wall. 003; Gut tj. The State, 9 Wall. 35; Chicago v. Sheldon, 9 Wall. 50; City of Ke- nosha ?'. Lamson, 9 Wall. 477; Railroad Company v. McClure, 10 Wall. 511; Bethell v. Demaret, 10 Wall. 537; Parker v. Davis (The Legal Tender Cases), 12 Wall. 457; Curtis r. Whitney, 13Wall.31; Home Insurance Company v. City Council of Augusta, 93 U. S. 116; West Wisconsin Railroad r. Supervisors, 93 U. S. 595; Tennessee v. Sneed, 96 U. S. 69; Williams v. Bruffy, 96 U. S. 170; Murray v. Charleston, 96 U. S. 432; 694 APPENDIX. Appendix. Imposts, laid by any State on Imports or Exports, shall Tiie Constitution. ]^q f^j. the Use of the Treasury of the United States ; and all such Laws shall be subject to the Eevision and Controul of the Congress.^ Edwards v. Kearzey, 96 U. S. 595 ; Beer Co. v. Massachusetts, 97 U. S. 25; Keith v. Clark, 97 U. S. 454; Fertilizing Co. v. Hyde Park, '.H U. S. 659; Railroad Co. v. Georgia, 98 U. S. 359; University v. People, 99 U. S. 309 ; Packet Co. ■;;. St. Louis, 100 U. S. 423 ; Vicksburg v. Tobin, 100 U. S. 430; Guy v. Baltimore, 100 U. S. 434; Kirtland v. Hotchkiss, 100 U. S. 491; Newton v. Commissioners, 100 U. S. 548; Railroad Co. v. Tennessee, 101 U. S. 337; Wright v. Nagle, 101 U. S. 791; Stone v. Mis- sissippi, 101 U. S. 814; Railroad Co. v. Alabama, 101 U. S. 832; Louisi- ana V. New Orleans, 102 U. S. 203; Hartnian v. Greenhow, 102 U. S. 672; Hall v. Wisconsin. 103 U. S. 5; Wolff v. New Orleans, 103 U. S. 358; Penniraan's Case, 103 U. S. 714; Railroad Co. v. Ham- ersley, 104 U. S. 1; Asj'lum v. New Orleans, 105 U. S. 362; Guaranty Co. v. Board of Liquidation, 105 U. S. 622; Greenwood v. Freight Co., 105 U. S. 13; Kring v. Missouri, 107 U. S. 221; Autoni v. Greenhow, 107 .U. S. 769; Ewell v. Daggs, 108 U. S. 144; Louisiana v. New- Orleans, 109 U. S. 285; Gilfillan v. Union Canal Co., 10;) U. S. 401; Hoff V. County of Jasper, 110 U. S. 53; Nelson v. St. JIartin's Pari.sh, 111 U. S. 716; Chicago Life Insurance Co. v. Needles, 113 U. S. 574; Virginia Coupon Cases, 114 U. S. 269; Amy v. Shelby County, 114 U. S. 387; Effinger r. Kenney, 115 U. S. 566; New Orleans Gas Co. r. Louisi- ana Light Co., 115 U. S. 650; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; New Orleans Waterworks Co. v. Rivers, 115 U. S. 674; Fisk V. Jefferson Police Jury, 116 U. S. 131 ; Stone v. Farmers' Loan and Trust Co., 116 U. S. 307 ; Stone v. Illinois Central Railroad Co., 116 U. S. 347; Stone v. New Orleans & Northeastern Railroad, 116 U. S. 352; Royall V. Virginia, 116 U. S. 572; Hagood v. Southern, 117 U. S. 52; St. Tammany Waterworks v. New Orleans Water Works, 120 U. S. 64; United States v. Arjona, 120 U. S. 479; Church v. Kelsey, 121 U. S. 282; Lehigh Water Co. v. Easton, 121 U. S. 388; Seibert v. Lewis, 122 U. S. 284; New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; Bank of Redemption v. Boston, 125 U. S. 60; Maynard v. Hill, 125 U. S. im- Jaehne v. New York, 128 U. S. 189; Denny v. Bennett, 128 U. S. 489; Williamson v. New Jersey, 130 U. S. 189; Hunt v. Hunt, 131 U. S. appendix clxv; Freeland r. Williams, 1.31 U. S. 405 ; Campbell V. Wade, 132 U. S. 34; Pennsylvania Railroad Co. v. Miller, 132 U. S. 75; • Crenshaw v. United States, l.'M U. S. 99; Medley, Petitioner, 134 U. S. 160: MeGahey v. Virginia, 135 U. S. 662; Bryan v. Virginia, 135 U. S. 662; Cuthbert v. Virginia, 135 U. S. 698; In re Brown, 1.35 U. S. 701; Hucless V. Childrey, 1.35 U. S. 709; Vashon v. Greenhow, 135 U. S. 713; Holden v. Minnesota, 137 U. S. 483; Sioux City Street Railway Co. v. Sioux City, 138 U. S. 98; Wheeling and Belmont Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287. 1 McCulloch V. Maryland, 4 Wheat. 316; Green v. Biddle, 8 Wheat. 1 ; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Mager v. Grima, 8 How. 490; Cooley w. Board of Wardens of Port of THE CONSTITUTION. 695 No State shall, without the Consent of Congress, lay Aijpcndix. any Duty of Tonnage, keep Troops, or Ships of War in '^^^ Coustitution. time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.' ARTICLE. II. Section. 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, to- gether with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representa- tives 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.^ Pbiladelpbia et al., 12 How. 299; Almy v. California, 24 How. 169; License Tax Cases, 5 Wall. 402; Pervear v. Commonwealth, 5 Wall. 475 ; Ste.amship Co. i\ Portwardens, 6 Wall. 31 ; Crandall r. Nevada, 6 Wall. 35; Waring v. The Mayor, 8 Wall. 110; Woodruff r. Parham, 8 Wall. 123; Hinsou f. Lott, 8 Wall. 148; State Tonnage Tax Cases, 12 Wall. 204; State Tax on Railway Gross Receipts, 15 Wall. 284; Inman Steamship Company v. Tinker, ii4 U. S. 238; Cook v. Pennsylvania, 97 U. S. 56(5; Packet Co. v. Keokuk, 95 U. S. 80; Guy v. Baltimore, 100 U. S. 434; People v. Compaguie Ge'nerale Transatlantique, 107 U. S. 59; Wiggins Ferry Co. r. East St. Louis, 107 U. S. 365; Brown r. Houston, 114 U. S. 022; Walling v. Michigan, 110 U. S.440; Coe r.Errol, 110 U. S. 517 ; Turpin v. Burgess, 117 U. S. 504 ; Collet v. Collet, 2 Dall. 2m. 1 Green r. Biddle, 8 Wheat. 1 ; Poole v. The Lessee of Fleeger, 11 Pet. 185 ; Virginia r. West Virginia, 11 Wall. 39; Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577 ; Inman Steamship Company v. Tinker, St4 U. S. 238; Transportation Co. v. Wheeling, i>9 U. S. 273; Packet Co. i'. St. Louis, 100 U. S. 423; Guy v. Baltimore, 100 U. S. 434; Packet Co. r Keokuk, 95 U. S. SO; Vicksburg v. Tobin, 100 U. S. 4,30; Packet Co. v. Catlettsburg, 105 U. S. .5.59 ; Transportation Co. v. Par- kersburg, 107 U. S. 091 ; Morgan v. Louisiana, 118 U. S. 455 ; Huse r. Glover, 119 U. S. 543; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Indiana v. Kentucky, 130 U. S. 479. 2Chisholm v. Georgia, 2 Dall. 419; Leitensdorfer r. Webb, 20 How. 176; Ex parte Siebold, 100 U. S. 371; In re Green, 134 U. S. 377. 696 APPENDIX. Appendix. The electors shall meet in their respective States, and The Constitution, yq^q \yy 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 ; 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 Certificates, and the Votes shall then be counted. The Person having 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 chuse by Ballot one 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 chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person hav- ing 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 chuse from them by Ballot the Vice President.' The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout tlie United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of Presi- dent ; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five 1 This clause has been superseded by the Twelfth Amendment. THE CONSTITUTION. 60' Years, and been fourteen Years a Resident within the Appendix. United States.^ '^^"^ Coustitution. 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 yice President, and the Congress may by Law provide for the Case of Removal, Death, Resigna- tion or Inability, both of the President and Vice Presi- dent, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disa- bility be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be en- creased 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. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation : — "I do solemnly swear (or affirm) that I will faithfully exe- cute 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. 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 Pardons for Offences against the United States, except in Cases of Impeachment.^ 1 English r. The Trustees of the Sailors' Snui: Harbor, 3 Pet. 99. 2 Houston r. Moore, 5 Wheat. 1 ; United States r. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307; Ex parte Garland, 4 Wall, o.m; Arm- strong's Foundry, (! Wall. 7t)6 ; Texas v. White, 7 Wall. 700 : The Grape- shot, 9 Wall. 129 ; United States r. Padelford, 9 Wall. 531 ; United States r. Klein, 13 Wall. 128; Armstrong r. United States, 13 Wall. 154: Par- goud r. United States, 13 Wall. 15(3; Hamilton v. Dillin. 21 Wall. 73; Mechanics and Traders' Bank v. Union Bank, 22 Wall. 27(!; Lamar u. Browne, 92 U. S. 187 ; Wallach v. Van Riswick, 92 U. S. 202 ; In re Neagle, 135 U. S. 1. 698 APPENDIX. Appendix. He shall have Power, by and with the Advice and Con- The Constitution, ggj^^ Qf h^q 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 vest 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.' 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 Session.'' Section. 3. 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 ; he may, on extraor- dinary Occasions, 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 Am- bassadors and other public Ministers ; he shall take Care that the Laws be faithfully executed, and shall Commis- sion all the Officers of the United States.^ Section. 4. The President, Vice President and all civil 1 Ware v. Hylton, 3 Dall. 199; Marbury v. Madison, 1 Crancli, 137; United States v. Kirkpatrick, 9 Wheat. 720; American Insurance Com- pany V. Canter (;35() bales cotton) , 1 Pet. 511 ; Foster and Ehim t\ Neilson, 2 Pet. 253 ; Cherokee Nation v. State of Georgia, 5 Pet. 1 ; Patterson v. Winn, 5 Pet. 233 ; Worcester v. State of Georgia, 6 Pet. 515 ; City of New Orleans v. De Armas, 9 Pet. 224; United States v.L.e Baron, 19 How. 73; Holdeu v. Joy, 17 Wall. 211; United States v. Germaine, 99 U. S. 508 ; Ex parte Siebold, 100 U. S. 371 ; United States v. Arjona, 120 U. S. 479; In re Neagle, 135 U. S. 1. 2 The United States v. Kirkpatrick, 9 Wheat. 720 ; In re Neagle, 135 U. S. 1. 3 Marbury v. Madison, 1 Cranch, 137 ; Kendall v. United States, 12 Pet. 524; Luther v. Borden, 7 How. 1; Mississippi v. Johnson, President, 4 Wall. 475; Stewart v. Kahn, 11 Wall. 493; In re Neagle, 135 U. S. 1. THE CONSTITUTION. G99 Officers of the United States, shall be removed from Appendix. Office on Impeachment for, and Conviction of. Treason, '^"^^'^ Constitution. Bribery, or other high Crimes and Misdemeanors. AKTICLE. III. Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congi-ess may from time to time ordain and establish. The Judges, both of the siipreme and inferior Courts, shall liold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, wliich shall not be diminished during their Continuance in Office.' Section. 2. 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 Ambassadors, other public IVIinisters and Consuls ; — to all Cases of admiralty and maritime Juris- diction ; — 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 Citi- zens 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.^ 1 Chisholm v. Georgia, 2 Dall. 419; Stnart v. Laird, 1 Cranch, 299; United States r. Peters, 5 Craiich, 115; Duroussean v. United States, 6 Cranch, 308; Martin v. Hunter's Lessee, 1 Wheat. .'504; Cohens ?'. Vir- ginia, 6 Wheat. 261; Osborn v. United States Bank, 9 Wheat. 7.38; Benner v. Porter, 9 How. 2.3.5 ; United States v. Ritchie, 17 How. 525 ; Murray's Lessee v. Hoboken Land and Improvement Co., IX Ilow. 272; Ex parte Vallandigham, 1 Wall. 243; The Grapeshot, 9 Wall. 129; Me- chanics' and Traders' Bank v. Union Bank of Louisiana, 22 Wall. 27(5; United States v. Union Pacific Railroad, 98 U. S. 5tJ9; Ames v. Kansas, 111 U. S. 449 ; In re Loney, 134 U. S. 372. 2 United States v. Ravara, 2 Dall. 297; Georgia ?'. Brailsford, 2 Dall. 402; Haybnrn's Case (note), 2 Dall. 410; Oswald /'. New York, 2 Dall. 415; Chisholm v. Georgia, 2 Dall. 419; Glass v. Sloop Betsey, 3 Dall. 6; Bingham v. Cabott, 3 Dall. 19; Penhallow i\ Doane's Administrator, 3 Dall. 54; United States v. La Vengeance, 3 Dall. 297 ; Hollingsworth v. 700 APPENDIX. Appendix. In all Cases affecting Ambassadors, other public Min- The Constitution, jg^ers and Consuls, and those in which a State shall be 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- Virginia, 3 Dall. 378; Mossman v. Higginson, 4 Dall. 12; Abercrombie V. Diipuis, 1 Cranch, 343; Marbury v. Madison, 1 Craucli, 137; Hepburn V. Ellzey, 2 Cranch, 444; United States v. Moore, 3 Cranch, 159; Straw- bridge V. Curtiss, 3 Cranch, 2(J7; Ex parte Bollman, 4 Cranch, 75; Rose V. Himely, 4 Cranch, 241 ; Chappedelaine v. Dechenaux, 4 Cranch, 306; United States ■?;. Schooner Betsey, 4 Cranch, 443; Hope Insurance Company v. Boardmau, 5 Cranch, 57 ; Bank of United States ?;. 13eveaux, 5 Cranch, til; Hodgson v. Bovverbank, 5 Cranch, .303; Owiugs v. Nor- wood's Lessee, 5 Cranch, 344 ; Durousseau v. The United States, (I Crauch, 307; United States v. Hudson and Goodwin, 7 Cranch, 32; Town of Pawlet V. Clark, 9 Cranch, 292; Martin v. Hunter's Lessee, 1 Wheat. 304; United States v. Coolidge, 1 Wheat. 415; Colson v. Lewis, 2 Wheat. 377 ; Gelston v. Hoyt, 3 Wheat. 246 ; United States v. Bevaus, 3 Wheat, 33(5; Houston u. Moore, 5 Wheat. 1; Cohens v. Virginia, t! Wheat. 2M; Ex parte Kearney, 7 Wheat. .38 ; Matthews v. Zane, 7 Wheat. 1(J4; Osborn V. United States Bank, 9 Wheat. 738; United States v. Ortega, 11 Wheat. 467; American Insurance Company v. Canter (.356 bales of cotton), 1 Pet.511 ; Jackson v. Tweutyman, 2 Pet. 136; Cherokee Nation v. Georgia, 5 Pet. 1; New Jersey v. New York, 5 Pet. 283; Worcester v. Georgia, 6 Pet. 515 ; Davis v. Packard, 6 Pet. 41 ; United States v. Arredondo, 6 Pet. 691; Davis v. Packard, 7 Pet. 276; Breedlove v. Nicolet, 7 Pet. 413; Brown v. Keene, 8 Pet. 112 ; Davis v. Packard, 8 Pet. 312 ; City of New Orleans v. De Armas, 9 Pet. 224; Rhode Island v. Massachusetts, 12 Pet. 657; Bank of Augusta r. Earle, 13 Pet. 519; Commercial and Railroad Bank of Vicksburg v. Slocomb, 14 Pet. CO; Suydam v. Broadnax, 14 Pet. 67; Prigg v. Pennsylvania, 1(> Pet. 539; Louisville, Cincinnati and Charleston Railroad Co. ?>. Letson, 2 How. 497 ; Cary v. Curtis, 3 How. 236 ; Waring i'. Clark, 5 How. 441 ; New Jersey Steam Navigation Co. V. Merchants' Bank, 6 How. 344; Luther v. Borden, 7 How. 1; Sheldon V. Sill, 8 How. 441; The Propeller Genesee Chief v. Fitzhugh, 12 How. 443; Fretz v. Bull, 12 How. 466; Neves v. Scott, 13 How. 268; Pennsyl- vania V. The Wheeling &c. Bridge Company, 13 How. 518; Marshall v. Baltimore and Ohio Railroad Co., 16 How. 314; United States v. Guthrie, 17 How. 284; Smith v. Maryland, 18 How. 71 ; Jones v. League, 18 How. 76; Murray's Lessee v. Hoboken Land and Improvement Company, 18 How. 272; Dodge v. Woolsey, 18 How. 331; Dred Scott v. Sandford, 19 How. 393; Hyde v. Stone, 20 How. 170; Jackson v. Steamboat Magnolia, 20 How. 29r); Irvine v. Marshall, 20 How. 558; Fenn v. Holme, 21 How. 481; Morewood ?'. Enequist, 23 How. 491; Kentucky v. Dennison, Gov- ernor, 24 How. 66; Ohio and Mississippi Railroad Company ii. Wheeler, 1 Black, 286; The Steamer Saint Lawrence, 1 Black, 522 ; The Propeller Commerce, 1 Black, 574; Ex parte Vallandigham, 1 Wall. 243; Ex parte Milligan, 4 Wall. 2; The Moses Taylor, 4 Wall. 411 ; Mississippi v. John- son, President, 4 Wall. 475; The Hine v. Trevor, 4 Wall. 555; Philadel- THE CONSTITUTION". 701 and Fact, with sucli Exceptions, and under such Regula- Appendix, tions as the Congress shall make.' '^''"» Constitution. 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 com- mitted ; but when not committed within any State, the phia V. The Collector, 5 Wall. 720 ; Georgia v. Stanton, 6 Wall. 50; Payne V. Hook, 7 Wall. 42.5; The Alicia, 7 Wall. .571 ; Cowles ?'. Mercer County, 7 Wall. 118; The Belfast, 7 Wall. ()24; Ex parte Yerger, 8 Wall. 85; Insurance Company r. Dunham, 11 Wall. 1; Virginia v. West Virginia, 11 Wall. :«t; Coal Co. v. Blatcliford, 11 Wall. 172; Railway Co. v. Whit- ton's Adni., 13 Wall. 270; Tarble's Case, 13 Wall. 3i)7; Blyew i-. United States, 13 Wall. 581; Davis v. Gray, l(j Wall. 203; Steamboat Co. v. Chase, Hi Wall. 522 ; Case of the Sewing Machine Companies, 18 Wall. 553; Insurance Co. v. Dunn, 19 Wall. 214; The Mohler, 21 Wall. 230; Insurance Company v. Morse, 20 Wall. 445; Vannevar v. Bryant, 21 Wall. 41; The Lottawanna, 21 Wall. .558; Gaines v. Fuentes, 92 U.S. 10 ; Muller v. Dows, 94 U. S. 444 ; Doyle v. Continental Insurance Com- pany, 94 U. S. 535 ; United States v. Hall, 98 U. S. 343 ; United States v. Union Pacific Railroad Co., 98 U. S. 509; Tennessee v. Davis, 100 U. S. 257; Expurte Boyd, 105 U. S. 647; New Hamp.shire v. Louisiana, 108 U. S. 76; New York v. Louisiana, 108 U. S. 7(); Johnson v. Chicago &c. Elevator Co., 119 U. S. 388 ; Barron v. Burnside, 121 U. S. 180 ; De Saus- sure ?'. Gaillard, 127 U. S.21(); Wisconsin v. Pelican Insurance Co., 127 U. S. 265; Hans v. Louisiana, 1.34 U. S. 1; Johnson v. Risk, 137 U. S. 300; Cook County v. Calumet &c. Canal & Dock Co., 138 U. S. 635. 1 Chisholm v. Georgia, 2 Dall. 419; Wiscart v. Dauchy, 3 Dall. 321 ; Marbury ?'. Madison, 1 Cranch, 1.37; Ex parte Bollman, 4 Cranch,75; Durousseau ?>. United States, 6 Cranch, .307 ; Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264; Ex parte Kearney, 7 Wheat. 38 ; Wayman t\ Southard, 10 Wheat. 1 ; Bank of the United States V. Halstead, 10 Wheat. 51 ; United States v. Ortega, 11 Wheat. 467 ; The Cherokee Nation v. Georgia, 5 Pet. 1; Ex parte Crane, 5 Pet. 189; New Jersey v. New York, 5 Pet. 283; Davis v. Packard, 7 PeL 27(j; Ex parte Sibbald v. United States, 12 Pet. 488 ; Rhode Island v. Massachusetts, 12 Pet. 657; Pennsylvania v. The Wheeling &c. Bridge Company, 13 How. 518; In re Kaine, 14 How. 103; Ableman r\ Booth; United States V. Booth, 21 How. 506; Ex parte Vallandingham, 1 Wall. 243; Kentucky V. Dennison, 24 How. 6(5; Freeborn v. Smith, 2 Wall. 160; Ex parte McCardle, 6 Wall. 318; Ex parte McCardle, 7 Wall.50(5; Texas v. White, 7 Wall. 700; Ex parte Yerger, 8 Wall. 85; The Lucy, 8 Wall. 307; The Justices V. Murray, Wall. 274 ; Pennsylvania v. Quicksilver Company, 10 Wall. .553; Virginia r. West Virginia, 11 Wall. 39; Murdock c. City of Memphis, 20 Wall. 590 ; Tennessee v. Davis, 100 U. S. 257 ; The Francis Wright, 105 U. S. 381; Bors v. Preston, 111 U. S. 252; Ames v. Kansas, 111 U. S. 449 ; Wisconsin v. Pelican Insurance Co., 127 U. S. 265 ; /?i re Baiz, 135 U. S. 403. 702 APPENDIX. Appendix. Trial shall be at such Place or Places as the Congress The Constitution, j^^y by Law have directed.^ Section. 3. 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 Per- son shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.^ Tlie Congress shall have Power to declare the Punish- ment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.^ AKTICLE. IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Pro- ceedings 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.* ^ United States v. Dawson, 15 How. 467 ; United States v. Jackalow, 1 Black, 484; Ex jmrte Milligan, 4 Wall. 2; Callan v. Wilson, 127 U. S. 540 ; Nashville, Chattanooga &c. Railway Co. v. Alabama, 128 U. S. 96 ; Eilenbecker v. District Court of Plymouth County, 134 U. S. 32 ; Jones V. United States, 137 U. S. 202; Cook v. United States, 1.38 U. S. 157. 2 United States v. The Insurgents, 2 Dall. 335; United States v. Vigol, 2 Dall. 34(); United States v. Mitchell, 2 Dall. 348; Ex purte Boll- man and Swartwout, 4 Cranch, 75; United States v. Aaron Burr, 4 Cranch, 470. 3 Bigelow V. Forest, 9 Wall. 339 ; Day v. Micou, 18 Wall. 15G ; Ex parte Lange, 18 Wall. 163; Wallach v. Van Riswick, 92 U. S. 202. 4 Armstrong v. Carson's Executors, 2 Dall. 302 ; Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat. 2.34; Mayhew v. Thatcher, 6 Wheat. 129; Darby's Lessee u. Mayer, 10 Wheat. 465; United States V. Aniedy, 11 Wheat. 392; Caldwell v. Carrington's Heirs, 9 Pet. 86; M'Elmoyle v. Cohen, 13 Pet. 312; Bank of Augusta v. Earle, 13 Pet. 519; Bank of the State of Alabama v. Dalton, 9 How. 522; D'Arcy v. Ketchum, 11 How. 165 ; Kentucky v. Dennison, Governor, &c., 24 How. 66; Christmas v. Russell, 5 Wall. 2StO; Green v. Van Buskirk, 7 Wall. 139; Paul v. Virginia, 8 Wall. 168; Cheever v. Wilson, 9 Wall. 108; Board of Public Works v. Columbia College, 17 Wall. 521; Thompson V. Whitman, 18 Wall. 457; Bonaparte v. Tax Court, 104 U. S. 592; Rob- ertson V. Pickrell, 108 U. S. 608; Hanley v. Donoghue, 116 U. S. 1; THE CONSTITUTION. 703 SECTTO>r. 2. The Citizens of each State shall be en- Appendix, titled to all Privileges and Imnmnities of Citizens in the '^''^ Constitution, several States.^ A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.^ No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be dis- charged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Ser- vice or Labour may be due.^ Section. 3. 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 ; Renaud v. Abbott, 116 U. S. 277 ; Chicago ifc Alton Railroad v. Wiggins Ferry Co., 119 U. S 615; Wisconsin v. Pelican Insurance Co., 127 U. S. 265; Cole v. Cunningham, 133 U. S. 107; Simmons v. Saul, 138 U. S. 439. 1 Bank of United States v. Deveaux, 5 Cranch, 61 ; Gassies v. Ballon, 6 Pet. 761; Rhode Island v. Massachusetts, 12 Pet. fw7 ; Tlie Bank of Augusta V. Earle, 13 Pet. 519; Moore v. The People of the State of Illi- nois, 14 How. 13; Dodge v. Woolsey, 18 How. 331 ; Conner v. Elliott, 18 How. 591; Dred Scott v. Sandford. 19 How. 393; Crandall v. Nevada, 6 Wall. 35; Woodruff i'. Parhani, 8 Wall. 123; Paul v. Virginia, 8 Wall. 168; Downham v. Alexandria Council, 10 Wall. 173; Ducat v. Chicago, 10 Wall. 410; Liverpool Insurance Company v. Massachusetts. 10 Wall. 566 ; Ward v. Maryland, 12 Wall. 418; Slanghterhonse Cases, 16 Wall. 36; Bradwell v. The State, 16 Wall. 130; Minor v. Happersett, 21 Wall. 1()2; Chemung Bank v. Lowery, 93 U. S. 72; McCready v. Virginia, 94 U. S. 391; United States v. Harris, 106 U. S. 629; Brown v. Houston, 114 U. S. 622; Pembina Consolidated Mining Co. ;;. Pennsylvania, 125 U. S. 181; Kimmish v. Ball, 129 U. S. 217; Cole v. Cunningham, 133 U. S. 107; Norfolk and Western Railroad Co. v. Pennsylvania, 136 U. S. 114 ; Min- nesota V. Barber, 136 U. S. 313. 2 Holmes 11. Jennison, 14 Pet. 540; Kentucky v. Dennison, Governor, 24 How. 66; Taylor v. Taintor, 16 Wall. 3()6; Robb v. Connolly, 111 U. S. 624. 8 Prigg V. Pennsylvania, 16 Pet. 539 ; Jones v. Van Zandt, 5 How. 215 ; Strader r. Graham, 10 How. 82 ; Moore v. The People of the State of Illi- nois, 14 How. 13; Dred Scott v. Sandford, 19 How. 393; Ableman v. Booth ; United States v. Booth, 21 How. 506. 704 APPENDIX. Appendix. nor any State be formed by the Junction of two or more The Constitution. States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.^ The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Terri- tory 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.^ Sectiox. 4. The United States shall guarantee to every State in this Union a Republican Form of Govern- ment, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Execu- tive (when the Legislature cannot be convened) against domestic Violence.* ARTICLE. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legisla- tures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified 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 1 American Insurance Company v. Canter (356 Bales of Cotton), 1 Pet. 511 ; Pollard's Lessee v. Hagan, 3 How. 212; Cross v. Harrison, 16 How. 164. 2 McCulloch V. Maryland, 4 Wheat. 316; American Insurance Com- pany V. Canter, 1 Pet. 511 ; United States v. Gratiot, 14 Pet. 526 ; United States V. Rogers, 4 How. 567; Cross v. Harrison, 16 How. 164; Mackey V. Coxe, 18 How. 100; Dred Scott v. Sandford, 19 How. 3[»3; Freeborn v. Smith, 2 Wall. 160; Gibson v. Chouteau, 13 Wall. 92; Clinton v. Engle- brecht, 13 Wall. iM; Beall v. New Mexico, 16 Wall. 535; United States w. Waddell, 112 U. S. 76; Van Brocklin v. Tennessee, 117 U. S. 151 ; Wis- consin Central Railroad Co. v. Price County, 133 U. S. 496; Mormon Church V. United States, 136 U. S. 1. 8 Luther v. Borden, 7 How. 1; Texas v. White, 7 Wall. 700; Minor v. Happersett, 21 Wall. 162. THE CONSTITUTION. 705 that no Amendment which may be made prior to the Appendix. Year One thousand eight hundred and eight shall in any '^^•^ Constitution. Manner affect the first and fourth Clauses in the Ninth Section of the first Article ; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE. VI. All Debts contracted and Engagements entered into, before the Adoi)tion of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.^ 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 Author- ity of the United States, shall be the supreme Law of the Land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.- 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.' 1 Dred Scott v. Sandford, 19 How. 393. 2 Hayburn's Case, 2 Dall. 409; Ware v. Hylton, 3 Dall. 199; Calder and Wife v. Bull and Wife, 3 Dall. 38(5; Marbury v. Madison, 1 Cranch, 137; Chirac v. Chirac, 2 Wheat. 259; McCulloch v. Maryland, 4 Wheat 316; Society v. New Haven, 8 Wheat. 464; Gibbons v. Oj;den, 9 Wheat 1; Foster and Elam v. Neilsou, 2 Pet. 253 ; Buckner v. Finley, 2 Pet. 58() Worcester t\ Georgia, 6 Pet. 515 ; Kennett v. Chambers, 14 How. 38 Dodge V. Woolsey, 18 How. 331; Dred Scott v. Sandford, 19 How. 393 New York v. Dibble, 21 How. 366 ; Ableman v. Booth ; United States v ■ Booth, 21 How. 506 ; Sinnot v. Davenport, 22 How. 227 ; Foster v. Daven port, 22 How. 244 ; Society for Savings v. Coite, 6 Wall. 594 ; Provident Institution v. Massachusetts, 6 Wall. 611; Haver v. Yaker, 9 Wall. 32 The Cherokee Tobacco. 11 Wall. 616; Hauenstein v. Lynham, 100 U. S, 483; Edye v. Robertson, 112 U. S. 580; Van Brocklin v. Tennessee, IIT U. S. 151 ; United States v. Rauscher, 119 U. S. 407 ; Whitney v. Robertson,. 124 U. S. 190; The Chinese Exclusion Case, 130 U. S. 5S1 ; In re Neagle,. 135 U. S. 1. 8 Dodge V. Woolsey, 18 How. 331; Ex parte Garland, 4 Wall. 333; In re Neagle, 135 U. S. 1. 706 APPENDIX. Appendix. The Constitution. AETICLE. VII. The Katification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. The word " the ", being in- terlined between the seventh and eighth Lines of the first Page, The Word " Thirty " being partly written on an Era- zure in the fifteenth Line of the first Page, The Words " is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word " the " being in- terlined between the forty third and forty fourth Lines of the second Page. [Note BV Printer. — The in- terlined and rewritten words, mentioned in the above ex- planation, are in this edition, printed in their proper places in the text.] Done in Convention by the Unani- mous Consent of the States pres- ent the Seventeenth Day of September in the Year of our Lord one thousand seven hun- dred and Eighty seven and of the Independance of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names, G« : WASHINGTON— Presidt. and deputy from Virginia Attest William Jackson Secretary New Hampshire Massachusetts Connecticut New York . . New Jersey Pennsylvania ■< Jo FIN Langdon > Nicholas Oilman > Nathaniel Gorham RuFus King Wm : Saml. Johnson Roger Sherman Alexander Hamilton WiL : Livingston David Brearley. Wm. Paterson. JoNA : Dayton B Franklin Thomas Mifflin RoBT. Morris Geo. Clymer Thos. Fitz Simons Jared Ingersoll James Wil.son Gouv Morris THE CONSTITUTION. 707 Delaware Maryland Virginia North Carolina South Carolina Georgia f Geo: Read Gunning Bedford jun John Dickinson RiCHAKD liASSETT , Jaco : Broom {James McHenry Dan of St Thos. Jenifer Danl Carroll ( John Blair — (. James Madison Jr. \Vm : Blount RiCHD. DOBBS SpAIGHT. Hu Williamson J. Rutledge Charles Cotesworth Pinckney Charles Pinckney ^ Pierce Butler. William Few Abr Baldwin Appendix. The Constitution. ARTICLES IN ADDITION TO, AND AMENDMENT OF CONSTITUTION OF THE UNITED STATES OF AMERICA, proposed by congress and ratified by the legisla- tures OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE CONSTITUTION. [Article I.]' Congress sliall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof ; 1 Terrett v. Taylor, 9 Cranch, 43 ; Yidal v. Girard, 2 How. 127 ; Ex parte Garland, 4 Wall. 333 ; United States v. Cruikshank, 02 U. S. 542 ; Rey- nolds V. United States, 98 U. S. 145; Presser v. Illinois, 116 U. S. 252; Spies t'. Illinois, 123 U. S. 131; Davis v. Beason, 133 U. S. 333; Eilen- becker v. District Court of Plymouth County, 134 U. S. 31 ; In re Neagle, 135 U. S. 1. 708 APPENDIX. Appendix. or abridging the freedom of speech, or of the press ; or The Constitution, the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [Article II.] A well regulated Militia, being necessary to the secu- rity of a free State, the right of the people to keep and bear Arms, shall not be infringed.^ [Article III.] Ko 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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.^ [Article V.] No person shall be held to answer 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; nor shall any person be subject for the same offence 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 1 Presser v. Illinois, 11(3 U. S. 252; Spies v. Illinois, 123 U. S. 131; Eilenbecker v. District Court of Plymouth County, 131 U. S. 31. 2 Spies V. Illinois, 123 U. S. 131 ; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31. 3 Smith V. Maryland, 18 How. 71 ; Murray's Lessee v. Hoboken Land and Improvement Company, 18 How. 272 ; E.r, parte Milligan, 4 Wall. 2; Ex parte Jackson, 96 U. S. 727; Boyd r. United States, IIG U. S. 010; Spies V. Illinois, 123 U. S. 131 ; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31. TUE CONSTITUTION. 701) deprived of life, liberty, or property, without due process Appendix. of law ; nor shall private property be taken for public '^'^^ tou»iitutiou. 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 ascertained 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 defence,^ 1 Houston V. Moore, 5 Wheat. 1 ; United States v. Perez, 9 Wheat. 579; Barron v. The City of Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410; West River Bridge Company r'. Dix, G How. 507; Mitchell ?». Har- mony, 13 How. 115 ; Moore v. The People of the State of Illinois, 14 How. 13; Murray's Lessee v. Hoboken Land and Improvement Company, 18 How. 272 ; Dynes v. Hoover, 20 How. 05 ; Withers v. Buckley, 20 How. 84; Oilman v. The City of Sheboygan, 2 Black, 510; Ex parte Milligan, 4 Wall. 2; Twitchell v. The Commonwealth, 7 W^ill. 321; Hepburn v. Griswold, 8 Wall. 603; Miller v. United States, 11 Wall. 2(J8; Legal Tender Cases, 12 Wall. 457 ; Pumpelly v. Green Bay Co., 13 Wall. 166; Osborn v. Nicholson, 13 Wall. 654 ; Ex parte Lange, 18 Wall. 163; Minor V. Happersett, 21 Wall. 162; The Mohler, 21 Wall. 230; Secombe v. Mil- waukee & St. Paul Railroad Co.. 23 Wall. 108; Kohl v. United States, 91 U. S. 367 ; Davidson v. New Orleans, {Hi U. S. 97 ; Sinking Fund Cases, 99 U. S. 700 ; Transportation Co. v. Chicago, 99 U. S. 635 ; Kelly v. Pitts- burgh, 104 U. S. 78; United States v. Lee, 106 U. S. 196; Ex parte Wall, 107 U. S. 265; United States v. Jones, 109 U. S. 513; Ex parte V/ihon, 114 U. S. 417; Boyd v. United States, 116 U. S. 616; Mackin v. United States, 117 U. S. 348; Ex parte Bain, 121 U. S. 1; Parkin.son v. United States, 121 U. S. 281 ; Spies v. Illinois, 123 U. S. 131 ; Callau v. Wilson, 127 U. S. 540; United States v. De Walt, 128 U. S. 393; Eilenbecker v. District Court of Plymouth County, i;54 U. S. 31 ; Louisville and Nash- ville Railroad Co. v. Woodson, 134 U. S. 614; Cherokee Nation v. South- ern Kansas Railway, 135 U. S. CAl ; In re Kemmler, 136 U. S. 43(J. 2 United States v. Cooper, 4 Dall. 341; United States r. Coolidge, 1 Wheat. 415; Ex parte Kearney, 7 Wheat. .38; United States v. Mills, 7 Pet. 142; Barron v. City of Baltimore. 7 Pet. 243; Fox v. Ohio, 5 How. 410; United States v. Dawson, 15 How. 467; Withers v. Buckley, 20 How. 84; United States v. Jackalow, 1 Black, 484; Ex parte Milligan, 4 Wall. 2; Twitchell v. The Commcmwealth, 7 Wall. 321; Miller r. United States, 11 Wall. 268: United States v. Cook, 17 Wall. 168; Walker v. Sauvinet, 92 U. S. 90 ; United States v. Cruikshank, 92 U. S. 710 APPENDIX. Appendix. [Article VII.] The Coustitution. j^ ^^.^^ ^^ common law, where the value in contro- versy 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.^ [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 re- tained by the people.^ [Article X.] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, or to the people.* 542; Reynolds v. United States, 98 U. S. 145; United States v. Union Pacific Railroad, 98 U. S. 569 ; Hayes v. Missouri, 120 U. S. 68 ; Spies v. Illinois, 123 U. S. 131; Brooks v. Missouri, 124 U. S. 394; Callan v. Wilson, 127 U. S.540; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31 ; Jones v. United States, 137 U. S. 202 ; Cook v. United States, 138 U. S. 157. 1 United States v. La "Vengeance, 3 Dall. 297 ; Whelan v. United States, 7 Cranch, 112; United States v. Schooner Betsey, 4 Cranch, 443; Bank of Columbia v. Okely, 4 Wheat. 235; Bank of Hamilton v. Dudley's Heirs, 2 Pet. 492; Parsons v. Bedford, 3 Pet. 433; Lessee of Livingston V. Moore, 7 Pet. 469; Webster v. Reid, 11 How. 437; Pennsylvania v. The Wheeling &c. Bridge Co., 13 How. 518; Dodge v. Woolsey, 18 How. 331 ; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliot, 21 Wall. 532; Walker v. Sauvinet, 92 U. S. 90 ; Pearson v. Yewdall, 95 U. S. 294 ; McEl- rath V. United States, 102 U. S. 426; Barton v. Barbour, 104 U. S. 126; Spies V. Illinois, 123 U. S. 131; Arkansas Land and Cattle Co. v. Mann, 130 U. S. 69; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31. 2 Pervear v. Commonwealth, 5 Wall. 475; Spies v. Illinois, 123 U. S. 131; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; In re Kemmler, 136 U. S. 436. 3 Lessee of Livingston v. Moore, 7 Pet. 469; Spies v. Illinois, 123 U. S. 131. 4 Chisholm v. Georgia, 2 Dall. 419; Hollingsworth v. Virginia, 3 Dall. 378; Martin v. Hunter's Lessee, 1 Wheat. 304; McCulloch v. Maryland, THE CONSTITUTION. 711 [Article XI.] The Judicial power of the United States shall not be Appendix, construed to extend to any suit in law or equity, com- The Constitution, menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.' [AllTICLK XII.] 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 govern- ment of the United States, directed to the President of the Senate; — The President of the Senate shall, in pres- 4 "Wheat. 316 ; Anderson v. Dunn, 6 Wheat. 204 ; Cohens v. Virginia, 6 Wheat. 264; Osborn w. United States Bank, 9 Wheat. 738; Buckner v. Finley, 2 Pet. 58G; Dodge v. Woolsey, 18 How. 3ol ; Ableman v. Booth, 21 How. 50(5; The Collector v. Day, 11 Wall. 113; Clatiin v. Houseman, 93 U. S. 130 ; Innian Steamship Co. v. Tinker, 94 U. S. 238 ; United States V. Harris, 10() U. S. G29 ; Civil Rights Cases, 109 U. S. 3 ; Spies v. Illinois, 123 U. S. 131. 1 Georgia v. Brailsford rt al., 2 Dall. 402 ; Chisholm v. Georgia, 2 Dall. 419; Hollingsworthr. Virginia, 3 Dall. 378; Bingham v. Cabot, 3 Dall. 382; United States v. Peters, 5 Cranch, 115; Cohens v. Virginia, 6 Wheat. 2()4; Osborn v. United States Bank, 9 Wheat. 738; United States Bank v. The Planters' Bank, 9 Wheat. iK)4; The Governor of Georgia v. Juan ^Nladrazo, 1 Pet. 110 ; Cherokee Nation v. Georgia, 5 Pet. 1 ; Briscoe ik The Bank of the Commonwealth of Kentucky, 11 Pet. 257 ; Curran ik Arkansas, 15 How. 304; Davis v. Gray, 10 Wall. 203; Ten- nessee V. Davis, 100 U. S. 257 ; Xew Hampshire f. Louisiana, 108 U. S. 76; New York ?-. Louisiana, 108 U. S. 76; Clark v. Barnard, 108 U. S. 4;W; Virginia Coupon Cases, 114 U. S. 269; Hagood v. Southern, 117 U. S. 52; Rolston v. Missouri Fund Commissioners, 120 U. 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