UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
Lawrence
CASES
ON
EDITED BY
CARL 'E ' PH.D
CHICAGO:
CALLAGHAN & COMPANY,
PUBLISHERS,
1898.
T
v i r?
Entered according to Act. of Congress, in the year 1898,
By CA1.LAGHAN & COMPANY,
In the Office of the Librarian Af. Congress, at Washington, D.
lUt/v^
Composition by
The Brown-Cooper Typesetting Co.
Chicago.
PREFACE.
In making this collection of cases, it was not my purpose to at-
tempt to rival the notable collection of Professor Thayer. I have
had the more modest design o'f bringing together within the com-
pass of a single volume a sufficient number of the leading decisions
of the Supreme Court of the United States on constitutional
law to form the basis of a course in that subject. The so-called
"case system" of study is applied to almost all branches of the law,
but its application to constitutional law has been retarded by the
obvious impracticability of referring a class to tae original reports
and by the want of a suitable ease book o? moderate size. It is to
meet such requirements tnat th ; s collection has- been formed.
A work of this kind is, necessarily a ccm;yornise between the de-
sirable and the attainable. The exigencies of space have compelled
me to exclude numerous instructive decisions which many persons
may expect to find and which I would have been glad to print. For
the further economy of space, arguments have been omitted
and the notes are few. It seemed that the pages required for these
features could be more profitably devoted to decisions which must
otherwise be excluded.
As to the text of the cases, all the decisions from December
Term, 1855, (18 Howard), have been taken from the official reports.
Cases decided before 18 Howard are taken from Curtis' Decisions
of the Supreme Court of the United States. The cases are re-
printed verbatim et literatim except that certain parts, particularly
statements of facts, have been shortened, and matter not necessary
iii
iV PREFACE.
to the elucidation of the constitutional question involved has been
omitted. These changes have been indicated in the usual manner.
The date which has been assigned to each decision is, as a rule,
the year in which the term began at which the decision was made.
This applies to all the cases decided prior to October Term, 1882,
(108 U. S.), except the Dred Scott case, the Prize Cases, Hepburn
v. Griswold, and the Legal Tender Cases. The relation of these
decisions to contemporary affairs made their exact date important.
It is to be regretted that the Reports of the Supreme Court prior
to 1882 do not indicate the day on which each decision was
rendered.
Professor Thayer has greatly facilitated my work by permitting
me to use the sheets of his Cases as manuscript for the printer. It
is also due to him to say that I was familiar with his comprehensive
collection long before I began making this one. How far this
fact may have influenced my selection of cases and my method of
treating them cannot be determined. A general acknowledgment
of indebtedness must therefore suffice. In this connection, I
would also express my oblfgajions for the many helpful suggestions
which I have received, from*. Head Professor Judson and Dr. Ernst
Freund of the l T hivers,rtA)f.Cliieagfc>..* /*
.."*"*/. /* ;\; .CARL EVANS BOYD.
Chicago, April 25,.^^ ..*.'* v> //vV .*
TABLE OF CONTENTS.
I. THE VALIDITY OF LEGISLATION
Marbury v. Madison 17
II. TAXATION
Hylton v. United States 2G
McCuIloch y. Maryland 32
Weston v. Charleston 41
License Tax Cases 45
Crandall v. Nevada -. 49
Veazie Bank v. Fenno 5i>
The Collector v. Day G 1
State Tonnage Tax Cases 60
Loan Association v. Topeka 78
Springer vrTThitecT StlaTesT 85
Pollock v. Farmers' Loan and Trust Co 91
III. MONEY
Craig v.^Mis&ouri 101
Briscoe v. Bank of Kentucky 108
Hepburn v. Griswold 113
LegalJEender Cases 138
Juilliard y. Greenmau 157
IV. COMMERCE
Gibbons v. Ogden , 172
Brown v. Maryland 192
License Cases 294
Passenger Cases 210
Cooley v. Wardens of the Port 235
Case of the State Freight Tax 24G
Pensacola Telegraph Co. v. Western Union Telegraph Co.. 255
Gloucester Ferry Co. v. Pennsylvania 259
Leisy" v. Hardin 2!>9
Minnesota v. Barber 231
V. THE POLICE POWER
Munn_ v\_Illinois 289
Escanaba Co. v. Chicago 299
VI. GENERAL (IMPLIED) POWERS
McCulloch v. Maryland 308
v
vi TABLE OF CONTENTS.
vii. EXECUTIVE POWERS-
EX parte Garlara 324
In re Neagle 325
VIII. WAR. MARTIAL LAW
Martin v. Mott 338
The Prize Cases 342
Ex parte Milligan 351
IX. EX POST FACTO LAWS AND BILLS OF ATTAINDER
CaJdBE_4^-Sull 372
Cummings v. Missouri 381
X. IMPAIRMENT OF CONTRACTS
Fletchor v. Peck ....... , .................................. 395
Sturges v. Crowninshield .................................. 405
College v. Woodward ......................... 412
Ogden v. Saunders ........................................ 431
Charles__River Bridge y. Warren Bridge ................... 451
XI. CIVIL AND POLITICAL RIGHTS
Barren v. Baltimore ...................................... 467
Scott v. Sandford ......................................... 471
Slaughter House Cases .................................... 491
Straudsr v. West Virginia ................................. 511
Civil Rights Cases ........................................ 518
Hurtado v. California ..................................... 534
United States v. Kagama ................................. 543
XII. THE FEDERAL GOVERNMENT AND THE STATES
Texas v. White. .......................................... 552
Tarble's Case ............................................ 563
Ex parte Siebold .......................................... 571
XIII. INTERNATIONAL RELATIONS. INDIAN AFFAIRS
American Insurance Co. v. Canter ........................ 583
Cherokee Nation v. Georgia ............................... 584
Worcester v. Georgia ..................................... 590
Fong Yuc Ting v. United States ........................... 595
XIV. JURISDICTION OF THE FEDERAL COURTS
Chisholm v. Georgia ................. ; .................... 603
Martin v. Hunter's Lessee ................................ 616
Cohens v. Virginia ........................................ 627
United States v. Texas .................................... 637
XV. POLITICAL QUESTIONS
Luther v. Bcrden ......................................... 647
Mississippi v. Andrew Johnson ............................ 652
XVI. ENFORCEMENT OF EXECUTIVE POWER BY JUDICIAL
PROCESS
Inre_Debs ...................... . 659
TABLE OF CASES.
Ableman v. Booth 565, 568
Alabama v. Georgia 640
Aldnutt v. Inglis 292
Alexander v. Railroad 71, 75
Allen v. Inhabitants of Jay 81
Almy v. California 253
American Ins. Co. v. Canter. .
547, 583
Amy Warwick, The 342
Apsden v. Austin 151
Assignees of Topham v. Chap-
man 446
Austria v. Day 168
Baker v. Wheaton
Ballantine v. Golding
Bank v. Supervisors
of Columbia v. Okely
of Commerce v. New York
City
of Kentucky v. Wistar. . . .
of U. S. v. Planters' Bank.
Banks v. Mayor
Bank Tax Case
Barbier v. Connolly
Barrington v. Potter
Barron v. Baltimore
Bartemeyer v. Iowa
Bayard v. Singleton
Beaty v. Lessee of Knowles...
Beer Co. v. Massachusetts
Benedict v. Vanderbilt
Bolt v. Stennett
Bonham's Case
Bowman v. C. & N. W. Rail-
way Co 273, 276,
Bowman v. Middleton
Boyle v. Reading R. R. Co
Brilliante, The
Briscoe v. Bank of Kentucky.
108, 155, 169
Bronson v. Rodes 120, 122
Brown v. Houston 271, 278
v. Levee Commissioners.. 542
v. Piper 283
v. Maryland ....54, 76, 192,
206, 208, 210, 220, 270,
272, 273, 279
v. United States 31V
Burrows v. Jamineau 447
Butler v. Horwitz 120
446 Calder v. Bull 372
445 Camden v. Allen 84
166 Chae Chan Ping v. United
537 States 596, 601
Charles River Bridge v. War-
247 ren Bridge 451
117 Cherokee Nation v. Georgia
117 547, 549, 584, 638, 639
166 Chirac v. Chirac 217
247 Chisholm v. Georgia 603
307 City of New York v. Miln
151 216, 220, 224, 495
467 Civil Rights Cases 518
278 Clarke v. P. W. & B. R. R. Co. 249
24 Coffin v. Landis 151
459 Cohens v. Virginia 139, 239,
278 356, 595, 627, 642
75 Collector v. Day 61
292 Commonwealth v. Alger 494
539 v. Caton 24
v. Smith 137
279 Cook v. Pennsylvania 277
24 Cooley v. Board of Wardens
248 52, 75, 235, 252, 271, 307, 572
342 Corfield v. Coryell 505
vii
viii
TABLE OF CASES.
Craig v. Missouri. 101,110,
116, 164, 169
Crandall v. Nevada 49, 252,
253, 507
Crenshaw, The 342
Cumberland Valley R. R. Co.'s
Appeal 248
Cummings v. Missouri 381
Daniel Ball, The 302
Dartmouth College v. Wood-
ward 412
Davidson v. New Orleans 540
Dobbins v. Brown 152
v. Commissioners of Erie
County 64, 65, 67
Dooley v. Smith 160
Dred Scott v. Sandford 471, 503
Dunn v. Sayles 151
Eakin v. Raub 24
Edye v. Robertson 600
Eilenbaker v. District Court of
Plymouth County 278
Escacaba Co. v. Chicago. .277, 299
Ex parte Bollman 354
Crew Dog 549
Garland 324, 394
Milligan 351
Siebold 331, 571, 661
Virginia 522, 525
Watkins 354
Yarbrough 600
Faw v. Marsteller 151
Fellows v. Blacksmith et al. . . 551
Fisher v. Blight 143
Fletcher v. Peck.. 138, 386, 389, 395
v. Rhode Island 204
Florida v. Georgia 640
Fong Yue Ting v. U. S 595
Foster v. Davenport 72
v. Kansas 278
v. Neilson 600, 638, 658
Fowler v. Lindsey 645
Fcx v. Ohio.. . 575
Gaines v. Buford 388
Garcia v. Lee 638, 639
Gelston v. Hoyt 657
Georgia v. Stanton 658
Gibbons v. Ogden. . .72, 93, 153,
172, 201, 213, 216, 217,
220, 222, 226, 232, 252,
255, 265, 267', 270, 273,
274, 280, 495, 665.
Gilman v. Philadelphia 252,
303, 664, 665
Gloucester Ferry Co. v. Penn-
sylvania 259
Groves v. Slaughter 227
Hanson v. Vernon 81, 82, 84
Hans v. Louisiana 643, 644
Harrison v. Sterry 446
Hays v. Pacific Mail Steamship
Co 263, 265
Henderson v. Mayor of New
York.... 265, 270, 277,
282, 304
Hepburn v. Griswold. .118, 144,
155, 160, 166
& Dundas v. Ellzey 561
Hiawatha, The 342
Holmes v. Jennison 220, 356
v. Walton 24
Houston v. Moore 217, 220, 239
Howell v. Maryland 71.
Hunt v. Knickerbocker 107
Hunter v. Potts 445
Hurtado v. California 534
Hyde v. Continental Trust Co. 91
Hylton v. United States 26,
61, 87, 89, 90, 93
Indiana v. Kentucky 640
In re Adam 1 602
Debs 659
Neagle 325
Rapier 600
Jackson v. Lamphire 459
Jenkins v. Andover 83
Jones v. Robbing 535
v. United States.. . 658
TABLE OF CASES.
ix
Juilliard v. Greenman 157,
323, 600
Kalloch v. Superior Court 535
Kansas Indians, The 551
Kellogg v. Union Co 266
Kendall v. Stockton & Stokes. 655
Kennard v. Louisiana 540
Kentucky v. Dennison 576
Kidd v. Pearson 278
Kimmish v. Ball 278
Knox v. Lee 136, 156, 323, 597
Lane County v. Oregon 65,
120, 555, 661
Lau Ow Bew v. United States. 602
Lee Joe v. United States 595
Legal Tender Cases... 136, 160,
166, 169, 170, 597
Leisy v. Hardin 269, 807
License Cases 204, 275, 276,
279, 307
License Tax Cases 45, 307, 495
Loan Association v. Topeka78, 542
Logan v. United States 600
Lowell v. Boston 81
Luther v. Borden 369, 559, 647
Marbury v. Madison .. 17, 654, 655
Martin v. Hunter's Lessee. 138,
239, 616
v. Mott 338, 650
Maryland v. Railroad Co 160
Matter of Keeler 569
Mayor of New York 84
Severy 569
Turner 500
McConnell v. Hampden 369
McCulloch v. Maryland 32,
42, 45, 54, 64, 68, 76, 84,
92, 126, 138, 143, 146,
161, 163, 166, 171, 228,
263, 308, 496, 600, 644,
661.
M'Millan v. M'Neil 432
McReynolds v. Smallhouse 266
Minnesota v. Barber 281, 307
Mississippi v. Johnson 652
Missouri v. Iowa 640
v. Kentucky 640
v. Lewis 541
Mobile v. Kimball 261, 271,
277, 301
v. Yuille 293
Moore v. Illinois 575
Morgan Steamship Co. v. La.
Board of Health 278
Morgan v. Parham 263, 265
Mugler v. Kansas 278, 282, 307
Munn v. Illinois 289, 540
Murphy v. Ramsey 547
Murray's Lessee v. Hoboken
Land & Imp. Co 537
Nashville, &c. Railway Co. v.
Alabama 278
Nathan v. Louisiana 71, 76
National Bank v. United States 167
Nebraska v. Iowa 640
New Jersey v. New York 640
New Jersey Navigation Co. v.
Merchants' Bank 293
New York Indians, The 551
Nishimura Ekiu v. United
States 596, 600
Norris v. Boston 219, 230, 231
North Carolina v. Temple 643
Northern Liberties v. St. John's
Church 84
Ogden v. Saunders 431
Olcott v. Supervisors 83
Osborn v. United States Bank 166
Pacific Ins. Co. v. Soule 61,
89, 90
Packet Co. v. Catlettsburg 269
v. Keokuk 268
v. St. Louis 269
Palmer v. Commissioners of
Cuyahoga Co 306
Parker v. Davis 136
Parsons v. United States 337
Passenger Cases, The... 51, 52,
54, 72, 219, 250, 252
Patterson v. Kentucky 278, 286
Patton v. Nicholson . . .107
TABLE OF CASES.
Paul v, Virginia 261, 506
Pearson v. International Dis-
tillery 279
Peirce v. New Hampshire. .204, 276
Pennsylvania v. Standard Oil
Co 263
Pensacola Telegraph Co. v.
Western Union Tel.
Co 255
People v. Compagnie G6nerale
Transatlantique 282
v. Salem 83
Permoli v. First Municipality. 305
Perry v. Torrence 72
Phillips v. Detroit 283
v. Hunter 446
Podndexter v. Greenhaw 98
Pollard's Lessee v. Hagan 305
Pollock v. Farmers' Loan &
Trust Co 91
Pound v. Turck 303
Pray v. Northern Liberties... 84
Prigg v. Pennsylvania 239, 517
Prize Cases, The 342
Providence Bank v. Billings &
Pittman 459
Provident Bank v. Massachu-
setts 247
Railroad Co. v. Husen 270, 277
v. Johnson 160
v. Pennsylvania 263
Reading Railroad Co. v. Penn-
sylvania 246, 265
Rhode Island v. Massachusetts
640, 645
Robbins v. Shelby Taxing Dis-
trict 270, 271, 277, 286
Robinson v. Memphis & Char-
leston R. R. Co... 518,
519, 533
Rowan v. The State 535
Rutgers v. Waddington 24
Santissima Trinidad, The 346
Satterlee v. Matthewson 454
St. Louis v. The Ferry Co 263
Scholey v. Rew 89, 90
Searight v. Calbraith 170
Sennot v. Davenport 72
Sharpless v. Mayor of Phila-
delphia 81, 82, 84
Slaughter-House Cases. .. .307,
491, 513, 516
Smith v. Alabama 278
v. Shaw 369
v. Turner 219, 231
Society for Saving v. Coite.76, 247
Soon Hing v. Crowley 282
Spraigue v. Thompson 98
Springer v. United States 85
Springfield Bank v. Merrick.. 107
State Freight Tax Case... 246,
277, 286
State Tax on Railway Gross
Receipts 298
State Tonnage Tax Cases 9
State v. Charleston 75
v. Starling 536
v. Wapello Co 82
Steamship Co. v. Port Ward-
ens 74, 265
Stourbridge Canal v. Wheeling 457
Strader v. Graham 483, 484, 486
Strauder v. West Virginia 511
Stuart v. Laird 239
Sturges v. Crowninshield. .164,
217, 220, 243, 405, 432,
434, 439, 444
Tarble's Case 563
Tennessee v. Davis 331, 517
Texas v. White 156, 552
Thames Bank v. Lovell 266
Thorpe v. Rutland & Burling
ton R. R. Co 290, 495
Thurlow v. Massachusetts 204
Towboat Co. v. Bordelon 75
Transportation Co. v. Parkers-
burg 269, 278
Trevett v. Weeden 24
Turner v. Maryland 274
United States v. Arredondo...
459, 638, 639
v. Bell Telephone Co 664
TABLE OF CASES.
xi
United States v. Booth 565, 568
v. Cruikshank 522, 576
v. Daniel 355
v. DeWitt 495
v. Fisher 162
v. Harris 527
v. Holliday 657
v. Hughes 335
v. Kagama 543
v. Marigold 142,148, 575
v. Nichols 518, 519
v. North Carolina 642
v. Reese 517
v. Rogers 547
v. Ryan .518, 519, 533
v. San Jacinto Tin Co. 334, 664
v. Singleton 518, 519
v. Stanley 518, 519
v. Texas 637
Bank v. Bank of Georgia. 166
Vanderbilt v. Adams 266
Vanderheyden v. Young 341
Veazie Bank v. Fenno 56,
68, 89, 147, 166, 167
Vicksburg v. Tobin 269
Virginia v. Rives 522
v. West Virginia 640
Wabash, St. Louis, &c., Rail-
way v. Illinois 271, 277
Walker v. Savinet 540
Walling v. Michigan. .270, 278, 285
Ward v. Maryland 505
v. Smith 166
Warren v. Charlestown 98
Watson v. Bourne 445
v. Mercer 455
Webber v. Virginia. 278
Wells v. Nickles 334
Welton v. Missouri.. .261, 278, 304
Westervelt v. Gregg.' 536
Weston v. Charleston. . .41, 54,
64, 76, 166, 358
Whiting v. Fond du Lac... 81,
82, 83, 84
Whitney v. Robertson 601
Williams v. Suffolk Ins. Co 658
Willson v. Blackbird Creek
Marsh Co 216, 217,
220, 239, i>J3
Winney v. Whitesides 488
Wisconsin v. Pelican Ins. Co.
640, 643
Wong Quan v. United States.. 595
Woodruf v. Parham 253
Worcester v. Georgia. .549, 551, 590
Workman v. Mifflin.. . 152
AMERICAN CONSTITUTIONAL LAW.
THE CONSTITUTION OF THE UNITED STATES.
1 We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity, pro-
vide for the common defense, promote 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 I.
2 All legislative powers herein granted shall be vested in a
Congress of i;he United States, which shall consist of a Senate
and House of Representatives.
SECTION II.
8 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 requi-
site for electors of the most numerous branch of the State legis-
lature.
4 No person shall be a Representative who shall not have at-
tained 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.
5 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
1
g THE CONSTITUTION OF THE UNITED STATES.
shall be made within three years after the first meeting of the
Congress of the United States, and within every subsequent term
of ten years, in such manner as they shall by law direct. The
number of Representatives shall not exceed one for every thirty
thousand, but each State shall have at least one Representative;
and until such enumeration shall be made, the State of New
Hampshire shall be entitled to choose 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 Caro-
lina five, and Georgia three.
6 When vacancies happen in the representation from any State,
the executive authority thereof shall issue writs of election to fill
such vacancies.
7 The House of Representatives shall choose their Speaker and
other officers, and shall have the sole power of impeachment.
SECTION III.
8 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.
9 Immediately after they shall be assembled in consequence
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.
10 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.
11 The Vice-President of the United States shall be President
of the Senate, but shall have no vote, unless they be equally
divided.
12 The Senate shall choose their other officers, and also a Presi-
dent pro tempore in the absence of the Vice-President, or when
he shall exercise the office of President of the United States.
13 The Senate shall have the sole power to try all impeachments.
When sitting for that purpose, they shall be on oath or affirma-
tion. When the President of the United States is tried, the Chief
Justice shall preside: and no person shall be convicted without
the concurrence of two-thirds of the members present.
14 Judgment in cases of impeachment shall not extend further
than to removal from office, and disqualification to hold and enjoy
THE CONSTITUTION OF THE UNITED STATES.
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 IV.
15 The times, places, and manner of holding elections for Sen-
ators 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.
16 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 V.
17 Each house shall be the judge of the elections, returns, and
qualifications of its own members, and a majority of each shall
constitute a quorum to do business; but a smaller number may
adjourn from day to day, and may be authorized to compel the
attendance of absent members, in such manner, and under such
penalties, as each house may provide.
18 Each house may determine the rules of its proceedings, punish
its members for disorderly behavior, and with the concurrence of
two-thirds, expel a member.
19 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 yea and nays of the mem-
bers of either house on any question shall, at the desire of one-
fifth of those present, be entered on the journal.
20 Neither house, during the session of Congress, shall, with-
out 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 VI.
21 The Senators and Representatives shall receive a compensa-
tion for their services, to be ascertained by law and paid out of
the Treasury of the United States. They shall, in all cases except
treason, felony, and breach of the peace, be privileged from arrest
during their 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.
22 No Senator or Representative shall, during the time for which
he was elected, be appointed to any civil office under the authority
of the United States, which shall have been created, or the emolu-
ments whereof shall have been increased during such time; and
i THE CONSTITUTION OF THE UNITED STATES.
no person holding any office under the United States shall be a
member of either house during his continuance in office.
SECTION VII.
23 All bills for raising revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
amendments as on other bills.
24 Every bill which shall have passed the House of Representa-
tives and the Senate shall, before it becomes 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 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 respectively. If
any bill shall not be returned 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.
25 Every order, resolution, or vote to which the concurrence of
the Senate and House of Representatives may be necessary (except
on a question of adjournment) shall be presented to the President
of the United States; and before the same shall take effect, shall
be approved by him, or being disapproved by him, shall be repassed
by two-thirds of the Senate and House of Representatives, accord-
ing to the rules and limitations prescribed in the case of a bill.
SECTION VIII.
26 The Congress shall have power to lay and collect taxes, duties,
imposts, and excises, to pay the debts and provide for the common
defense and general welfare of the United States; but all duties,
imposts, and excises shall be uniform throughout the United
States;
27 To borrow money on the credit of the United States;
28 To regulate commerce with foreign nations and among the
several States, and with the Indian tribes;
29 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;
31 To provide for the punishment of counterfeiting the securi-
ties and current coin of the United States;
THE CONSTITUTION OF THE UNITED STATES. 5
32 To establish post-offices and post-roads;
33 To promote the progress of science and useful arts by secur-
ing for limited times to authors and inventors the exclusive right
to their respective writings and discoveries;
34 To constitute tribunals inferior to the Supreme Court;
35 To define and punish piracies and felonies committed on the
high seas and offenses against the law of nations;
36 To declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water;
37 To raise and support armies, but no appropriation of money
to that use shall be for a longer time than two years;
38 To provide and maintain a navy;
39 To make rules for the government and regulation of the land
and naval forces;
40 To provide for calling forth the militia to execute the laws
of the Union, suppress insurrections, and repel invasions;
41 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 respect-
ively the appointment of the officers, and the authority of train-
ing the militia according to the discipline prescribed by Con-
gress;
42 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 consent of the legis-
lature of the State in which the same shall be, for the erection
of forts, magazines, arsenals, dockyards, and other needful build-
ings; and
43 To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the Government of the United
States, or in any department or officer thereof.
SECTION IX.
44 The migration or importation of such persons as any of the
States now existing shall think proper to admit shall not be pro-
hibited 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.
45 The privilege 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.
46 No bill of attainder or ex post facto law shall be passed.
4T No capitation or other direct tax shall be laid, unless in
proportion to the census or enumeration hereinbefore directed to
be taken.
6 . THE CONSTITUTION OF THE UNITED STATES.
48 No tax or duty shall be laid on articles exported from any
State.
49 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.
50 No money shall be drawn from the Treasury but in conse-
quence of appropriations made by law; and a regular statement
and account of the receipts and expenditures of all public money
shall be published from time to time.
51 No title of nobility shall be granted by the United States;
and no person holding any office of profit or trust under them
shall, without the consent of the Congress, accept of any present,
emolument, office, or title, of any kind whatever, from any king,
prince, or foreign State.
52 No State shall enter into any treaty, alliance, or confedera-
tion; 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 impairing the obligation of contracts, or grant any title
of nobility.
53 No State shall, without the consent of Congress, lay any
imposts or duties on imports or exports, except what may be abso-
lutely 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 the
Congress.
54 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.
ARTICLE II.
SECTION I.
65 The executive power shall be vested in a President of the
United States of America. He shall hold his office during the
term of four years, and together with the Vice-President, chosen
for the same term, be elected as follows:
58 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 Representatives to which the State may
be entitled in the Congress; but no Senator or Representative, or
THE CONSTITUTION OF THE UNITED STATES. 7
person holding an office of trust or profit under the United States,
shall be appointed an elector.
57 [The electors shall meet in their respective States and vote
by ballot for two persons, of whom one at least shall not be an
inhabitant of the same State with themselves. And they shall
make a list of all the persons voted for, and of the number of
votes for each; which list they shall sign and certify, and trans-
mit sealed to the seat of 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 ap-
pointed; and if there be more than one who have such majority,
and have an equal number of votes, then the House of Repre-
sentatives shall immediately choose 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 choose the
President. But in choosing the President the votes shall be taken
by States, the representation from each State having one vote;
a quorum for this purpose shall consist of a member or members
from two-thirds of the States, and a majority of all the States
shall be necessary to a choice. In every case, after the choice of
the President, the person having the greatest number of votes of
the electors shall be the Vice-President. But if there should remain
two or more who have equal votes, the Senate shall choose from
them by ballot the Vice-President.] 1
68 The Congress may determine the time of choosing the elect-
ors and the day on which they shall give their votes, which day
shall be the same throughout the United States.
69 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 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.
60 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-Presi-
dent, 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 re-
moved or a President shall be elected.
61 The President shall, at stated times, receive for his services
a compensation, which shall neither be increased nor diminished
i This clause of the Constitution has been superseded by the Twelfth
Amendment.
8 THE CONSTITUTION OP THE UNITED STATES.
during the period for which he may have been elected, and he
shall not receive within that period any other emolument from
the United States or any of them.
62 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 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 II.
* 3 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 re-
prieves and pardons for offenses against the United States, except
in cases of impeachment.
64 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 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.
65 The President shall have power to fill 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 III.
66 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 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
public ministers; he shall take care that the laws be faithfully
executed, and shall commission all the officers of the United
States.
SECTION IV.
* 7 The President, Vice-President, and all civil officers of the
United States shall be removed from office on impeachment for
THE CONSTITUTION OF THE UNITED STATES. 9
and conviction of treason, bribery, or other high crimes and mis-
demeanors.
AETICLE III.
SECTION I.
68 The judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress
may from time to time ordain and establish. The judges, both
of the supreme and inferior courts, shall hold their offices during
good behavior, and shall, at stated times, receive for their services
a compensation which shall not be diminished during their con-
tinuance in office.
SECTION II.
69 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 ministers, and con-
suls; to all cases of admiralty and maritime jurisdiction; to con-
troversies to which the United States shall be a party; to contro-
versies between two or more States; between a State and citizens
of another State; between citizens of different States; between
citizens of the same State claiming lands under grants of different
States, and between a State, or the citizens thereof, and foreign
States, citizens, or subjects.
70 In all cases affecting ambassadors, other public ministers
and consuls, and those in which a State shall be a party, the Su-
preme Court shall have original jurisdiction. In all the other cases
before mentioned the Supreme Court shall have appellate juris-
diction, both as to law and fact, with such exceptions and under
such regulations as the Congress shall make.
. 71 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.
SECTION III.
72 Treason against the United States shall consist only in levy-
ing war against them, or in adhering to their enemies, giving them
aid and comfort. No person shall be convicted of treason unless
on the testimony of two witnesses to the same overt act, or on
confession in open court.
78 The Congress shall have power to declare the punishment
of treason, but no attainder of treason shall work corruption of
blood or forfeiture except during the life of the person attainted.
10 THE CONSTITUTION OF THE UNITED STATES.
AETICLE IV.
SECTION I.
74 Full faith and credit shall be given in each State to the public
acts, records, and judicial proceedings of every other State. And
the Congress may by general laws prescribe the manner in which
such acts, records, and proceedings shall be proved, and the effect
thereof.
SECTION II.
75 The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.
76 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.
77 No person held to service or labor in one Staite, under the
laws thereof, escaping into another, shall, in consequence of any
law or regulation therein, be discharged from such service or
labor, but shall be delivered up on claim of the party to whom
such service or labor may be due.
SECTION III.
78 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.
79 The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims of
the United States or of any particular State.
SECTION IV.
80 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 legislature, or
of the executive (when the legislature cannot be convened), against
domestic violence.
ARTICLE V.
81 The Congress, whenever two-thirds of both houses shall deem
it necessary, shall propose amendments to this Constitution, or,
THE CONSTITUTION OF THE UNITED STATES. 11
on the application of the legislatures of two-thirds of the several
States, shall call a convention for proposing amendments, which
in either case shall be valid to all 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 that no amendments which may be made
prior to the year one thousand eight hundred and eight shall in
any manner affect the first and fourth clauses in the ninth section
of the first article; and that no State, without its consent, shall
be deprived of its equal suffrage in the Senate.
ARTICLE VI.
82 All debts contracted and engagements entered into, before
the adoption of this Constitution, shall be as valid against the
United States under this Constitution as under the confederation.
83 This Constitution, and the laws of the United States wliich
shall be made in pursuance thereof, and all treaties made, or which
shall be made, under the authority of the United States, shall
be the supreme law of the land; and the judges in every State
shall be bound thereby, anything in the Constitution or laws of
any State to the contrary notwithstanding.
84 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 Con-
stitution; but no religious test shall ever be required as a qualifi-
cation to any office or public trust under the United States.
ARTICLE VII.
85 The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States so ratifying the same.
\
NX ^ Done in convention by the unanimous consent of the States
present, the seventeenth day of September, in the year of
our Lord one thousand seven hundred and eighty-seven, and
of the independence of the United States of America the
twelfth. In witness whereof, we have hereunto subscribed
our names.
George Washington, President, and Deputy from Virginia.
New Hampshire John Langdon, Nicholas Oilman.
Massachusetts Nathaniel Gorham, Rufus King.
Connecticut William Samuel Johnson, Roger Sherman.
New York Alexander Hamilton.
New Jersey William Livingston, David Brearly, William Pat-
terson, Jonathan Dayton.
12 THE CONSTITUTION OF THE UNITED STATES.
Pennsylvania Benjamin Franklin, Thomas Mifflin, Kobert Mor-
ris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James
Wilson, Gouverneur Morris.
Delaware George Read, Gunning Bedford, Jr., John Dickinson,
Richard Bassett, Jacob Broom.
Maryland James McHenry, Daniel of St. Thomas Jenifer, Daniel
Carroll.
Virginia John Blair, James Madison, Jr.
North Carolina William Blount, Richard Dobbs Spaight, Hugh
Williamson.
South Carolina John Rutledge, Charles Cotesworth Pinckney,
Charles Pinckney, Pierce Butler.
Georgia William Few, Abraham Baldwin.
Attest: William Jackson, Secretary.
AMENDMENTS.
ARTICLE I.
87 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 government for a redress
of grievances.
ARTICLE II.
88 A well-regulated militia being necessary to the security of
a free State, the right of the people to keep and bear arms shall
not be infringed.
ARTICLE III.
89 No soldier shall, in time of peace, be quartered in any house
without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law.
ARTICLE IV.
90 The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue but upon prob-
able cause, supported by oath or affirmation, and particularly, de-
THE CONSTITUTION OF THE UNITED STATES. 13
scribing the place to be searched, and the person or things to be
seized.
ARTICLE V.
91 No person shall be held to answer for a capital or other-
wise infamous crime, unless on a presentment or indictment of
a grand jury, except in cases arising in the land or naval forces,
or in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be de-
prived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use without just
compensation.
ARTICLE VI.
02 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 con-
fronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the assist-
ance of counsel for his defense.
ARTICLE VII.
93 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.
ARTICLE VIII.
94 Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.
ARTICLE IX.
95 The enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the
people.
ARTICLE X.
96 The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved to the
States respectively or to the people.
14 THE CONSTITUTION OF THE UNITED STATES.
ARTICLE XI.
97 The judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced or prose-
cuted against one of the United States by citizens of another
State, or by citizens or subjects of any foreign State.
ARTICLE XII.
98 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 them-
selves; they shall name in their ballots the person voted for as
President, and in distinct ballots the person voted for as Vice-
President, and they shall make distinct lists of all persons voted
for as President and of all persons voted for as Vice-President,
and of the number of votes for each; which lists they shall sign
and certify, and transmit sealed to the seat of the government
of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate
and House of Representatives, open all the certificates and the
votes shall then be counted. The person having the greatest
number of votes for President shall be the President, if such
number be a majority of -the whole number of electors appointed;
and if no person have such majority, then from the persons hav-
ing 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 representation from
each State having one vote; a quorum for this purpose shall con-
sist of a member or members from two-thirds of the States, and
a majority of all the States shall be necessary to a choice. And
if the House of Representatives shall not choose a President when-
ever the right of choice shall devolve upon them, before the fourth
day of March next following, then the Vice-President shall act
as President, as in the case of the death or other constitutional
disability of the President.
99 The person having the greatest number of votes as Vice-Presi-
dent shall be the Vice-President, if such number be a majority
of the whole number of electors appointed; and if no person have
a majority, then from the two highest numbers on the list the
Senate shall choose the Vice-President; a quorum for the pur-
pose 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.
THE CONSTITUTION OF THE UNITED STATES. 15
ARTICLE XIII.
100 Section 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States or any place sub-
ject to their jurisdiction.
101 Section 2. Congress shall have power to enforce this article
by appropriate legislation.
ARTICLE XIV.
102 Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
103 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 electors for President and Vice-President of the United States,
Representatives in Congress, the executive and judicial officers
of a State, or the members of the legislature thereof, is denied to
any of the male inhabitants 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.
104 Section 3. No person shall be a Senator or Representative
in Congress, or elector of President and Vice-President, or hold
any office, civil or military, under the United States or under
any State, who, having previously taken an oath as a member of
Congress, or as an officer of the United States, or as a member
of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall
have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may,
by a vote of two-thirds of each house, remove such disability.
105 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
16 THE CONSTITUTION OF THE UNITED STATES.
States, or any claim for the loss or emancipation of any slave; but
all such debts, obligations, and claims shall be held illegal and
void.
106 Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
ARTICLE XV.
107 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 servi-
tude.
108 Section 2. The Congress shall have power to enforce this
article by appropriate legislation.
I. THE VALIDITY OF LEGISLATION.
MAEBUEY v. MADISOK
1 Cranch., 137. Decided 1803.
At the last term, namely, December term, 1801, William Mar-
bury, Dennis Eamsey, Eobert Townsend Hooe, and William Har-
per, by their counsel, Charles Lee, Esq., late Attorney-general of
the United States, severally moved the court for a rule to James
Madison, Secretary of State of the United States, to show cause
why a mandamus should not issue commanding him to cause to
be delivered to them respectively their several commissions as
justices of the peace in the District of Columbia. This motion
was supported by affidavits of the following facts: that notice
of this motion had been given to Mr. Madison; that Mr. Adams,
the late President of the United States, nominated the applicant
to the senate for their advice and consent to be appointed justices
of the peace of the District of Columbia; that the senate advised
and consented to the appointments; that commissions in due form
were signed by the said president appointing them justices, etc.,
and that the seal of the United States was in due form, affixed to
the said commissions by the secretary of state; that the applicants
have requested Mr. Madison to deliver them their said commis-
sions, who has not complied with that request; and that their said
commissions are withheld from them; that the applicants have
made application to Mr. Madison, as secretary of state of the
United States, at his office, for information whether the commis-
sions were signed and sealed as aforesaid; that explicit and satis-
factory information has not been given in answer to that inquiry,
either by the secretary of state or any officer in the department
of state; that application has been made to the secretary of the
senate for a certificate of the nomination of the applicants, and
of the advice and consent of the senate, who has declined giving
such a certificate; whereupon a rule was laid to show cause on the
fourth day of this term. This rule having been duly served, Mr.
Lee read the affidavit of Dennis Eamsey, and the printed journals
2 17
18 CASES ON CONSTITUTIONAL LAW.
of the senate of 31st January, 1803, respecting the refusal of the
senate to suffer their secretary to give the information requested.
He then called Jacob Wagner and Daniel Brent, who had been
summoned to attend the court, and who had, as it is understood,
declined giving a voluntary affidavit. They objected to being
sworn, alleging that they were clerks in the department of state,
and not bound to disclose any facts relating to the business or
transactions in the office.
The court ordered the witnesses to be sworn, and their answers
taken in writing, but informed them that when the questions were
asked they might state their objections to answering each par-
ticular question, if they had any.
Mr. Lincoln, attorney-general, having been summoned, and now
called, objected to answering. He requested that the questions
might be put in writing, and that he might afterwards have time
to determine whether he would answer. On the one hand he
respected the jurisdiction of this court, and on the other he felt
himself bound to maintain the rights of the executive. He was
acting as secretary of state at the time when the transaction hap-
pened. He was of opinion, and his opinion was supported by that
of others whom he highly respected, that he was not bound, and
ought not to answer, as to any facts which came officially to his
knowledge while acting as secretary of state.
The questions being written, were then read and handed to him.
He repeated the ideas he had before suggested, and said his objec-
tions were of two kinds.
1st. He did not think himself bound to disclose his official
transactions while acting as Secretary of State; and,
2d. He ought not to be compelled to answer anything which
might tend to criminate himself.
Mr. Lincoln thought it was going a great way to say that every
Secretary of State should at all times be liable to be called upon
to appear as a witness in a court of justice, and testify to facts
which came to his knowledge officially. He felt himself delicately
situated between his duty to this court and the duty he conceived
he owed to an executive department; and hoped the court would
give him time to consider the subject.
The court said that if Mr. Lincoln wished time to consider what
answers he should make, they would give him time; but they had
no doubt he ought to answer. There was nothing confidential
required to be disclosed. If there had been he was not obliged
to answer it; and if he thought that anything was communicated
to him in confidence he was not bound to disclose it; nor was
MARBURY v. MADISON. 19
he obliged to state anything which would criminate himself; but
that the fact whether such commissions had been in the office or
not, could not be a confidential fact; it is a fact which all the
world have a right to know. If he thought any of the questions
improper, he might state his objections.
Mr. Lincoln then prayed time till the next day to consider of
his answers under this opinion of the court.
The court granted it, and postponed further consideration of the
cause till the next day.
At the opening of the court on the next morning, Mr. Lincoln
said he had no objection to answering the questions proposed,
excepting the last, which he did not think himself obliged to
answer fully. The question was, what had been done with the
commissions? He had no hesitation in saying that he did not
know that they ever came to the possession of Mr. Madison, nor
did he know that they were in the office when Mr. Madison took
possession of it. He prayed the opinion of the court whether he
was obliged to disclose what had been done with the commissions.
The court were of opinion that he was not bound to say what
had become of them; if they never came to the possession of Mr.
Madison it was immaterial to the present cause what had been
done with them by others.
Afterwards, on the 24th February, the following opinion of the
court was delivered by the CHIEF JUSTICE. At the last term on
the affidavits then read and filed with the clerk, a rule was granted
in this case, requiring the Secretary of State to show cause why a
mandamus should not issue, directing him to deliver to William
Marbury his commission as a justice of the peace for the county
of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a
mandamus. The peculiar delicacy in this case, the novelty of
some of its circumstances, and the real difficulty attending the
points which occur in it, require a complete exposition of the prin-
ciples on which the opinion to be given by the court is founded.. .
The first object of inquiry is,
1st. Has the applicant a right to the commission he demands?
. . . [The court holds that, having been duly appointed, he
has a right to his commission.]
This brings us to the second inquiry, which is,
2dl.y. If he has a right, and that right has been violated, do
the laws of his country afford him a remedy? . . . [The court
finds that they do.]
It remains to be inquired whether,
20 CASES ON CONSTITUTIONAL LAW.
3dly. He is entitled to the remedy for which he applies. This
depends on,
1st. The nature of the writ applied for; and,
2dly. The power of this court.
1st. The nature of the writ. . . . This, then, is a plain
case for a mandamus, either to deliver the commission, or a copy
of it from the record; and it only remains to be inquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States
authorizes the supreme court "to issue writs of mandamus, in
cases warranted by the principles and usages of law, to any courts
appointed, or persons holding office, under the authority of the
United States." . . . The constitution vests the whole judicial
power of the United States in one supreme court, and such inferior
courts as Congress shall, from time to time, ordain and establish.
. . . In the distribution of this power it is declared that "the
supreme court shall have original jurisdiction in all cases affect-
ing ambassadors, other public ministers and consuls, and those
in which a State shall be a party. In all other cases, the supreme
court shall have appellate jurisdiction." .... If it had been
intended to leave it in the discretion of the legislature to appor-
tion the judicial power between the supreme and inferior courts
according to the will of that body, it would certainly have been
useless to have proceeded further than to have defined the judi-
cial power, and the tribunals in which it should be vested. The
subsequent part of the section is mere surplusage, is entirely with-
out meaning, if such is to be the construction. ... To enable
this court, then, to issue a mandamus, it must be shown to be
an exercise of appellate jurisdiction, or to be necessary to enable
them to exercise appellate jurisdiction. . . . It is the essential
criterion of appellate jurisdiction, that it revises and corrects the
proceedings in a cause already instituted, and does not create
that cause. Although, therefore, a mandamus may be directed
to courts, yet to issue such a writ to an officer for the delivery
of a paper, is in effect the same as to sustain an original action
for that paper, and, therefore, seems not to belong to appellate,
but to original jurisdiction. Neither is it necessary in such a case
as this, to enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the supreme court, by the
act establishing the judicial courts of the United States, to issue
writs of mandamus to public officers, appears not to be warranted
by the constitution; and it becomes necessary to inquire whether
a jurisdiction so conferred can be exercised.
MARBURY v. MADISON. 21
The question whether an act repugnant to the constitution can
become the law of the land, is a question deeply interesting to
the United States; but, happily, not of an intricacy proportioned
to its interest. It seems only necessary to recognize certain prin-
ciples, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their
future government, such principles as, in their opinion, shall most
conduce to their own happiness, is the basis on which the whole
American fabric has been erected. The exercise of this original
right is a very great exertion; nor can it nor ought it to be
frequently repeated. The principles, therefore, so established, are
deemed fundamental. And as the authority from which they
proceed is supreme, and can seldom act, they are designed to be
permanent.
This original and supreme will organizes the government, and
assigns to different departments their respective powers. It may
either stop here, or establish certain limits not to be transcended
by those departments.
The government of the United States is of the latter descrip-
tion. The powers of the legislature are defined and limited; and
that those limits may not be mistaken, or forgotten, the con-
stitution is written. To what purpose are powers limited, and to
what purpose is that limitation committed to writing, if these limits
may, at any time, be passed by those intended to be restrained?
The distinction between a government with limited and unlimited
powers is abolished, if those limits do not confine the persons
on whom they are imposed, and if acts prohibited and acts allowed
are of equal obligation. It is a proposition too plain to be con-
tested, that the constitution controls any legislative act repugnant
to it; or, that the legislature may alter the constitution by an
ordinary act.
Between these alternatives there is no middle ground. The
constitution is either a superior paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts,
and, like other acts, is alterable when the legislature shall please
to alter it.
If the former part of the alternative be true, then a legislative
act contrary to the constitution is not law; if the latter part be
true, then written constitutions are absurd attempts, on the part
of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions con-
template them as forming the fundamental and paramount law of
the nation, and, consequently, the theory of every such govern-
22 CASES ON CONSTITUTIONAL LAW.
ment must be, that an act of the legislature, repugnant to the
constitution, is void.
This theory is essentially attached to a written constitution, and
is consequently to be considered, by this court, as one of the
fundamental principles of our society. It is not, therefore, to be
lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is
void, does it, notwithstanding its invalidity, bind the courts, and
oblige them to give it effect? Or, in other words, though it be
not law, does it constitute a rule as operative as if it was a law?
This would be to overthrow in fact what was established in theory;
and would seem, at first view, an absurdity too gross to be insisted
on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial depart-
ment to say what the law is. Those who apply the rule to particu-
lar cases, must of necessity expound and interpret that rule. If
two laws conflict with each other, the courts must decide on the
operation of each.
So if a law be in opposition to the constitution; if both the law
and the constitution apply to a particular case, so that the court
must either decide that case conformably to the law, disregarding
the constitution, or conformably to the constitution, disregarding
the law, the court must determine which of these conflicting rules
governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the con-
stitution is superior to any ordinary act of the legislature, the
constitution, and not such ordinary act, must govern the case to
which they both apply.
Those, then, who controvert the principle that the constitution
is to be considered, in court, as a paramount law, are reduced to
the necessity of maintaining that courts must close their eyes on
the constitution, and see only the law.
This doctrine would subvert the very foundation of all written
constitutions. It would declare that an act which, according to
the principles and theory of our government, is entirely void, is
yet, in practice, completely obligatory. It would declare that if
the legislature shall do what is expressly forbidden, such act, not-
withstanding the express prohibition, is in reality effectual. It
would be giving to the legislature a practical and real omnipotence,
with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that those
limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the great-
MARBURY v. MADISON. 23
est improvement on political institutions, a written constitution,
would of itself be sufficient, in America, where written constitu-
tions have been viewed with so much reverence, for rejecting the
construction. But the peculiar expressions of the constitution of
the United States furnish additional arguments in favor of its re-
jection.
The judicial power of the United States is extended to all cases
arising under the constitution.
Could it be the intention of those who gave this power, to say
that in using it the constitution should not be looked into? That
a case arising under the constitution should be decided without
examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the
judges. And if they can open it at all, what part of it are they
forbidden to read or to obey?
There are many other parts of the constitution which serve to
illustrate this subject.
It is declared that "no tax or duty shall be laid on articles ex-
ported from any State." Suppose a duty on the export of cotton,
of tobacco, or of flour; and a suit instituted to recover it. Ought
judgment to be rendered in such a case? ought the judges to close
their eyes on the constitution, and only see the law?
The constitution declares "that no bill of attainder or ex post
facto law shall be passed."
If, however, such a bill should be passed, and a person should
be prosecuted under it, must the court condemn to death those
victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of treason
unless on the testimony of two witnesses to the same overt act, or
on confession in open court."
Here the language of the constitution is addressed especially to
the courts. It prescribes, directly for them, a rule of evidence not
to be departed from. If the legislature should change that rule,
and declare one witness, or a confession out of court, sufficient for
conviction, must the constitutional principle yield to the legisla-
tive act?
From these, and many other selections which might be made, it
is apparent that the framers of the constitution contemplated that
instrument as a rule for the government of courts, as well as of the
legislature.
Why otherwise does it direct the judges to take an oath to sup-
port it? This oath certainly applies in an especial manner to their
24 CASES ON CONSTITUTIONAL LAW.
conduct in their official character. How immoral to impose it on
them, if they were to be used as the instruments, and the knowing
instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely
demonstrative of the legislative opinion on this subject. It is in
these words: "I do solemnly swear that I will administer justice
without respect to persons, and do equal right to the poor and to
the rich; and that I will faithfully and impartially discharge all
the duties incumbent on me as , according to the best of my
abilities and understanding, agreeably to the constitution and laws
of the United States."
Why does a judge swear to discharge his duties agreeably to the
constitution of the United States, if that constitution forms no
rule for his government if it is closed upon him, and cannot be
inspected by him?
If such be the real state of things, this is worse than solemn
mockery. To prescribe, or to take this oath, becomes equally a
crime.
It is also not entirely unworthy of observation, that in declaring
what shall be the supreme law of the land, the constitution itself
is first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the constitu-
tion, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law repugnant
to the constitution is void; and that courts, as well as other de-
partments, are bound by that instrument.
The rule must be discharged.
NOTE. The principle that the courts have authority to pass
upon the validity of legislation had been asserted in at least five
States before the adoption of the Constitution, viz., in Holmes
v. Walton, in New Jersey, 1780; in Commonwealth v. Caton, in
Virginia, in 1782; in Eutgers v. Waddington, in New York, in
1784; in Trevett v. Weeden, in Ehode Island, in 1786; and in
Bayard v. Singleton, in North Carolina, in 1787. All these cases
save the first are printed in Thayer's Cases, I, 55-80. In 1792 the
Supreme Court of South Carolina, in the case of Bowman v. Mid-
dleton (1 Bay., 252), declared that an act passed by the Colonial
Legislature in 1712, which took away the freehold of one man and
vested it in another without any compensation or even a trial by
the jury of the country, was "against common right, as well as
MARBURY v. MADISON. 25
against Magna Charta," and "therefore ipso facto void/' For a
valuable discussion of these early constitutional cases, see an article
on "The Eelation of the Judiciary to the Constitution," by W. M.
Meigs, in American Law Review, xix, 175 (1885). See also Coxe,
The Judicial Power and Unconstitutional Legislation, 219-271.
A most admirable discussion of the whole question is found in an
article on "The Origin and Scope of the American Doctrine of
Constitutional Law," by Prof. James B. Thayer, in Harvard Law
Eeview, vii, 129 (1893). For an adverse view of the power of the
courts over unconstitutional legislation, see Eakin v. Raub, 12
Sergeant and Rawle (Pennsylvania), 330, also printed in Thayer's
Cases, I, 133. A list of cases in which the Federal Supreme Court
has declared statutes or parts of statutes invalid is given in 131
U. S. Appendix, ccxxxy. The list is incomplete, one of the mpst
conspicuous omissions being the Dred Scott case.
"The interpretation of the laws is the proper and peculiar prov-
ince of the courts. A Constitution is, in fact, and must be re-
garded by the Judges as a fundamental law. It must therefore
belong to them to ascertain its meaning, as well as the meaning of
any particular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought, of
course, to be preferred: in other words, the Constitution ought to
be preferred to the statutes, the intention of the people to the in-
tention of their agents." Hamilton, in The Federalist, No. 78.
"If they [the government of the United States] were to make
a law not warranted by any of the powers enumerated, it would be
considered by the judges as an infringement of the Constitution
which they are to guard. They would not consider such a law as
coming under their jurisdiction. They would declare it void."
John Marshall, in the Virginia Convention of 1788, Elliot's De-
bates, III, 553.
"To control the power and conduct of the legislature, by an
overruling constitution, was an improvement in the science and
practice of government reserved to the American states." James
Wilson, in the Pennsylvania Convention of 1787, Elliot's De-
bates, II, 432.
II. TAXATION.
HYLTON v. THE UNITED STATES.
3 Dallas, 171. Decided 1796.
This was a writ of error to the circuit court of the United
States for the district of Virginia. The question raised, and all
the facts necessary to be adverted to, appear in the opinions of the
members of the court. . . .
The court delivered these opinions seriatim, in the following
terms. 1
CHASE, J. By the case stated, only one question is submitted
to the opinion of this court: Whether the law of congress of the
5th of June, 1794 (1 U. S. Stat. at Large, 373), entitled, "An act
to lay duties upon carriages for the conveyance of persons/' is
unconstitutional and void?
The principles laid down to prove the above law void, are these:
That a tax on carriages is a direct tax, and therefore, by the con-
stitution, must be laid according to the census directed by the con-
stitution to be taken, to ascertain the number of representatives
from each State. And that the tax in question, on carriages, is
not laid by that rule of apportionment, but by the rule of uni-
formity, prescribed by the constitution in the case of duties, im-
posts, and excises; and a tax on carriages is not within either of
those descriptions. . . .
The constitution evidently contemplated no taxes as direct taxes,
but only such as congress could lay in proportion to the census.
The rule of apportionment is only to be adopted in such cases
where it can reasonably apply; and the subject taxed must ever
determine the application of the rule.
If it is proposed to tax any specific article by the rule of appor-
tionment, and it would certainly create great inequality and injus-
tice, it is unreasonable to say that the constitution intended such
tax should be laid by that rule.
i The Chief Justice, Ellsworth, whole of the argument, he declined
was sworn into office in the morn- taking any part in the decision of
ing; but not having heard the this cause.
26
HYLTON v. UNITED STATES. 27
It appears to me that a tax on carriages cannot be laid by thg
rule of apportionment, without very great inequality and injustice.
For example, suppose two States, equal in census, to pay eighty
thousand dollars each, by a tax on carriages of eighty dollars on
every carriage, and in one State there are one hundred carriages
and in the other one thousand. The owners of carriages in one
State would pay ten times the tax of owners in the other. A, in
one State, would pay for his carriage eight dollars; but B, in the
other State, would pay for his carriage, eighty dollars.
It was argued that a tax on carriages was a direct tax, and might
be laid according to the rule of apportionment, and, as I under-
stood, in this manner: Congress, after determining on the gross
sum to be raised, was to apportion it according to the census and
then lay it in one State on carriages, in another on horses, in a
third on tobacco, in a fourth on rice, and so on. I admit that this
mode might be adopted to raise a certain sum in each State, ac-
cording to the census, but it would not be a tax on carriages, but
on a number of specific articles; and it seems to me that it would
be liable to the same objection of abuse and oppression, as a selec-
tion of any one article in all the States.
I think an annual tax on carriages for the conveyance of persons,
may be considered as within the power granted to congress to lay
duties. The term duty, is the most comprehensive, next to the
general term tax; and practically in Great Britain, whence we
take our general ideas of taxes, duties, imposts, excises, customs,
&c., embraces taxes on stamps, tolls for passage, &c., &c., and is
not confined to taxes on importation only.
It seems to me that a tax on expense is an indirect tax; and I
think an annual tax on a carriage for the conveyance of persons, is
of that kind; because a carriage is a consumable commodity, and
such annual tax on it, is on the expense of the owner.
I am inclined to think, but of this I do not give a judicial opin-
ion, that the direct taxes contemplated by the constitution, are
only two, to wit, a 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 prop-
erty, within the United States, is included within the term direct
tax.
As I do not think the tax on carriages is a direct tax, it is un-
necessary at this time for me to determine whether this court
constitutionally possesses the power to declare an act of congress
void, on the ground of its being made contrary to, and in violation
28 CASES ON CONSTITUTIONAL LAW.
of the constitution; but if the court have such power, I am free
to declare, that I will never exercise it but in a very clear case.
I am for affirming the judgment of the circuit court.
PATERSOX, J. . . . What are direct taxes within the mean-
ing of the constitution? The constitution declares that a capita-
tion tax is a direct tax; and both in theory and practice, a tax
on land is deemed to be a direct tax. In this way, the terms direct
taxes, and capitation and other direct tax, are satisfied. It is not
necessary to determine, whether a tax on the product of land be a
direct or indirect tax. Perhaps the immediate product of land, in
its original and crude state, ought to be considered as the land
itself; it makes part of it, or else the provision made against tax-
ing exports would be easily eluded. Land, independently of its
produce, is of no value. When the produce is converted into a
manufacture it assumes a new shape; its nature is altered, its orig-
inal state is changed, it becomes quite another subject, and it will
be differently considered. Whether direct taxes, in the sense of
the constitution, comprehend any other tax than a capitation tax,
and tax on land, is a questionable point. If congress, for instance,
should tax, in the aggregate or mass, things that generally pervade
all the States in the Union, then perhaps the rule of apportionment
would be the most proper, especially if an assessment was to inter-
vene. This appears, by the practice of some of the States, to have
been considered as a direct tax. Whether it be so under the con-
stitution of the United States is a matter of some difficulty; but
as it is not before the court, it would be improper to give any
decisive opinion upon it. I never entertained a doubt that the
principal, I will not say the only objects, that the framers of the
constitution contemplated as falling within the rule of apportion-
ment, were a capitation tax and a tax on land. Local considera-
tions, and the particular circumstances and relative situation of
the States, naturally lead to this view of the subject. The pro-
vision was made in favor of the southern States. They possessed
a large number of slaves; they had extensive tracts of territory,
thinly settled and not very productive. A majority of the States
had but few slaves, and several of them a limited territory, well
settled, and in a high state of cultivation. The Southern States,
if no provision had been introduced in the constitution, would
have been wholly at the mercy of the other States. Congress in
such case might tax slaves, at discretion or arbitrarily, and land in
every part of the L T nion after the same rate or measure; so much
a head in the first instance, and so much an acre in the second.
HYLTON v. UNITED STATES. 29
To guard them against imposition, in these particulars, was the
reason of introducing the clause in the constitution which directs
that representatives and direct taxes shall be apportioned among
the States according to their respective numbers. . . .
All taxes on expense or consumption are indirect taxes. A tax
on carriages is of this kind, and of course is not a direct tax. In-
direct taxes are circuitous modes of reaching the revenue of indi-
viduals, who generally live according to their income. In many
cases of this nature the individual may be said to tax himself. I
shall close this discourse with reading a passage or two from
Smith's Wealth of Nations.
"The impossibility of taxing people in proportion to their rev-
enue by any capitation, seems to have given occasion to the inven-
tion of taxes upon consumable commodities; the State not know-
ing how to tax directly and proportionably the revenue of its sub-
jects, endeavors to tax it indirectly by taxing their expense, which
it is supposed in most cases will be nearly in proportion to their
revenue. Their expense is taxed by taxing the consumable com-
modities upon which it is laid out." Vol. iii, 331.
"Consumable commodities, whether necessaries or luxuries, may
be taxed in two different ways; the consumer may either pay an
annual sum on account t>f his using or consuming goods of a cer-
tain kind, or the goods may be taxed while they remain in the
hands of the dealer, and before they are delivered to the consumer.
The consumable goods, which last a considerable time before they
are consumed altogether, are most properly taxed in the one way;
those of which the consumption is immediate, or more speedy, in
the other; the coach tax and plate tax are examples of the former
method of imposing; the greater part of the other duties of excise
and customs, of the latter." Vol. iii, p. 341.
I am, therefore, of opinion that the judgment rendered in the
circuit court of Virginia ought to be affirmed.
IEEDELL, J. I agree in opinion with my brothers, who have al-
ready expressed theirs, that the tax in question is agreeable to the
constitution; and the reasons which have satisfied me can be de-
livered in a very few words, since I think the constitution itself
affords a clear guide to decide the controversy.
The congress possess the power of taxing all taxable objects,
without limitation, with the particular exception of a duty on
exports.
There are two restrictions only on the exercise of this authority
30 CASES ON CONSTITUTIONAL LAW.
1. All direct taxes must be apportioned.
2. All duties, imposts and excises must be uniform.
If the carriage tax be a direct tax, within the meaning of the
constitution, it must be apportioned. If it be a duty, impost, or
excise, within the meaning of the constitution, it must be uniform.
If it can be considered as a tax, neither direct within the mean-
ing of the constitution, nor comprehended within the term duty,
impost, or excise; there is no provision in the constitution, one
way or another, and then it must be left to such an operation of the
power, as if the authority to lay taxes had been given generally in
all instances, without saying whether they should be apportioned
or uniform; and in that case, I should presume, the tax ought to
be uniform; because the present constitution was particularly in-
tended to affect individuals, and not States, except in particular
cases specified; and this is the leading distinction between the
articles of confederation and the present constitution.
As all direct taxes must be apportioned, it is evident that the
constitution contemplated none as direct but such as could be
apportioned. .
If this cannot be apportioned, it is, therefore, not a direct tax
in the sense of the constitution.
That this tax cannot be apportioned is evident. Suppose ten
dollars contemplated as a tax on each chariot, or post chaise, in the
United States, and the number of both in all the United States be
computed at one hundred and five, the number of representatives
in congress, this would produce in the whole one thousand and
fifty dollars; the share of Virginia, being 19-105 parts, would be
one hundred and ninety dollars; the share of Connecticut, being
7-105 parts, would be seventy dollars; then suppose Virginia had
fifty carriages, Connecticut two, the share of Virginia being one
hundred and ninety dollars, this must of course be collected from
the owners of carriages, and there would therefore be collected
from each carriage three dollars and eighty cents; the share of
Connecticut being seventy dollars, each carriage would pay thirty-
five dollars.
If any State had no carriages, there could be no apportionment
at all. This mode is too manifestly absurd to be supported, and
has not even been attempted in debate. But two expedients have
been proposed of a very extraordinary nature to evade the difficulty.
1. To raise the money a tax on carriages would produce, not by
laying a tax on each carriage uniformly, but by selecting different
articles in different States, so that the amount paid in each State
may be equal to the sum due upon a principle of apportionment.
HYLTON v. UNITED STATES. 31
One State might pay by a tax on carraiges, another by a tax on
slaves, &c.
I should have thought this merely an exercise of ingenuity, if it
had not been pressed with some earnestness; and as this was done
by gentlemen of high respectability in their profession, it deserves
a serious answer, though it is very difficult to give such a one.
1. This is not an apportionment, of a tax on carriages, but of
the money a tax on carriages might be supposed to produce, which
is quite a different thing.
2. It admits that congress cannot lay an uniform tax on all car-
riages in the Union, in any mode, but that they may on carriages
in one or more States. They may therefore lay a tax on carriages
in fourteen States, but not in the fifteenth.
3. If congress, according to this new decree, may select carriages
as a proper object, in one or more States, but omit them in others,
I presume they may omit them in all, and select other articles.
Suppose, then, a tax on carriages would produce $100,000, and
a tax on horses a like sum, $100,000, and $100,000 were to be
apportioned according to that mode; gentlemen might amuse
themselves with calling this a tax on carriages, or a tax on horses,
while not a single carriage, nor a single fyorse was taxed throughout
the Union.
4. Such an arbitrary method of taxing different States differ-
ently, is a suggestion altogether new, and would lead, if practised,
to such dangerous consequences that it will require very powerful
arguments to show that that method of taxing would be in any
manner compatible with the constitution, with which at present,
I deem it utterly irreconcilable, it being altogether destructive of
the notion of a common interest, upon which the very principles
of the constitution are founded, so far as the condition of the
United States will admit.
The second expedient proposed was, that of taxing carriages,
among other things, in a general assessment. This amounts to
saying that congress may lay a tax on carriages, but that they may
not do it unless they blend it with other subjects of taxation. For
this, no reason or authority has been given, and in addition to
other suggestions offered by the counsel on that side, affords an
irrefragable proof, that when positions plainly so untenable are
offered to counteract the principle contended for by the opposite
counsel, the principle itself is a right one; for, no one can doubt,
that if better reasons could have been offered, they would not
have escaped the sagacity and learning of the gentlemen who of-
fered them.
32 CASES ON CONSTITUTIONAL LAW.
There is no necessity or propriety in determining what is, or is
not a direct or indirect tax in all cases.
Some difficulties may occur which we do not at present foresee.
Perhaps a direct tax, in the sense of the constitution, can mean
nothing but a tax on something inseparably annexed to the soil,
something capable of apportionment under all such circum-
stances.
A land or a poll tax may be considered of this description.
The latter is to be considered so particularly under the present
constitution, on account of the slaves in the southern States, who
give a ratio in the representation in the proportion of three to five.
Either of these is capable of apportionment. In regard to other
articles, there may possibly be considerable doubt.
It is sufficient, on the present occasion, for the court to be satis-
fied that this is not a direct tax contemplated by the constitution,
in order to affirm the present judgment; since, if it cannot be ap-
portioned, it must necessarily be uniform.
I am clearly of opinion this is not a direct tax in the sense of
the constitution, and, therefore, that the judgment ought to be
affirmed.
[WILSON, J., had rendered an opinion in this case in the Cir-
cuit Court of Virginia, and now merely expressed his concurrence
in the opinion of the court. GUSHING, J., not having heard the
arguments, did not deliver an opinion.]
BY THE COUET. Let the judgment of the circuit court be
affirmed.
McCULLOCH v. THE STATE OF MARYLAND ET AL.
4 Wheaton, 316. Decided 1819.
ERROR to the court of appeals of the State of Maryland. . . .
[In April, 1816, Congress incorporated the Bank of the United
States. In February, 1818, the general assembly of Maryland,
imposed "a tax on all banks, or branches thereof, in the State of
Maryland, not chartered by the legislature." McCulloch, the cash-
ier of the branch of the Bank of the United States established in
the city of Baltimore, violated the latter act by issuing notes upon
unstamped paper. The question submitted to the court for their
decision in this case is as to the validity of the said act of the
McCULLOCH v. STATE OF MARYLAND. 33
general assembly of Maryland, on the ground of its being repug-
nant to the constitution of the United States, and the act of con-
gress aforesaid, or one of them.]
MAKSHALL, C. J., delivered the opinion of the court.
In the case now to be determined, the defendant, a sovereign
state, denies the obligation of a law enacted by the legislature of
the Union; and the plaintiff, on his part, contests the validity of
an act which has been passed by the legislature of that State. The
constitution of our country, in its most interesting and vital
parts, is to be considered; the conflicting powers of the govern-
ment of the Union and of its members, as marked in that consti-
tution, are to be discussed; and an opinion given, which may
essentially influence the great operations of the government. No
tribunal can approach such a question without a deep sense of its
importance, and of the awful responsibility involved in its decision.
But it must be decided peacefully, or remain a source of hostile
legislation, perhaps of hostility of a still more serious nature; and'
if it is to be so decided, by this tribunal alone can the decision be
made. On the supreme court of the United States has the con-
stitution of our country devolved this important duty.
The first question made in the cause is, has congress power to
incorporate a bank? . . .
[This part of the opinion is given infra, page 308.]
It being the opinion of the court, that the act incorporating the
bank is constitutions ;, &nd c that" the p'ov;er of establishing a
branch in the State of Maryland might be properly exercised by
the bank itself, we, proceed ,'tc.' inquire :.-T%~^
2. Whether, the Sta'te "of " M?rylafi<i ir.ay, without violating the
constitution; tax that branch?
That the power of taxation is one of vital importance; that it is
retained by the States; that it is not abridged by the grant of a
similar power to the government of the Union; that it is to be
concurrently exercised by the two governments: are truths which
have never been denied. But, such is the paramount character of
the constitution, that its capacity to withdraw any subject from
the action of even this power, is admitted. The States are expressly
forbidden to lay any duties on imports or exports, except what may
be absolutely necessary for executing their inspection laws. If
the obligation of this prohibition must be conceded if it may re-
strain a State from the exercise of its taxing power on imports and
exports; the same paramount character would seem to restrain, as
3
34 CASES ON CONSTITUTIONAL LAW.
it certainly may restrain, a State from such other exercise of this
power, as is in its nature incompatible with, and repugnant to,
the constitutional laws of the Union. A law, absolutely repug-
nant to another, as entirely repeals that other as if express terms
of repeal were used.
On this ground the counsel for the bank place its claim to be
exempted from the power of a State to tax its operations. There
is no express provision for the case, but the claim has been sus-
tained on a principle which so entirely pervades the constitution,
is so intermixed with the materials which compose it, so inter-
woven with its web, so blended with its texture, as to be incapable
of being separated from it, without rending it into shreds.
This great principle is, that the constitution and the laws made
in pursuance thereof are supreme; that they control the consti-
tution and laws of the respective States, and cannot be controlled
by "them. From this, which may be almost termed an axiom,
other propositions are deduced as corollaries, on the truth or error
of which, and on their application to this case, the cause has been
supposed to depend. These are, 1. That a power to create implies
a power to preserve. 2. That a power to destroy, if wielded by a
different hand, is hostile to, and incompatible with, these powers
to create and preserve. 3. That where this repugnancy exists,
that authority which is supreme must control, not yield to that
over which it is supreme.
These propositions, as abstract truths, would, perhaps, never be
controverted. Their application to this case, however, has been
denied; and, both in- maintaining tae affirmative and the negative,
a splendor of eloquence^'and strength of argument, seldom, if ever,
surpassed, have been &spljLje; tt \
The power of congress ;to pr3ate> and e\30i/r?e to continue, the
bank, was the subject of tire "preceding, part of this opinion; and
is no longer to be considered as questionable.
That the power of taxing it by the States may be exercised so as
to destroy it, is too obvious to be denied. But taxation is said to
be an absolute power, which acknowledges no other limits than
those expressly prescribed in the constitution, and like sovereign
power of every other description, is trusted to the discretion of
those who use it. But the very terms of this argument admit that
the sovereignty of the State, in the article of taxation itself, is
subordinate to, and may be controlled by, the constitution of the
United States, How far it has been controlled by that instrument
must be a question of construction. In making this construction,
no principle not declared, can be admissible, which would defeat
McCULLOCH v. STATE OF MARYLAND. 35
the legitimate operations of a supreme government. It is of the
very essence of supremacy to remove all obstacles to its action
within its own sphere, and so to modify every power vested in sub-
ordinate governments, as to exempt its own operations from their
own influence. This effect need not be stated in 'terms. It is so
involved in the declaration of supremacy, so necessarily implied
in it, that the expression of it could not make it more certain. We
must, therefore, keep it in view while construing the constitution.
The argument on the part of the State of Maryland, is, not that
the States may directly resist a law of congress, but that they may
exercise their acknowledged powers upon it, and that the consti-
tution leaves them this right in the confidence that they will not
abuse it.
Before we proceed to examine this argument, and to subject it
to the test of the constitution, we must be permitted to bestow a
few considerations on the nature and extent of this original right
of taxation, which is acknowledged to remain with the States. It
is admitted that the power of taxing the people and their property
is essential to the very existence of government, and may be legiti-
mately exercised on the objects to which it is applicable, to the
utmost extent to which the government may choose to carry it.
The only security against the abuse of this power, is found in the
structure of the government itself. In imposing a tax the legisla-
ture acts upon its constituents. This is in general a sufficient
security against erroneous and oppressive taxation.
The people of a State, therefore, give to their government a
riglvf of taxmg themselves and their property, and as the exigencies
of government cannot be limited, they prescribe no limits to the
exercise of this right, resting confidently on the interest of the
legislator, and on the influence of the constituents over their rep-
resentatives, to guard them against its abuse. But the means
employed by the government of the Union have no such security,
nor is the right of a State to tax them sustained by the same
"theory. Those means are not given by the people of a particular
State, not given by the constituents of the legislature, which
claim the right to tax them, but by the people of all the States.
They are given by all, for the benefit of all and upon theory,
should be subjected to that government only which belongs to all.
It may be objected to this definition, that the power of taxation
is not confined to the people and property of a State. It may be
exercised upon every object brought within its jurisdiction.
This is true. But to what source do we trace this right? It is
obvious, that it is an incident of sovereignty, and is co-extensive
36 CASES ON CONSTITUTIONAL LAW.
with that to which it is an incident. All subjects over which the
sovereign power of a State extends, are objects of taxation; but
those over which it does not extend, are, upon the soundest prin-
ciples, exempt from taxation. This proposition may almost be pro-
nounced self-evident.
>* The sovereignty of a State extends to everything which exists
jby its own authority, or is introduced by its permission; but does
it extend to those means which are employed by congress to carry
into execution powers conferred on-4hat body by_ the people of the
United States? We think it demonstrable that it tloesciot. Those
powers are not given by the people of a single State. They are
! given by the people of the United States, to a government whose
1 laws, made in pursuance of the constitution, are declared to be
, supreme. Consequently, the people of a single State cannot confer
a sovereignty which will extend over them.
If we measure the power of taxation residing in a State, by the
extent of sovereignty which the people of a single State possess,
and can confer on its government, we have an intelligible stand-
ard, applicable to every case to which the power may be applied.
We have a principle which leaves the power of taxing the people
and property of a State unimpaired; which leaves to a State the
command of all its resources, and which places beyond its reach,
all those powers which are conferred by the people of the United
States on the government of the Union, and all those means
which are given for the purpose of carrying those powers into exe-
cution. We have a principle which is safe for the States, and safe
for the Union. We are relieved, as we ought to be, from clashing
sovereignty; from interfering powers; from a repugnancy be-
tween a right in one government to pull down what there is an
acknowledged right in another to build up; from the incompati-
bility of a right in one government to destroy what there is a
right in another to preserve. We are not driven to the perplexing
inquiry, so unfit for the judicial department, what degree of tax-
ation is the legitimate use, and what degree may amount to the
abuse of the power. The attempt to use it on the means em-
ployed by the government of the Union, in pursuance of the con-
stitution, is itself an abuse, because it is the usurpation of a power,
which the people of a single State cannot give.
We find, then, on just theory, a total failure of this original right
to tax the means employed by the government of the Union, for
the execution of its powers. The right never existed, and the
question whether it has been surrendered, cannot arise.
But, waiving this theory for the present, let us resume the in-
McCULLOCH v. STATE OF MARYLAND. 37
quiry, whether this power can be exercised by the respective States,
consistently with a fair construction of the constitution?
That the power to tax involves the power to destroy; that the
power to destroy may defeat and render useless the power to cre-
ate; that there is a plain repugnance, in conferring on one gov-
ernment a power to control the constitutional measures of another,
which other, with respect to those very measures, is declared to
be supreme over that which exerts the control, are propositions
not to be denied. 'But all inconsistencies are to be reconciled by
the magic of the word confidence. Taxation, it is said, does not
necessarily and unavoidably destroy. To carry it to the excess
of destruction would be an abuse, to presume which, would banish
that confidence which is essential to all government.
But is this a case of confidence? Would the people of any one
State trust those of another with a power to control the most
insignificant operations of their state government? We know they
would not. Why, then, should we suppose that the people of any
one State should be willing to trust those of another with a
power to control the operations of a government to which they
have confided their most important and most valuable interests?
In the legislature of the Union alone, are all represented. The
legislature of the Union alone, therefore, can be trusted by the
people with the power of controlling measures which concern all,
in the confidence that it will not be abused. This, then, is not a
case of confidence, and we must consider it as it really is.
If we apply the principle for which the State of Maryland con-
tends, to the constitution generally, we shall find it capable of
changing totally the character of that instrument. We shall
find it capable of arresting all the measures of the government,
and of prostrating it at the foot of the States. The American
people have declared their constitution, and the laws made in
pursuance thereof, to be supreme; but this principle would trans-
fer the supremacy, in fact, to the State.
If the States may tax one instrument, employed by the govern-
ment in the execution of its powers, they may tax any and every
other instrument. They may tax the mail; they may tax the
mint; they may tax patent rights; they may tax the papers of the
custom-house; the may tax judicial process; they may tax all the
means employed by the government, to an excess which would
defeat all the ends of government. This was not intended by the
American people. They did not design to make their govern-
ment dependent on the States.
Gentlemen say, they do not claim the right to extend State
38 CASES ON CONSTITUTIONAL LAW.
taxation to these objects. They limit their pretensions to prop-
erty. But on what principle is this distinction made? Those
who make it have furnished no reason for it, and the principle for
which they contend denies it. They contend that the power of
taxation has no other limit than is found in the 10th section of
the 1st article of the constitution; that, with respect to every-
thing else, the power of the States is supreme, and admits of no
control. If this he true, the distinction between property and
other subjects to which the power of taxation is applicable, is
merely arbitrary, and can never be sustained. This is not all.
If the controlling power of the States be established; if their
supremacy as to taxation be acknowledged; what is to restrain their
exercising this control in any shape they may please to give it?
Their sovereignty is not confined to taxation. That is not the
only mode in which it might be displayed. The question is, in
truth, a question of supremacy; and if the right of the States to
tax the means employed by the general government be conceded,
the declaration that the constitution, and the laws made in pur-
suance thereof, shall be the supreme law of the land, is empty
and unmeaning declamation.
In the course of the argument, the Federalist has been quoted;
and the opinions expressed by the authors of that work have
been justly supposed to be entitled to great respect in expounding
the constitution. No tribute can be paid to them which exceeds
their merit; but in applying their opinions to the cases which
may arise in the progress of our government, a right to judge of
their correctness must be retained; and, to understand the argu-
ment, we must examine the proposition it maintains, and the
objections against which it is directed. The subject of those
numbers, from which passages have been cited, is the unlimited
power of taxation which is vested in the general government. The
objection to this unlimited power, which the argument seeks to
remove, is stated with fullness and clearness. It is "that an in-
definite power of taxation in the latter (the government of the
Union) might, and probably would, in time, deprive the former
(the government of the States) of the means of providing for
their own necessities; and would subject them entirely to the mercy
of the national legislature. As the laws of the Union are to be-
come the supreme law of the land; as it is to have power to
pass all laws that may be necessary for carrying into execution
the authorities with which it is proposed to vest it; the national
government might at any time abolish the taxes imposed for
State objects, upon the pretense of an interference with its own.
McCULLOCH v. STATE OF MARYLAND. 39
It might allege a necessity for doing this, in order to give effi-
cacy to the national revenues; and thus all the resources of tax-
ation might, by degrees, become the subjects of federal monopoly,
to the entire exclusion and destruction of the state governments."
The objections to the constitution which are noticed in these
numbers, were to the undefined power of the government to tax,
not to the incidental privilege of exempting its own measures from
State taxation. The consequences apprehended from this unde-
fined power were, that it would absorb all the objects of taxation,
"to the exclusion and destruction of the state governments." The
arguments of the Federalist are intended to prove the fallacy of
these apprehensions; not to prove that the government was in-
capable of executing any of its powers, without exposing the
means it employed to the embarrassments of State taxation. Argu-
ments urged against these objections, and these apprehensions, are
to be understood as relating to the points they mean to prove.
Had the authors of those excellent essays been asked, whether they
contended for that construction of the constitution, which would
place within the reach of the States those measures which the
government might adopt for the execution of its powers; no man,
who has read their instructive pages, will hesitate to admit, that
their answer must have been in the negative.
It has also been insisted, that, as the power of taxation in the
general and state governments is acknowledged to be concurrent,
every argument which would sustain the right of the general gov-
ernment to tax banks chartered by the States, will equally sustain
the right of the States to tax banks chartered by the general
government.
But the two cases are not on the same reason. The people of
all the States have created the general government, and have con-
ferred upon it the general power of taxation. The people of all
the States, and the States themselves, are represented in congress,
and, by their representatives, exercise this power. When they tax
the chartered institutions of the States, they tax their constitu-
ents; and these taxes must be uniform. Jluijdifin- a State taxes
the operations of the government of the United States, it acts
upon institutions created, not by their own constituents, but by
people over whom they claim no control. It acts upon the meas-
ures of a government created by others as well as themselves, for
the benefit of others in common with themselves. The difference
is that which always exists, and always must exist, between the
action of the whole on a part, and the action of a part on the
whole between the laws of a government declared to be supreme,
40 CASES ON CONSTITUTIONAL LAW.
and those of a government which, when in opposition to those laws,
is not supreme.
But if the full application of this argument could be admitted,
it might bring into question the right of congress to tax the state
banks, and could not prove the right of the States to tax the Bank
of the United States.
The court has bestowed on this subject its most deliberate con-
sideration. The result is a conviction that the States have no
power, by taxation or otherwise, to retard, impede, burden, or in
any manner control, the operations of the constitutional laws
enacted by congress to carry into execution the powers vested in
the general government. This is, we think, the unavoidable conse-
quence of that supremacy which the constitution has declared.
We are unanimously of opinion, that the law passed by the
legislature of Maryland, imposing a tax on the Bank of the United
States, is unconstitutional and void.
This opinion does not deprive the States of any resources which
they originally possessed. It does not extend to a tax paid by
the real property of the bank, in common with the other real
property within the State, nor to a tax imposed on the interest
which the citizens of Maryland may hold in this institution, in
common with other property of the same description throughout
the State. Birtjthis is a tax on the operations of the bank, and is,
consequently, a tax on the operation of an instrument employed
by the government of the Union to carry its powers into execution.
Such a tax must be unconstitutional.
JUDGMEXT. This cause came on to be heard on the transcript
of the record of the court of appeals of the State of Maryland,
and was argued by counsel. On consideration whereof, it is the
opinion of this court that the act of the legislature of Maryland
is contrary to the constitution of the United States, and void.
NOTE. "A case could not be selected from the decisions of the
Supreme Court of the United States, superior to this one of Mc-
Culloch v. Maryland, for the clear and satisfactory manner in
which the supremacy of the laws of the Union have been main-
tained by the court, and an undue assertion of State power over-
ruled and defeated." Kent's Commentaries, I., 428.
.WESTON ET AL v. CITY OF CHARLESTON. 41
WESTON ET AL. v. THE CITY COUNCIL OF CHARLESTON.
2 Peters, 449. Decided 1829.
Error to the constitutional court of South Carolina. By an
ordinance of the city of Charleston, "stock of the United States"
was, among other things, made taxable. The plaintiffs, as owners
of such stock, applied to the court of common pleas of the Charles-
ton district for a prohibition to restrain the city council from
taxing that stock, on the ground that the tax would be incon-
sistent with the constitution of the United States. The prohi-
bition having been granted, the proceedings were removed into
the constitutional court, where four of the seven judges being
of opinion that the tax would be valid, reversed the order for a
prohibition, and thereupon this writ of error was brought. . . .
MARSHALL, C. J., delivered the opinion of the court. . . .
. . . This brings us to the main question. Is the stock
issued for loans made to the government of the United States liable
to be taxed by States and corporations?
Congress has power "to borrow money on the credit of the
United States." The stock it issues is the evidence of a debt
created by the exercise of this power. The tax in question is a
tax upon the contract subsisting between the government and the
individual. It bears directly upon that contract, while subsist-
ing and in full force. The power operates upon the contract the
instant it is framed, and must imply a right to affect that con-
tract.
If the States and corporations throughout the Union, pos-
sess the power to tax a contract for the loan of money, what shall
arrest this principle in its application to every other contract?
What measure can government adopt which will not be exposed to
its influence?
But it is unnecessary to pursue this principle through its di-
versified application to all the contracts, and to the various op-
erations of government. No one can be selected which is of more
vital interest to the community than this of borrowing money on
the credit of the United States. No power has been conferred by the
American people on their government, the free and unburdened
exercise of which more deeply affects every member of our repub-
lic. In war, when the honor, the safety, the independence of the
nation are to be defended, when all its resources are to be strained
to the utmost, credit must be brought in aid of taxation, and the
42 CASES ON CONSTITUTIONAL LAW.
abundant revenue of peace and prosperity must be anticipated to
supply the exigencies, the urgent demands of the moment. The
people, for objects the most important which can occur in the
progress of nations, have empowered their government to make
these anticipations, "to borrow money on the credit of the United
States." Can anything be more dangerous, or more injurious,
than the admission of a principle which authorizes every State and
every corporation in the Union which possesses the right of taxa-
tion, to burden the exercise of this power at their discretion?
If the right to impose the tax exists, it is a right which in its
nature acknowledges no limits. It may be carried to any extent
within the jurisdiction of the State or corporation which im-
poses it, which the will of each State and corporation may pre-
scribe. A power which is given by the whole American people for
their common good, which is to be exercised at the most critical
periods for the most important purposes, on the free exercise
of which the interests certainly, perhaps the liberty of the whole
may depend; may be burdened, impeded, if not arrested, by any
of the organized parts of the confederacy.
In a society formed like ours, with one supreme government
for national purposes, and numerous state governments for other
purposes, in many respects independent, and in the uncontrolled
exercise of many important powers, occasional interferences ought
not to surprise us. The power of taxation is one of the most
essential to a State, and one of the most extensive in its opera-
tion. The attempt to maintain a rule which shall limit its exer-
cise, is undoubtedly among the most delicate and difficult duties
which can devolve on those whose province it is to expound the
supreme law of the land in its application to the cases of individ-
uals. This duty has more than once devolved on this court. In
the performance of it we have considered it as a necessary conse-
quence from the supremacy of the government of the whole, that
its action in the exercise of its legitimate powers, should be free
and unembarrassed by any conflicting powers in the possession of
its parts; that the powers of a State cannot rightfully be so exer-
cised as to impede and obstruct the free course of those meas-
ures which the government of the States united may rightfully
adopt.
This subject was brought before the court in the case of Mc-
Culloch v. The State of Maryland, 4 Wheaton, 316, when it was
thoroughly argued and deliberately considered. The question
decided in that case bears a near resemblance to that which is
involved in this. It was discussed at the bar in all its relations,
WESTON ET AL V. CITY OF CHARLESTON. 43
and examined by the court with its utmost attention. We will
not repeat the reasoning which conducted us to the conclusion
thus formed, but that conclusion was that "all subjects over which
the sovereign power of a State extends, are objects of taxation;
but those over which it does not extend, are upon the soundest
principles exempt from taxation." "The sovereignty of a State
extends to everything which exists by its own authority, or is
introduced *by its permission;" but not "to those means which are
employed by congress to carry into execution powers conferred on
that body by the people of the United States." "The attempt to
use" the power of taxation "on the means employed by the gov-
ernment of the Union in pursuance of the constitution, is itself
an abuse, because it is the usurpation of a power which the people
of a single State cannot give."
The court said in that case, that "the States have no power
by taxation, or otherwise, to retard, impede, burden, or in any
manner control the operation of the constitutional laws enacted
by congress, to carry into execution the powers vested in the gen-
eral government."
We retain the opinions which were then expressed. A con-
tract made by the government in the exercise of its power, to
borrow money on the credit of the United States, is undoubtedly
independent of the will of any State in which the individual who
lends may reside, and is undoubtedly an operation essential to
the important objects for which the government was created. It
ought, therefore, on the principles settled in the case of McCulloch
v. The State of Maryland, to be exempt frcm state taxation, and
consequently from being taxed by corporations deriving their
power from States.
\It is admitted that the power of the government to borrow
money cannot be directly opposed, and that any law directly ob-
structing its operation would be void; but a distinction is taken
between direct opposition and those measures which may conse-
quentially affect it; that is, that a law prohibiting loans to the
United States would be void, but a tax on them to any amount
is allowable.
It is, we think, impossible not to perceive the intimate con-
nection which exists between these two modes of acting on the
subject.
It is not the want of original power in an independent sovereign
State, to prohibit loans to a foreign government, which restrains
the legislature from direct opposition to those made by the United
States. The restraint is imposed by our constitution. The Amer-
44 CASES ON CONSTITUTIONAL LAW.
ican people have conferred the power of borrowing money on their
government, and by making that government supreme, have
shielded its action, in the exercise of this power, from the action
of the local governments. The grant of the power is incompatible
with a restraining or controlling power, and the declaration of
supremacy is a declaration that no such restraining or controlling
power shall be exercised.
The right to tax the contract to any extent, when made, must
operate upon the power to borrow before it is exercised, and have
a sensible influence on fhe contract. The extent of this influence
depends on the will of a distinct government. To any extent,
however inconsiderate, it is a burden on the operations of govern-
ment. It may be carried to an extent which shall arrest them
entirely.
It is admitted by the counsel for the defendants, that the power
to tax stock must affect the terms on which loans will be made;
but this objection, it is said, has no more weight when urged
against the application of an acknowledged power to government
stock, than if urged against its application to lands sold by the
United States.
The distinction is, we think, apparent. When lands are sold, no
connection remains between the purchaser and the government.
The lands purchased become a part of the mass of property in the
country with no implied exemption from common burdens. All
lands are derived from the general or particular government, and
all lands are subject to taxation. Lands sold are in the condition
of money borrowed and repaid. Its liability to taxation in any
form it may then assume is not questioned. The connection be-
tween the borrower and the lender is dissolved. It is no burden
on loans, it is no impediment to the power of borrowing, that the
money, when repaid, loses its exemption from taxation. But a tax
upon debts due from the government, stands, we think, on very dif-
ferent principles from a tax on lands which the government has
sold.
"The Federalist" has been quoted in the argument, and an elo-
quent and well-merited eulogy has been bestowed on the great
statesman who is supposed to be the author of the number from
which the quotation was made. This high authority was also relied
upon in the case of McCulloch v. The State of Maryland, and was
considered by the court. "Without repeating what was then said,
we refer to it as exhibiting our view of the sentiments expressed
on this subject by the authors of that work.
It has been supposed that a tax on stock comes within the
LICENSE TAX CASES. 45
exceptions stated in the case of McCulloch v. The State of Mary-
land. We do not think so. The bank of the United States is an
instrument essential to the fiscal operations of the government,
and the power which might be exercised to its destruction was
denied. But property acquired by that corporation in a State was
supposed to be placed in the same condition with property acquired
by an individual.
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 to be repugnant
to the constitution.
We are, therefore, of opinion that the judgment of the constitu-
tional court of the State of South Carolina, reversing the order
made by the court of common pleas, awarding a prohibition to
the city council of Charleston, to restrain them from levying a tax
imposed on six and seven per cent, stock of the United States,
under an ordinance to raise supplies to the use of the city of
Charleston for the year 1823, is erroneous in this; that the said
constitutional court adjudged that the said ordinance was not
repugnant to the constitution of the United States; whereas, this
court is of opinion that such repugnancy does exist. We are, there-
fore, of opinion that the said judgment ought to be reversed and
annulled, and the cause remanded to the constitutional court for
the State of South Carolina, that further proceedings may be
had therein according to law.
[JUSTICES JOHNSON and THOMPSON delivered dissenting opin-
ions.]
LICENSE TAX CASES.
5 Wallace, 462. Decided 1866.
[By the internal revenue act of 1864, subsequently amended,
Congress enacted that all persons intending to engage in certain
occupations, including the selling of lottery tickets and the retail-
ing of liquors, should first obtain a license from the United States.
(See 13 Stat. at Large, 248, 249, 252, 472, 485; 14 Id., 113, 116,
137, 301.)
In New York and New Jersey, the selling of lottery tickets,
and in Massachusetts, the retailing of liquors (except in certain
specified cases), were strictly forbidden.
46 CASES ON CONSTITUTIONAL LAW.
In this condition of statute law, national and State, seven cases
were brought before the Supreme Court. All of them arose
under the provisions of the- internal revenue acts relating to
licenses for selling liquors and dealing in lotteries, and to special
taxes on the latter business.
In five of the cases the general question was: Can the defend-
ants be equally convicted upon the several indictments found
against them for not having complied with the acts of Congress
by taking out and paying for the required licenses to carry on the
business in which they were engaged, such business being wholly
prohibited by the laws of the several States in which it was car-
ried on?
In the other two cases the general question was: Could the de-
fendants be legally convicted upon an indictment for being en-
gaged in a business on which a special tax is imposed by acts of
Congress, without having paid such a special tax, notwithstanding
that such business was, and is wholly prohibited by the laws of
New York?]
The CHIEF JUSTICE, having stated the case, delivered the opin-
ion of the court.
In the argument of all the cases here before the court, it was
strenuously maintained by counsel for the defendants that the
imposition of penalties for carrying on any business prohibited by
State laws, without payment for the license or special tax required
by Congress, 'is contrary to public policy. . . . This court can
know nothing of public policy except from the Constitution and
the laws, and the course of .administration and decision. It has
no legislative powers. It cannot amend or modify any legislative
acts. It cannot examine questions as expedient or inexpedient,
as politic or impolitic. Considerations of that sort nrnst, in general,
be addressed to the legislature. Questions of policy determined
there are concluded here. . . .
We come now to examine a more serious objection to the legisla-
tion of Congress in relation to the dealings in controversy. It was
argued for the defendants in error that a license to carry on a par-
ticular business gives an authority to carry it on; that the deal-
ings in controversy were parcel of the internal trade of the State
in which the defendants resided; that the internal trade of a State
is not subject, in any respect, to legislation by Congress, and can
neither be licensed nor prohibited by its authority; that licenses
for such trade, granted under acts of Congress, must therefore be
absolutely null and void; and, consequently, that penalties for
LICENSE TAX CASES. 47
carrying on such trade without such license could not be constitu-
tionally imposed.
This series of propositions, and the conclusion in which it ter-
minates, depends on the postulate that a license necessarily con-
fers an authority to carry on the licensed business. But do the
licenses required by the acts of Congress for selling liquor and lot-
tery tickets confer any authority whatever?
It is not doubted that where Congress possesses constitutional
power to regulate trade or intercourse, it may regulate by means of
licenses as well as in other modes; and, in case of such regula-
tion, a license will give to the licensee authority to do whatever
is authorized by its terms.
Thus, Congress having power to regulate commerce with foreign
nations, and among the several States, and with the Indian tribes,
may, without doubt, provide for granting coasting licenses, licenses
to pilots, licenses to trade with the Indians, and any other licenses
necessary or proper for the exercise of that great and extensive
power; and the same observation is applicable to every other power
of Congress, to the exercise of which the granting of licenses may
be incident. All such licenses confer authority, and give rights
to the licensee.
But very different considerations apply to the internal com-
merce or domestic trade of the States. Over this commerce and
trade Congress has no power of regulation nor any direct control.
This power belongs exclusively to the States. No interference
by Congress with the business of citizens transacted within a State
is warranted by the Constitution, except such as is strictly inci-
dental to the exercise of powers clearly granted to the legislature.
The power to authorize a business wtthin a State is plainly repug-
nant to the exclusive power of the State over the same subject.
It is true that the power of Congress to tax is a very extensive
power. It is given in the Constitution, with only one exception
and only two qualifications. Congress cannot tax exports, and it
must impose direct taxes by the rule of apportionment, and indirect
taxes by the rule of uniformity. Thus limited, and thus only,
it reaches every subject, and may be exercised at discretion. But
it reaches only existing subjects. Congress cannot authorize a trade
or business within a State in order to tax it.
If, therefore, the licenses under consideration must be regarded
as giving authority to carry on the branches of business which
they license, it might be difficult, if not impossible, to reconcile
the granting of them with the Constitution.
But it is not necessary to regard these laws as giving such author-
48 CASES ON CONSTITUTIONAL LAW.
ity. So far as they relate to trade within State limits, they give
none, and can give none. They simply express the purpose of the
government not to interfere by penal proceedings with the trade
nominally licensed, if the required taxes are paid. The power to
tax is not questioned, nor the power to impose penalties for non-
payment of taxes. The granting of a license, therefore, must be
regarded as nothing more than a mere form of imposing a tax, and
of implying nothing except that the licensee shall be subject to no
penalties under national law, if he pays it.
This construction is warranted by the practice of the govern-
ment from its organization. As early as 1794 retail dealers in
wines or in foreign distilled liquors were required to obtain and
pay for licenses, and renew them annually, and penalties were im-
posed for carrying on the business without compliance with the
law. 1 In 1802 these license-taxes and the other excise or internal
taxes, which had been imposed under the exigencies of the time,
being no longer needed, were abolished. 2 In 1813 revenue from
excise was again required, and laws were enacted for the licensing
of retail dealers in foreign merchandise, as well as to retail dealers
in wines and various descriptions of liquors. 3 These taxes also
were abolished after the necessity for them had passed away, in
1817. 4 No claim was ever made that the licenses thus required
gave authority to exercise trade or carry on business within a State.
They were regarded merely as a convenient mode of imposing taxes
on several descriptions of business, and of ascertaining the par-
ties from whom such taxes were to be collected.
With this course of legislation in view, we cannot say that there
is anything contrary to the Constitution in these provisions of the
recent or existing internal revenue acts relating to licenses.
Nor are we able to perceive the force of the cither objection made
in argument, that the dealings for which licenses are required be-
ing prohibited by the laws of the State, cannot be taxed by the
National government. There would be great force in it if the
licenses were regarded as giving authority, for then there would
be a direct conflict between National and State legislation on a
subject which the Constitution places under the exclusive con-
trol of the States.
But, as we have already said, these licenses give no authority.
They are mere receipts for taxes. And this would be. true had the
internal revenue act of 1864, like those of 1794 and 1813, been
1 1 Stat. at Large, 377. 3 3 Id., 72.
2 Id.. 148. 4 id., 401.
CRANDALL v. STATE OF NEVADA. 49
silent on this head. But it was not silent. It expressly provided,
in section sixty-seven, that no license provided for in it should,
if granted, be construed to authorize any business with any State
or Territory prohibited by the laws thereof, or so as to prevent the
taxation of the same business by the State. This provision not
only recognizes the full control by the State of business carried
on within their limits, but extends the same principle, so far as
sucli business licensed by the national government is concerned,
to the Territories.
There is nothing hostile or contradictory, therefore, in the acts
of Congress to the legislation of the States. What the latter pro-
hibits, the former, if the business is found existing notwithstand-
ing the prohibition, discourages by taxation. The two lines of
legislation proceed in the same direction, and tend to the same
result. It would be a judicial anomaly, as singular as indefensi-
ble, if we should hold a violation of the laws of the State to be
a justification for the violation of the laws of the Union.
These considerations require an affirmative answer to the first
general question, whether the several defendants, charged with
carrying on business prohibited by State laws, without the licenses
required by acts of Congress can be convicted and condemned to
pay the penalties imposed by these acts? . . .
CRANDALL v. STATE OF NEVADA.
6 Wallace, 35. Decided 1867.
Error to the Supreme Court of Nevada.
In 1865, the legislature of Nevada enacted that "there shall be
levied and collected a capitation tax of one dollar upon every per-
son leaving the State by any railroad, stage-coach, or other vehicle
engaged or employed in the business of transporting passengers
for hire," and that the proprietors, owners, and corporations so
engaged should pay the said tax of one dollar for each and every
person so conveyed or transported from the State. For the pur-
pose of collecting the tax, another section required from per-
sons engaged in such business, or their agents, a report every
month, under oath, of the number of passengers so transported,
and the payment of the tax to the sheriff or other proper officer.
With the statute in existence, Crandall, who was the agent of a
4
50 CASES ON CONSTITUTIONAL LAW.
stage company engaged in carrying passengers through the State
of Nevada, was arrested for refusing to report the number of pas-
sengers that had been carried by the coaches of his company, and
for refusing to pay the tax of one dollar imposed on each passen-
ger by the law of that State. He pleaded that the law of the State
under which he was prosecuted was void, because it was in con-
flict with the Constitution of the United States; and his plea
being overruled, the case came into the Supreme Court of the State.
That court considering that the tax laid was not an impost on
"exports," nor an interference with the power of Congress "to
regulate commerce among the several States" decided against
the right thus set up under the Federal Constitution. Its judg-
ment was now here for review. . . .
MR. JUSTICE MILLER delivered the opinion of the court.
The, question for the first time presented to the court by this
record is one of importance. The proposition to be considered
is the right of a State to levy a tax upon persons residing iu the
State who may wish to get out of it, and upon persons not residing
in it who may have occasion to pass through it.
It is to be regretted that such a question should be submitted
to our consideration, with neither brief nor argument on the
part of plaintiff in error. But our regret is diminished by the
reflection, that the principles which must govern its determination
have been the subject of much consideration in cases heretofore
decided by this court.
It is claimed by counsel for the State that the tax thus levied
is not a tax upon the passenger, but upon the business of the
carrier who transports him.
If the act were much more skillfully drawn to sustain this hy-
pothesis than it is, we should be very reluctant to admit that any
form of words, which had the effect to compel every person travel-
ing through the country by the common and usual modes of public
conveyance to pay a specific sum to the State, was not a tax upon
the right thus exercised. The statute before us is not, however,
embarrassed by any nice difficulties of this character. The lan-
guage which we have just quoted is, that there shall be levied and
collected a capitation tax upon every person leaving the State by
any railroad or stage-coach; and the remaining provisions of the
act, which refer to this tax, only provide a mode of collecting it.
The officers and agents of the railroad companies, and the proprie-
tors of the stage-coaches are made responsible for this, and so be-
come the collectors of the tax.
CRANDALL v. STATE OF NEVADA. 51
"We shall have occasion to refer hereafter somewhat in detail,
to the opinions of the judges of this court in The Passenger Cases, 1
in which there were wide differences on several points involved in
the case before us. In the case from New York then under consid-
eration, the statute provided that the health commissioner should
be entitled to demand and receive from the master of every vessel
that should arrive in the port of New York, from a foreign port,
one dollar and fifty cents for every cabin passenger, and one dollar
for each steerage passenger, and from each coasting vessel, twenty-
five cents for every person on board. That statute does not use
language so strong as the Nevada statute, indicative of a personal
tax on the passenger, but merely taxes the master of the vessel ac-
cording to the number of his passengers; but the court held it
to be a tax upon the passenger, and that the master was the agent
of the State for its collection. Chief Justice Taney, while he
differed from the majority of the court, and held the law to be
valid, said of the tax levied by the analogous statute of Massa-
chusetts, that "its payment is the condition upon which the State
permits the alien passenger to come on shore and mingle with
its citizens, and to reside among them. It is demanded of the cap-
tain; and not from every separate passenger, for convenience of
collection. But the burden evidently falls upon the passenger, and
he, in fact, pays it, either in the enhanced price of his passage
or directly to the captain before he is allowed to embark for the
voyage. The nature of the transaction, and the ordinary course
of business, show that this must be so."
Having determined that the statute of Nevada imposes a tax
upon the passenger for the privilege of leaving the State, or pass-
ing through it by the ordinary mode of passenger travel, we pro-
ceed to inquire if it is for that reason in conflict with the Con-
stitution of the United States.
In the argument of the counsel for the defendant in error, and
in the opinion of the Supreme Court of Nevada, which is found
in the record, it is assumed that this question must be decided
by an exclusive reference to two provisions of the Constitution,
namely: that which forbids any State, without the consent of
Congress, to lay any imposts or duties on imports or exports, and
that which confers on Congress the power to regulate commerce
with foreign nations and among the several States.
The question as thus narrowed is not free from difficulties. Can
a citizen of the United States traveling from one part of the Union
17 Howard, 283.
52 CASES ON CONSTITUTIONAL LAW.
to another be called an export? It was insisted in The Passenger
Cases, to which we have already referred, that foreigners coming
to this country were imports within the meaning of the Constitu-
tion, and the provision of that instrument that the migration
or importation of such persons as any of the States then existing
should think proper to admit, should not be prohibited prior to
the year 1808, but that a tax might be imposed on such impor-
tation, was relied on as showing that the word import, applied to
persons as well as to merchandise. It was answered that this
latter clause had exclusive reference to slaves, who were property
as well as persons, and therefore proved nothing. While some
of the judges who concurred in holding those laws unconstitu-
tional, gave as one of their reasons that they were taxes on im-
ports, it is evident that this view did not receive the assent of the
majority of the court. The application of this provision of the
Constitution to the proposition which we have stated in regard
to the citizen, is still less satisfactory than it would be to the case
of foreigners migrating to the United States.
But it is unnecessary to consider this point further in the view
which we have taken of the case.
As regards the commerce clause of the Constitution, two prop-
ositions are advanced on behalf of the defendant in error. 1.
That the tax imposed by the State on passengers is not a regula-
tion of commerce. 2. That if it can be so considered, it is one
of the powers which the State can exercise, until Congress has so
legislated as to indicate its intention to exclude State legislation
on the same subject.
The proposition that the power to regulate commerce, as granted
to Congress by the Constitution, necessarily excludes the exercise
by the States of any of the powers thus granted, is one which
has been much considered in this court, and the earlier discus-
sions left the question in much doubt. As late as the January
Term, 1849, the opinions of the judges in The Passenger Cases
show that the question was considered to be one of much impor-
tance in those cases, and was even then unsettled, though previous
decisions of the court were relied on by the judges themselves
as deciding it in different ways. It was certainly, so far as those
cases affected it, left an open question.
In the case of Cooley v. Board of Wardens, 1 four years later,
the same question came directly before the court in reference to
the local laws of the port of Philadelphia concerning pilots.
112 Howard, 299.
CRANDALL v. STATE OF NEVADA. 53
. . . Perhaps no more satisfactory solution has ever been given
of this vexed question than the one furnished by the court in that
case. . . .
It may be that under the power to regulate commerce among
the States, Congress has authority to pass laws, the operation of
which would be inconsistent with the tax imposed by the State
of Nevada, but we know of no such statute now in existence.
Inasmuch, therefore, as the tax does not itself institute any regu-
lation of commerce of a national character, or which has a uniform
operation over the whole country, it is not easy to maintain, in
view of the principles on which those cases are decided, that it
violates the clause of the Federal Constitution which we have had
under review.
But we do not concede that the question before us is to be de-
termined by the two clauses of the Constitution which we have
been examining.
The people of these United States constitute one nation. They
have a government in which all of them are deeply interested.
This government has necessarily a capital established by law, where
its principal operations are conducted. Here sits its legislature,
composed of senators and representatives, from the States and
from the people of the States. Here resides the President, direct-
ing, through thousands of agents, the execution of the laws over
all this vast country. Here is the seat of the supreme judicial
power of the nation, to which all its citizens have a right to resort
to claim justice at its hands. Here are the great executive de-
partments, administering the offices of the mails, of the public
lands, of the collection and distribution of the public revenues,
and of our foreign relations. These are all established and con-
ducted under the admitted powers of the Federal government.
That government has a right to call to this point any or all of its
citizens to aid in its service, as members of the Congress, of the
courts, of the executive departments, and to fill all its other
offices; and this right cannot be made to depend upon the pleas-
ure of a State over whose territory they must pass to reach the
point where these services must be rendered. The government
also, has its offices of secondary importance in all other parts of the
country. On the sea-coasts and on the rivers it has its ports of
entry. In the interior it has its land offices, its revenue offices,
and its sub-treasuries. In all these it demands the services of its
citizens, and is entitled to bring them to those points from all
quarters of the nation, and no power can exist in a State to obstruct
54 CASES ON CONSTITUTIONAL LAW.
this right that would not enable it to defeat the purposes for which
the government w r as established.
The Federal power has a right to declare and prosecute wars,
and, as a necessary incident, to raise and transport troops through
and over the territory of any State of the Union.
If this right is dependent in any sense, however limited, upon
the pleasure of a State, the government itself may be overthrown
by an obstruction to its exercise. Much the largest part of the
transportation of troops during the late rebellion was by railroads,
'and largely through States whose people were hostile to the Union.
If the tax levied by Xevada on railroad passengers had been the
law of Tennessee, enlarged to meet the wishes of her people, the
treasury of the United States could not have paid the tax nec-
essary to enable its armies to pass through her territory.
But if the government has these rights on her own account, the
citizen also has correlative rights. He has the right to come to
the seat of government to assert any claim he may have upon that
government, or to transact any business he may have with it. To
seek its protection, to share its offices, to engage in administering
its functions. He has a right to free access to its sea-ports, through
which all the operations of foreign trade and commerce are con-
ducted, to the sub-treasuries, the land offices, the revenue offices,
and the courts of justice in the several States, and this right is
in its nature independent of the will of any State over whose soil
he must pass in the exercise of it.
The views here advanced are neither novel nor unsupported
by authority. The question of the taxing power of the States, as
its exercise has affected the functions of the Federal government,
has been repeatedly considered by this court, and the right of the
States in this mode to impede or embarrass the constitutional op-
erations of that government, or the rights which its citizens hold
under it, has been uniformly denied. . . . [Here follows a
discussion of McCulloch v. Md., 4 Wheat.., 316; Brown v. Md.,
12 Wheat., 419; Weston v. Charleston, 2 Pet., 449.]
In all these cases, the opponents of the taxes levied by the States
were able to place their opposition on no express provision of the
Constitution, except in that of Brown v. Maryland. But in all the
other cases, and in that case also, the court distinctly placed the
invalidity of the State taxes on the ground that they interfered
with an authority of the Federal government, which was itself
only to be sustained as necessary and proper to the exercise of some
other power expressly granted.
In The Passenger Cases, to which reference has already been
CRANDALL v. STATE OF NEVADA. 55
made, Justice Grier, with whom Justice Catron concurred, makes
this one of the four propositions on which they held the tax void
in those cases. Judge Wayne expresses his dissent to Judge Grier's
views; and perhaps this ground received the concurrence of more
of the members of the court who constituted the majority than
any other. But the principles here laid down may be found more
clearly stated in the dissenting opinion of the Chief Justice in those
cases, and with more direct pertinency to the case now before
us than anywhere else. After expressing his views fully in favor
of the validity of the tax, which he said had exclusive reference
to foreigners, so far as those cases were concerned, he proceeds
to say, for the purpose of preventing misapprehension, that so far
as the tax affected American citizens it could not in his opinion
be maintained. He then adds: "Living as we do under a common
government, charged with the great concerns of the whole Union,
every citizen of the United States from the most remote States
or territories, is entitled to free access, not only to the principal
departments established at Washington, but also to its judicial
tribunals, and public offices in every State in the Union. . . .
For all the great purposes for which the Federal government was
formed we are one people, with one common country. We are all
citizens of the United States, and as members of the same com-
munity must have the right to pass and repass through every part
of it without interruption, as freely as in our own States. And a
tax imposed by a State, for entering its territories or harbors, is
inconsistent with the rights which belong to citizens of other
States as members of the Union, and with the objects which that
Union was intended to attain. Such a power in the States could
produce nothing but discord and mutual irritation, and they very
clearly do not possess it/'
Although these remarks are found in a dissenting opinion, they
do not relate to the matter on which the dissent was founded.
They accord with the inferences which we have already drawn from
the Constitution itself, and from the decisions of this court in
exposition of that instrument.
Those principles, as we have already stated them in this opinion,
must govern the present case. . . .
Judgment reversed, and the case remanded to the Supreme Court
of the State of Nevada, with directions to discharge the plaintiff
in error from custody.
56 CASES ON CONSTITUTIONAL LAW.
iVEAZIE BANK v. FENNO.
8 Wallace, 533. Decided 1869.
ON certificate of division for the Circuit Court for Maine.
The Constitution ordains that:
"The Congress shall have power
"To lay and collect taxes, duties, imposts, and excises, to pay
the debts and provide for the common defense and general welfare
of the United States; but all duties, imposts, and excises shall be
uniform throughout the United States.
"To regulate commerce with foreign nations, and among the
several States, and with the Indian tribes.
"To coin money, regulate the value thereof, and of foreign
coin."
It also ordains that:
"Direct taxes shall be apportioned among the several States
. . . according to their respective numbers."
"N"o capitation or other direct tax shall be laid, unless in pro-
portion to the census or enumeration hereinbefore directed to be
made."
"The powers not delegated to the United States by the Consti-
tution nor prohibited by it to the States, are reserved to the States
respectively, or to the people."
With these provisions in force as fundamental law, Congress
passed, July 13th, 1866, 1 an act, the second clause of the 9th
section of which enacts:
"That every National banking association, State bank, or State
banking association, shall pay a tax of ten per centum on the
amount of notes of any person, State bank, or State banking asso-
ciation, used for circulation and paid out by them after the 1st day
of August, 1866, and such tax shall be assessed and paid in such
manner as shall be prescribed by the commissioner of internal
revenue."
Under this act a tax of ten per cent, was assessed upon the
Veazie Bank, for its bank notes issued for circulation, after the
day named in the act.
The Veazie Bank was a corporation chartered by the State of
Maine, with authority to issue bank notes for circulation, and
the notes on which the tax imposed by the act was collected, were
issued under this authority. There was nothing in the case show-
1 14 Stat. at Large, 146.
VEAZIE BANK v. FENNO. 57
ing that the bank sustained any relation to the State as a financial
agent, or that its authority to issue notes was conferred or exer-
cised with any special reference to other than private interests.
The bank declined to pay the tax, alleging it to be unconstitu-
tional, and the collector of internal revenue, one Fenno, was pro-
ceeding to make a distraint in order to collect it, with penalty
and costs, when, in order to prevent this, the bank paid it under
protest. An unsuccessful claim having been made on the com-
missioner of internal revenue for reimbursement, suit was brought
by the bank against the collector, in the court below.
The case was presented to that court upon an agreed statement
of facts, and, upon a prayer for instructions to the jury, the judges
found themselves opposed in opinion on three questions, the first
of which the two others differing from it in form only, and not
needing to be recited was this:
"Whether. the second clause of the 9th section of the act of
Congress of the 13th of July, 1866, under which the tax in this
case was levied and collected, is a valid and constitutional law."
The CHIEF JUSTICE delivered the opinion of the court.
The necessity of adequate provision for the financial exigencies
created by the late rebellion, suggested to the administrative and
legislative departments of the government important changes in
the systems of currency and taxation which had hitherto prevailed.
These changes, more or less distinctly shown in administrative
recommendations, took form and substance in legislative acts. We
have now to consider, within a limited range, those which relate
to circulating notes and the taxation of circulation.
At the beginning of the rebellion the circulating medium con-
sisted almost entirely of bank notes issued by numerous independ-
ent corporations variously organized under State legislation, of
various degrees of credit, and very unequal resources, administered
often with great, and not unfrequently, with little skill, prudence,
and integrity. The acts of Congress, then in force, prohibiting
the receipt or disbursement, in the transactions of the National
government, of anything except gold and silver, and the laws of
the States requiring the redemption of bank notes in coin on
demand, prevented the disappearance of gold and silver from cir-
culation. There was, then, NO national currency except coin;
there was no general 2 regulation of any other by National legisla-
2 See the act of December 27th, the District of Columbia, 10 Stat.
1854, to suppress small notes in at Large, 599.
58 CASES ON CONSTITUTIONAL LAW.
tion; and no national taxation was imposed in any form on the
State bank circulation.
The first act authorizing the emission of notes by the Treasury
Department for circulation was that of July 17th, 1861. 2 The
notes issued under this act were treasury notes, payable on demand
in coin. The amount authorized by it was $50,000,000, and was
increased by the act of February 12th, 1862 3 to $60,000,000.
On the 31st of December, 1861, the State banks suspended specie
payment. Until this time the expenses of the war had been paid
in coin, or in the demand notes just referred to; and for some
time aftenvards, they continued to be paid in these notes, which,
if not redeemed in coin, were received as coin in the payment of
duties.
Subsequently, on the 25th day of February, 1862, 4 a new policy
became necessary in consequence of the suspension and of the
condition of the country, and was adopted. The notes hitherto
issued, as has just been stated, were called treasury notes, and
were payable on demand in coin. The act now passed authorized
the issue of bills for circulation under the name of United States
notes, made payable to bearer, but not expressed to be payable on
demand, to the amount of $150,000,000; and this amount was in-
creased by subsequent acts to $450,000,000, of which $50,000,000
were to be held in reserve, and only to be issued for a special pur-
pose, and under special directions as to the withdrawal from circu-
lation. 5 These notes, until after the close of the war, were always
convertible into, or receivable at par for bonds payable in coin,
and bearing coin interest, at a rate not less than five per cent, and
the acts by which they were authorized, declared them to be law-
ful money and a legal tender.
This currency, issued directly by the government for the dis-
bursement of the war and other expenditures, could not, obviously,,
be a proper object of taxation.
But on the 25th of February, 1863, the act authorizing Na-
tional banking associations 6 was passed, in which, for the first
time during many years, Congress recognized the expediency and
duty of imposing a tax upon currency. By this act a tax of two
per cent annually was imposed on the circulation of the associa-
tions authorized by it. Soon after, by the act of March 3d, 1863, 7
a similar but lighter tax of one per cent annually was imposed on
2 12 Stat. at Large, 259. Act of March 3d, 1863, Ib., 710.
Ib., 338. e Act of March 3d, 1863, 12 Ib.,
4 Ib., 345. 670.
B Act of July llth, 1862, Ib., 532; ^ Ib., 712.
VEAZIE BANK v. FBNNO. 59
the circulation of State banks in certain proportions to their cap-
ital, and of two per cent, on the excess; and the tax on the Na-
tional associations was reduced to the same rates.
Both acts also imposed taxes on capital and deposits, which
need not be noticed here.
At a later date, by the act of June 3d, 1864, 8 which was substi-
tuted for the act of February 25th, 1863, authorizing National
banking associations, the rate of tax on circulation was continued
and applied to the whole amount of it, and the shares of their
stockholders were also subjected to taxation by the States; and
a few days afterwards, by the act of June 30th, 1864, 9 to provide
ways and means for the support of the government, the tax on the
circulation of the State banks was also continued at the same
annual rate of one per cent., as before, but payment was required
in monthly installments of one-twelfth of one per cent., with
monthly reports from each State bank of the amount in circulation.
It can hardly be doubted that the object of this provision was to
inform the proper authorities of the exact amount of paper money
in circulation, with a view to its regulation by law.
The first step taken by Congress in that direction was by the act
of July 17, 1862, 10 prohibiting the issue and circulation of notes
under one dollar by any person or corporation. The act just re-
ferred to was the next, and it was followed some months later by
the act of March 3d, 1865, amendatory of the prior internal rev-
enue acts, the sixth section of which provides, "that every National
banking association, State bank, or State banking association, shall
pay a tax of ten per centum on the amount of the notes of any
State bank, or State banking association, paid out by them after
the 1st day of July, 1866."
The same provision was re-enacted, with a more extended appli-
cation, on the 13th of July, 1866. in these words: "Every Na-
tional banking association, State bank, or State banking associa-
tion, shall pay a tax of ten per centum on the amount of notes of
any person, State bank, or State banking association used for cir-
culation, and paid out by them after the first day of August, 1866;
and such tax shall be assessed and paid in such manner as shall be
prescribed by the Commissioner of Internal Bevenue." 12
The constitutionality of this last provision is now drawn in ques-
tion, and this brief statement of the recent legislation of Congress
s 13 Ib., 111. 11 13 Ib., 484.
o Ib., 277. 12 14 Ib., 146.
10 Act of March 3d, 1863, 12 Ib.,
592.
60 CASES ON CONSTITUTIONAL LAW.
has been made for the purpose of placing in a clear light its scope
and bearing, especially as developed in the provisions just cited.
It will be seen that when the policy of taxing bank circulation
was first adopted in 1863, Congress was inclined to discriminate
for, rather than against, the circulation of the State banks; but
that when the country had been sufficiently furnished with a Na-
tional currency by the issues of United States notes and of National
bank notes, the discrimination was turned, and very decidedly
turned, in the opposite direction.
The general question now before us is, whether or not the tax of
ten per cent., imposed on State banks or National banks paying
out the notes of individuals or State banks used for circulation, is
repugnant to the Constitution of the United States.
In support of the position that the act of Congress, so far as it
provides for the levy and collection of this tax, is repugnant to the
Constitution, two propositions have been argued with much force
and earnestness.
The first is that the tax in question is a direct tax, and has not
been apportioned among the States agreeably to the Constitution.
The second is that the act imposing the tax impairs a franchise
granted by the State, and that Congress has no power to pass any
law with that intent or effect.
The first of these propositions will be first examined. . . .
Much diversity of opinion has always prevailed upon the ques-
tion, what are direct taxes? Attempts to answer it by reference to
the definitions of political economists have been frequently made,
but without satisfactory results. The enumeration of the different
kinds of taxes which Congress was authorized to impose was proba-
bly made with little reference to their speculations. . . . We
are obliged therefore to resort to historical evidence, and to seek
the meaning of the words in the use and in the opinion of those
whose relations to the government, and means of knowledge, war-
ranted them in speaking with authority. And considered in this
light, the meaning and application of the rule, as to direct taxes,
appears to us quite clear. It is, as we think, distinctly shown in
every act of Congress on the subject.
In each of these acts, a gross sum was laid upon the United
States, and the total amount was apportioned to the several States,
according to their respective numbers of inhabitants, as ascertained
by the last preceding census. Having been apportioned, pro-
vision was made for the imposition of the tax upon the subjects
specified in the act, fixing. -its total sum. . . . In each instance,
the total sum was apportioned among the States, by the constitu-
VEAZIE BANK v. FENNO. 61
tional rule, and was assessed at prescribed rates, on the subjects of
the tax. These subjects, in 1798, 1 1813, 2 1815, 3 1816, 4 were lands,
improvements, dwelling-houses, and slaves; and in 1861, lands,
improvements, and dwelling-houses only. Under the act of 1798,
slaves were assessed at fifty cents on each; under the other acts,
according to valuation by assessors. This review shows that per-
sonal property, contracts, occupations, and the like, have never
been regarded by Congress as proper subjects of direct tax. . . .
[After a discussion of Hylton v. U. S., the court continues:]
It may be safely assumed, therefore, as the unanimous judgment
of the court, that a tax on carriages is not a direct tax. And it
may further be taken as established upon the testimony of Pater-
son, that the words direct taxes, as used in the Constitution, com-
prehended only capitation taxes, and taxes on land, and perhaps
taxes on personal property by general valuation and assessment of
the various descriptions possessed within the several States.
It follows necessarily that the power to tax without apportion-
ment extends to all other objects. Taxes on other objects are in-
cluded under the heads of taxes not direct, duties, imposts, and
excises, and must be laid and collected by the rule of uniformity.
The tax under consideration is a tax on bank circulation, and may
very well be classed under the head of duties. Certainly it is not,
in the sense of the Constitution, a direct tax. It may be said to
come within the same category of taxation as the tax on incomes
of insurance companies, which this court, at the last term, in the
case of Pacific Insurance Company v. Soule, 5 held not to be a
direct tax.
Is it, then, a tax on a franchise granted by a State, which Con-
gress, upon any principle exempting the reserved powers of the
States from impairment by taxation, must be held to have no
authority to lay and collect? We do not say that there may not
be such a tax. It may be admitted that the reserved rights of
the States, such as the right to pass laws, to give effect to laws
through executive action, to administer justice through the
courts, and to employ all necessary agencies for legitimate pur-
poses of State government, are not proper subjects of the taxing
power of Congress. But it cannot be admitted that franchises
granted by a State are necessarily exempt from taxation; for
franchises are property, often very valuable and productive prop-
i Act of July 9th, 1798, 1 Stat. at Id., 166.
Large, 586. * id., 255.
2 Act of July 22d, 1813, 3 Ib., 26. 6 7 Wallace, 434.
62 CASES ON CONSTITUTIONAL LAW.
erty; and when not conferred for the purpose of giving effect to
some reserved power of a State, seem to be as properly objects of
taxation as any other property.
But in the case before us the object of taxation is not the fran-
chise of the bank, but property created, or contracts made and
issued under the franchise, or power to issue bank bills. A railroad
company, in the exercise of its corporate franchises, issues freight
receipts, bills of lading, and passenger tickets; and it cannot be
doubted that the organization of railroads is quite as important to
the State as the organization of banks. But it will hardly be ques-
tioned that these contracts of the company are objects of taxation
within the powers of Congress, and not exempted by any relation
to the State which granted the charter of the railroad. And it
seems difficult to distinguish the taxation of notes issued for cir-
culation from the taxation of these railroad contracts. Both de-
scriptions of contracts are means of profit to the corporations
which issue them; and both, as we think, may properly be made
contributory to the public revenue.
It is insisted, however, that the tax in the case before us is ex-
cessive, and so excessive as to indicate a purpose on the part of
Congress to destroy the franchise of the bank, and is, therefore,
beyond the constitutional power of Congress.
The first answer to this is that the judicial cannot prescribe to
the legislative department of the government limitations upon
the exercise of its acknowledged powers. The power to tax may
be exercised oppressively upon persons, but the responsibility of
the legislature is not to the courts, but to the people by whom its
members are elected. So if a particular tax bears heavily upon a
corporation, or a class of corporations, it cannot, for that reason
only, be pronounced contrary to the Constitution.
But there is another answer which vindicates equally the wisdom
and the power of Congress.
It cannot be doubted that under the Constitution the power to
provide a circulation of coin is given to Congress. And it is set-
tled by the uniform practice of the government and by repeated
decisions, that Congress may constitutionally authorize the emis-
sion of bills of credit. It is not important here, to decide whether
the quality of legal tender, in payment of debts, can be constitu-
tionally imparted to these bills; it is enough to say, that there can
be no question of the power of the government to emit them; to
make them receivable in payment of debts to itself; to fit them for
use by those who see fit to use them in all the transactions of com-
merce; to provide for their redemption; to make them a currency,
VEAZIE BANK v. FENNO. 63
uniform in value and description, and convenient and useful for
circulation. These powers, until recently, were only partially and
occasionally exercised. Lately, however, they have been called
into full activity, and Congress has undertaken to supply a cur-
rency for the entire country.
The methods adopted for the supply of this currency were briefly
explained in the first part of this opinion. It now consists of coin,
of United States notes, and of the notes of the National banks.
Both descriptions of notes may be properly described as bills of
credit, for both are furnished by the government; both are issued
on the credit of the government; and the government is responsi-
ble for the redemption of both; primarily as to the first descrip-
tion, and immediately upon default of the bank, as to the second.
When these bills shall be made convertible into coin, at the will
of the holder, this currency will, perhaps, satisfy the wants of the
community, in respect to a circulating medium, as perfectly as
any mixed currency that can be devised.
Having thus, in the exercise of undisputed constitutional powers,
undertaken to provide a currency for the whole country, it cannot
be questioned that Congress may, constitutionally, secure the ben-
efit of it to the people by appropriate legislation. To this end, Con-
gress has denied the quality of legal tender to foreign coins, and
has provided by law against the imposition of counterfeit and base
coin on the community. To the same end, Congress may restrain,
by suitable enactments, the circulation as money of any notes not
issued under its own authority. Without this power, indeed, its
attempts to secure a sound and uniform currency for the country
must be futile.
Viewed in this light, as well as in the other light of a duty on
contracts or property, we cannot doubt the constitutionality of
the tax under consideration. The three questions certified from
the Circuit Court of the District of Maine must, therefore, be an-
swered Affirmatively.
[MR JUSTICE NELSON rendered a dissenting opinion, in which
JUSTICE DAVIS concurred.]
64 CASES ON CONSTITUTIONAL LAW.
THE COLLECTOR v. DAY.
11 Wallace, 113. Decided 1870.
ERROR to the Circuit Court for the District of Massachusetts.
[The case grew out of an attempt of a collector of the internal
revenue of the United States to collect a tax on the salary of a
judge of the State of Massachusetts levied in accordance with
certain acts of Congress passed in 1864, '65, '66, and '67.]
MR. JUSTICE NELSON delivered the opinion of the court.
The case presents the question whether or not it is competent
for Congress, under the Constitution of the United States, to im-
pose a tax upon the salary of a judicial officer of a State?
In Dobbins v. The Commissioners of Erie County, 1 it was de-
cided that it was not competent for the legislature of a State to
levy a tax upon the salary or emoluments of an officer of the
United States. The decision was placed mainly upon the ground
that the officer was a means or instrumentality employed for carry-
ing into effect some of the legitimate powers of the government,
which could not be interfered with by taxation or otherwise by the
States, and that the salary or compensation for the service of the
officer was inseparably connected with the office; that if the officer,
as such was exempt, the salary assigned for his support or main-
tenance while holding the office was also, for like reasons, equally
exempt.
The cases of McCulloch v. Maryland, 2 and Weston v. Charles-
ton, 3 were referred to as settling the principle that governed the
case, namely, "that the State governments cannot lay a tax upon
the constitutional means employed by the government of the Union
to execute its constitutional powers." . . . [Here follow cita-
tions from these cases.]
It is conceded in the case of McCulloch v. Maryland, that the
power of taxation by the States was not abridged by the grant of a
similar power to the government of the Union; that it was re-
tained by the States, and that the power is to be concurrently
exercised by the two governments; ajnd also that there is no ex-
press constitutional prohibition upon the States against taxing the
means or instrumentalities of the general government. But it was
1 16 Peters, 435. s 2 Peters, 449.
2 4 Wheaton, 316.
THE COLLECTOR v. DAY. 65
held, and we agree properly held, to be prohibited by necessary
implication; otherwise, the States might impose taxation to an
extent that would impair, if not wholly defeat, the operations of
the Federal authorities when acting in their appropriate sphere.
These views, we think, abundantly establish the soundness of
the decision of the case of Dobbins v. The Commissioners of Erie,
which determined that the States were prohibited, upon a proper
construction of the Constitution, from taxing the salary or emolu-
ments of an officer of the government of the United States. And
we shall now proceed to show that, upon the same construction of
that instrument, and for like reasons, that government is prohib-
ited from taxing the salary of the judicial officer of a State.
It is a familiar rule of construction of the Constitution of the
Union, that the sovereign powers vested in the State governments
by their respective constitutions remained unaltered and unim-
paired, except so far as they were granted to the government of the
United States. That the intention of the framers of the Consti-
tution in this respect might not be misunderstood, this rule of
interpretation is expressly declared in the Tenth Article of the
amendments, namely: "The powers not delegated to the United
States are reserved to the States respectively, or, to the people."
The government of the United States, therefore, can claim no
powers which are not granted to it by the Constitution, and the
powers actually granted must be such as are expressly given, or
given by necessary implication.
The general government, and the States, although both exist
within the same territorial limits, are separate and distinct sover-
eignties, acting separately and independently of each other, within
their respective spheres. The former in its appropriate sphere is
supreme; but the States within the limits of their powers not
granted, or, in the language of the Tenth Amendment, "reserved,"
are as independent of the general government as that government
within its sphere is independent of the States.
The relations existing between the two governments are well
stated by the present Chief Justice in the case of Lane County v.
Oregon, 7 Wallace, 76. "Both the States and the United States,"
he observed, "existed before the Constitution. The people,
through that instrument, established a more perfect union, by
substituting a national government, acting with ample powers di-
rectly upon the citizens, instead of the Confederate government,
which acted with powers greatly restricted, only upon the States.
But, in many of the articles of the Constitution, the necessary
existence of the States, and within their proper spheres, the inde-
5
66 CASES ON CONSTITUTIONAL LAW.
pendent authority of the States, are distinctly recognized. To
them nearly the whole charge of interior regulation is committed
or left; to them, and to the people, all powers, not expressly dele-
gated to the national government, are reserved." Upon looking
into the Constitution, it will be found that but few of the articles
in that instrument could be carried into practical effect without
the existence of the States.
Two of the great departments of the government, the executive
and legislative, depend upon the exercise of the powers, or upon
the people of the States. The Constitution guarantees to the
States a republican form of government, and protects each against
invasion or domestic violence. Such being the separate and inde-
pendent condition of the States in our complex system, as recog-
nized by the Constitution, and the existence of which is so indis-
pensable, that, without them, the general government itself would
disappear from the family of nations, it would seem to follow, as
a reasonable, if not a necessary consequence, that the means and
instrumentalities employed for carrying on the operations of their
governments, for preserving their existence, and fulfilling the high
and responsible duties assigned to them in the Constitution, should
be left free and unimpaired, should not be liable to be crippled,
much less defeated, by the taxing power of another government,
which power acknowledges no limits but the will of the legislative
body imposing the tax. And, more especially, those means and
instrumentalities which are the creation of their sovereign and re-
served rights, one of which is the establishment of the judicial
department, and the appointment of officers to administer their
laws. Without this power, and the exercise of it, we risk nothing
in saying that no one of the States under the form of government
guaranteed by the Constitution could long preserve its existence.
A despotic government might. We have said that one of the
reserved powers was that to establish a judicial department: it
would have been more accurate, and in accordance with the exist-
ing state of things at the time, to have said the power to maintain
a judicial department. All of the thirteen States were in the pos-
session of this power, and had exercised it at the adoption of the
Constitution; and it is not pretended that any grant of it to the
general government is found in that instrument. It is, therefore,
one of the sovereign powers vested in the States by their constitu-
tions, which remained unaltered and unimpaired, and in respect
to which the State is as independent of the general government
as that government is independent of the States.
The supremacy of the general government, therefore, so much
THE COLLECTOR V. DAY. 67
relied on in the argument of the counsel for the plaintiff in error,
in respect to the question before us, cannot be maintained. The
two governments are upon an equality, and the question is whether
the power "to lay and collect taxes" enables the general govern-
ment to tax the salary of a judicial officer of the State, which
officer is a means or instrumentality employed to carry into exe-
cution one of its most important functions, the administration of
the laws, and which concerns the exercise of a right reserved to the
States?
We do not say the mere circumstance of the establishment of
the judicial department, and the appointment of officers to admin-
ister the laws, being among the reserved powers of the State, dis-
ables the general government from levying the tax, as that de-
pends upon the express power "to lay and collect taxes," but it
shows that it is an original inherent power never parted with, and,
in respect to which, the supremacy of that government does not
exist, and is of no importance in determining the question; and
further, that being an original and reserved power, and the judicial
officers appointed under it being a means or instrumentality
employed to carry it into effect, the right and necessity of its unim-
paired exercise, and the exemption of the officer from taxation by
the general government stand upon as solid a ground, and are
maintained by principles and reasons as cogent, as those which led
to the exemption of the Federal officer in Dobbins v. The Com-
misisoners of Erie from taxation by the State; for, in this respect,
that is, in respect to the reserved powers, the State is as sovereign
and independent as the general government. And if the means
and instrumentalities employed by that government to carry into
operation the powers granted to it are, necessarily, and, for the
sake of self-preservation, exempt from taxation by the States, why
are not those of the States depending upon their reserved powers,
for like reasons, equally exempt from Federal taxation? Their
unimpaired existence in the one case is as essential as in the other.
It is admitted that there is no express provision in the Constitu-
tion that prohibits the general government from taxing the means
and instrumentalities of the States, nor is there any prohibiting
the States from taxing the means and instrumentalities of that
government. In both cases the exemption rests upon necessary
implication, and is upheld by the great law of self-preservation;
as any government, whose means employed in conducting its
operations, if subject to the control of another and distinct gov-
ernment can exist only at the mercy of that government. Of what
avail are these means if another power may tax them at discretion?
68 CASES ON CONSTITUTIONAL LAW.
But we are referred to the Veazie Bank v. Fenno, 8 Wallace, 533,
in support of this power of taxation. That case furnishes a strong
illustration of the position taken by the Chief Justice in McCulloch
v. Maryland, namely, "That the power to tax involves the power
to destroy."
The power involved was one which had been exercised by the
States since the foundation of the government, and had been, after
the lapse of three-quarters of a century, annihilated from excessive
taxation by the general government, just as the judicial office in
the present case might be, if subject at all to taxation by that gov-
ernment. But, notwithstanding the sanction of this taxation by
a majority of the court, it is conceded, in the opinion, that "the
reserved rights of the States, such as the right to pass laws; to
give effect to laws through executive action; to administer justice
through the courts, and to employ all necessary agencies for legiti-
mate purposes of State government, are not proper subjects of the
taxing power of Congress." This concession covers the case be-
fore us, and adds the authority of this court in support of the doc-
trine which we have endeavored to maintain.
Judgment affirmed.
MR. JUSTICE BRADLEY, dissenting.
I dissent from the opinion of the court in this case, because it
seems to me that the general government has the same power of
taxing the income of officers of the State governments as it has
of taxing that of its own officers. It is the common government of
all alike; and every citizen is presumed to trust his own govern-
ment in the matter of taxation. No man ceases to be a citizen of
the United States by being an officer under the State government.
I cannot accede to the doctrine that the general government is to
be regarded as in any sense foreign or antagonistic to the State
governments, their officers, or people; nor can I agree that a pre-
sumption can be admitted that the general government will act
in a manner hostile to the existence or functions of the State gov-
ernments, which are constituent parts of the system or body politic
forming the basis on which the general government is founded.
The taxation by the State governments of the instruments em-
ployed by the general government in the exercise of its powers, is
a very different thing. Such taxation involves an interference
with the powers of a government in which other States and their
citizens are equally interested with the State which imposes the
taxation. In my judgment, the limitation of the power of taxation
in the general government, which the present decision establishes,
will be found very difficult to control. Where are we to stop in
.'
STATE TONNAGE TAX CASES 69
enumerating the functions of the State governments which will be
interfered with by Federal taxation? If a State incorporate a
railroad to carry out its purposes of internal improvement, or a
bank to aid its financial arrangements, reserving, perhaps, a per-
centage on the stock or profits, for the supply of its own treasury,
will the bonds or stock of such an institution be free from Federal
taxation? How can we now tell what the effect of this decision
will be? I cannot but regard it as founded on a fallacy, and that
it will lead to mischievous consequences. I am as much opposed
as any one can be to any interference by the general government
with the just powers of the State governments. But no concession
of any of the just powers of the general government can easily be
recalled. I, therefore, consider it my duty to at least record my
dissent when such concession appears to be made. An extended
discussion of the subject would answer no useful purpose.
STATE TONNAGE TAX CASES.
12 Wallace, 204. Decided 1870.
ERROB to the Supreme Court of Alabama.
These were two cases, which, though coming in different forms,
involved one and the same point only; and at the bar where the
counsel directed attention to the principle involved, separated
from the accidents of the case were discussed together as pre-
senting "precisely the same question." The matter was thus:
The Constitution ordains that "no State shall without the con-
sent of Congress lay any duty of tonnage." "With this provision in
force as superior law, the State of Alabama passed, on the 22d of
February, 1866, a revenue law. By this law, the rate of taxation
for property generally was the one-half of one per cent; but "on
all steamboats, vessels, and other water crafts plying in the naviga-
ble waters of the State," the act levied a tax at "the rate of $1 per
ton of the registered tonnage thereof," which it declared should
"be assessed and collected at the port where such vessels are regis-
tered, if practicable; otherwise at any other port or landing within
the State where such vessel may be."
The tax collector was directed by the act to demand, in each year,
of the person in charge of the vessel, if the taxes had been paid.
If a receipt for the same was not produced, he was to immediately
70 CASES ON CONSTITUTIONAL LAW.
assess the same according to tonnage, and if such tax was not paid
on demand he was to seize the boat, &c., and, after notice, proceed
and sell the same for payment of the tax, &c., and pay the surplus
into the county treasury for the use of the owner. If the vessel
could not be seized, the collector was to make the amount of the
tax out of the real and personal estate of the owner, &c.
Under this act, one Lott, tax collector of the State of Alabama,
demanded of Cox, the owner of the Dorrance, a steamer of 321
tons, and valued at $5,000, and of several other steamers, certain
sums as taxes; and under an act of 1867, identical in language with
the one of 1866, just quoted, demanded from the Trade Company
of Mobile certain sums on like vessels owned by them; the tax in
all the cases being proportioned to the registered tonnage of the
vessel.
The steamboats, the subject of the tax, were owned exclusively
by citizens of the State of Alabama, and were engaged in the
navigation of the Alabama, Bigbee, and Mobile rivers, carrying
freight and passengers between Mobile and other points of said
rivers, altogether within the limits of that State. These waters
were navigable from the sea for vessels of "ten or more tons' bur-
den;" and it was not denied that there were ports of delivery on
them above the highest points to which these boats plied. The
owners of the boats were not assessed for any other tax on them
than the one here claimed. The boats were enrolled and licensed
for the coasting trade. Though running, therefore, between points
altogether within the limits of the State of Alabama, the boats
were, as it seemed, 1 of that sort on which Congress lays a tonnage
duty.
Cox, under compulsion and protest, paid the tax demanded of
him, and then brought assumpsit in one of the inferior State courts
of Alabama, to get back the money. The Trade Company refused
to pay, and filed a bill in a like court, to enjoin the collector from
proceeding to collect. The ground of resistance to the tax in each
case was this, that being laid in proportion to the tonnage of the
vessel, the tax was laid in a form and manner which the State was
prohibited by the already quoted section of the Constitution from
adopting. The right of the State to lay a tax on vessels according
to their value and as property was not denied, but on- the contrary
conceded. 2 Judgment being given in each case against the validity
1 See Act of July 18th, 1866, 28; fense to the tax was taken, in the
14 Stat. at Large, 185. fact that by the act of Congress
2 It is barely necessary to note admitting Alabama into the Un-
that an additional ground of de- ion, it is declared, "that all navi-
STATE TONNAGE TAX CASES. 71
of the tax, the matter was taken to the Supreme Court of Ala-
bama, which decided that it was lawful. To review that judgment
the case was now here. . . .
MR. JUSTICE CLIFFORD delivered the judgment of the court,
giving an opinion in each of the cases.
I. IN THE FIRST CASE. . . . Congress has prescribed the
rules of admeasurement and computation for estimating the ton-
nage of American ships and vessels. 3
Viewed in the light of those enactments, the word tonnage, as
applied to American ships and vessels, must be held to mean their
entire internal cubical capacity, or contents of the ship or vessel
expressed in tons of one hundred cubical feet each, as estimated
and ascertained by those rules of admeasurement and of com-
putation. 4
Power to tax, with certain exceptions, resides with the States,
independent of the Federal government, and the power, when con-
fined within its true limits, may be exercised without restraint
from any Federal authority. They cannot, however, without the
consent of Congress, lay any duty of tonnage, nor can they levy
any imposts or duties on imports or exports, except what may be
absolutely necessary for executing their inspection laws, as with-
out the consent of Congress they are unconditionally prohibited
from exercising any such power. Outside of those prohibitions
the power of the States to tax extends to all objects within the
sovereign power of the States, except the means and instruments
of the Federal government. But ships and vessels owned by indi-
viduals and belonging to the commercial marine are regarded as
the private property of their owners, and not as the instruments
or means of the Federal government, and as such, when viewed as
property, they are plainly within the taxing power of the States,
as they are not withdrawn from the operation of that power by any
express or implied prohibition contained in the Federal Consti-
tution. 5 . . .
gable waters within the said state s 13 stat. at Large, 492, 70; Ib.,
shall forever remain public high- 444.
ways, free to the citizens of said 4 Nathan v. Louisiana, 8 How-
state, and of the United States, ard, 82; Howell v. Maryland, 3
without any tax, duty, impost, or Gill, 14.
toll therefor, imposed by the said 5 Alexander v. Railroad, 3 Strob-
state." This ground not being hart, 598.
passed upon by this court, need
not be adverted to further.
72 CASES ON CONSTITUTIONAL LAW.
Taxes levied by a State upon ships and vessels owned by the citi-
zens of the State as property, based on a valuation of the same as
property, are not within the prohibition of the Constitution, but it
is equally clear and undeniable that taxes levied by a State upon
ships and vessels as instruments of commerce and navigation are
within that clause of the instrument which prohibits the States
from levying any duty of tonnage, without the consent of Congress;
and it makes no difference whether the ships or vessels taxed
belong to the citizens of the State which levies the tax or the citi-
zens of another State, as the prohibition is general, withdrawing
altogether from the States the power to lay any duty of tonnage
under any circumstances, without the consent of Congress. 6
Annual taxes upon property in ships and vessels are continually
laid, and their validity was never doubted or called in question,
but if the States, without the consent of Congress, tax ships or
vessels as instruments of commerce, by a tonnage duty, or indi-
rectly by imposing the tax upon the master or crew, they assume
a jurisdiction which they do not possess, as every such act falls
directly within the prohibition of the Constitution. 7 . . .
Tonnage duties are as much taxes as duties on imports or exports,
and the prohibition of the Constitution extends as fully to such
duties if levied by the States as to duties on imports or exports,
and for reasons quite as strong as those which induced the f ramers
of the Constitution to withdraw imports and exports from State
taxation. Measures, however, scarcely distinguishable from each
other may flow from distinct grants of power, as, for example,
Congress does not possess the power to regulate the purely internal
commerce of the States, but Congress may enroll and license ships
and vessels to sail from one port to another in the same State; and
it is clear that such ships and vessels are deemed ships and vessels
of the United States, and that as such they are entitled to the
privileges of ships and vessels employed in the coasting trade. 8
Steamboats, as well as sailing ships and vessels, are required to
be enrolled and licensed for the coasting trade, and the record
shows that all the steamboats taxed in this case had conformed to
all the regulations of Congress in that regard, that they were duly
enrolled and licensed for the coasting trade and were engaged in
Gibbons v. Ogden, 9 Wheaton, 7 Passenger Cases, 7 Howard,
202; Sennot v. Davenport, 22 How- 447, 481.
ard, 238; Foster v. Davenport, Ib., I Stat. at Large, 287; Id., 305;
245; Perry v. Torrence, 8 Ohio, 3 Kent (llth ed.), 203.
524.
STATE TONNAGE TAX CASES. 73
the transportation of passengers and freight within the limits of
the State, upon waters navigable from the sea by vessels of ten or
more tons burden.
Tonnage duties, to a greater or less extent, have been imposed
by Congress ever since the Federal government was organized
under the Constitution to the present time. They have usually
been exacted when the ship or vessel entered the port, and have
been collected in a manner not substantially different from that
prescribed, in the act of the State legislature under consideration.
Undisputed authority exists in Congress to impose such duties,
and it is not pretended that any consent has ever been given by
Congress to the State to exercise any such power.
If the tax levied is a duty of tonnage, it is conceded that it is
illegal, and it is difficult to see how the concession could be avoided,
as the prohibition is express, but the attempt is made to show that
the legislature, in enacting the law imposing the tax, merely re-
ferred to the registered tonnage of the steamboats "as a way or
mode to determine and ascertain the tax. to be assessed on the
steamboats, and to furnish a rule or rate to govern the assessors
in the performance of their duties."
Suppose that could be admitted, it would not have much tend-
ency to strengthen the argument for the defendant, as the sug-
gestion concedes what is obvious from the schedule, that the taxes
are levied without any regard to the value of the steamboats. But
the proposition involved in the suggestion cannot be admitted, as,
by the very terms of the act, the tax is levied on the steamboats
wholly irrespective of the value of the vessels as property, and
solely and exclusively on the basis of their cubical contents as
ascertained by the rules of admeasurement and computation pre-
scribed by the act of Congress.
By the terms of the law the taxation prescribed is "at the rate of
one dollar per ton of the registered tonnage thereof," and the nine-
tieth section of the act provides that the tax collector must, each
year, demand of the person in charge of the steamboat whether the
taxes have been paid, and if the person in charge fails to produce
a receipt therefor by a tax collector, authorized to collect such
taxes, the collector having the list must at once proceed to assess
the same, and if the tax is not paid on demand he must seize such
steamboat, &c., and after twenty days' notice, as therein prescribed,
shall sell the same, or so much thereof as will pay the taxes and
expenses for keeping and costs. 9
Sess. Acts, 1866, pp. 7, 31.
74 CASES ON CONSTITUTIONAL LAW.
Legislative enactments, where the language is unambiguous,
cannot be changed by construction, nor can the language be
divested of its plain and obvious meaning. Taxes levied under
an enactment which directs that a tax shall be imposed on steam-
boats at the rate of one dollar per ton of the registered tonnage
thereof, and that the same shall be assessed and collected at the
port where such steamboats are registered, cannot, in the judg-
ment of this court, be held to be a tax on the steamboat as prop-
erty. On the contrary, the tax is just what the language imports,
a duty of tonnage, which is made even plainer when it comes to be
considered that the steamboats are not to be taxed at all unless
they are "plying in the navigable waters of the State," showing to
a demonstration that it is as instruments of commerce and not as
property that they are required to contribute to the revenues of
the State.
Such provision is much more clearly within the' prohibition in
question than the one involved in a recent case decided by this
court, in which it was held that a statute of a State enacting that
the wardens of a port were entitled to demand and receive, in
addition to other fees, the sum of five dollars for every vessel arriv-
ing at the port, whether called on to perform any service or not,
was both a regulation of commerce and a. duty of tonnage, and
that as such it was unconstitutional and void. 10
Speaking of the same prohibition, the Chief Justice said in that
case that those words in their most obvious and general sense de-
scribe a duty proportioned to the tonnage of the vessel a certain
rate on each ton which is exactly what is directed by the provision
in the tax act before the court, but he added that it seems plain,
if the Constitution be_ taken in that restricted sense, it would not
fully accomplish the intent of the framers, as the prohibition upon
the States against levying duties on imports or exports would be
ineffectual if it did not also extend to duties on the ships which
serve as the vehicles of conveyance, which was doubtless intended
by the prohibition of any duty of tonnage. "It was not only a pro
rata tax which was prohibited, but any duty on the ship, whether
a fixed sum upon its whole tonnage, or a sum to be ascertained by
comparing the amount of tonnage with the rate of duty."
Assume the rule to be as there laid down, and all must agree
that "the levy of the tax in question is expressly prohibited, as the
schedule shows that it is exactly proportioned ' to the registered
tonnage of the steamboats plying in the navigable waters of the
State." . . .
10 Steamship Co. v. Port Wardens, 6 Wallace, 34.
STATE TONNAGE TAX CASES. 75
Taxes in aid of the inspection laws of a State, under special cir-
cumstances, have been upheld as necessary to promote the inter-
ests of commerce and the security of navigation. 11
Laws of that character are upheld as contemplating benefits and
advantages to commerce and navigation, and as altogether distinct
from imposts and duties on imports and exports and duties of ton-
nage. Usage, it is said, has sanctioned such laws where Congress
has not legislated, but it is clear that such laws bear no relation to
the act in question, as the act under consideration is emphatically
an act to raise revenue to replenish the treasury of the State and
for no other purpose, and does not contemplate any beneficial
service for the steamboats or other vessels subjected to taxation.
Beyond question the act is an act to raise revenue without any
corresponding or equivalent benefit or advantage to the vessels
taxed or to the ship-owners, and consequently it cannot be upheld
by virtue of the rules applied in the construction of laws regulating
pilot dues and port charges. 12
Attempt was made in the case of Alexander v. Eailroad to show
that the form of levying the tax was simply a mode of assessing the
vessels as property, but the argument did not prevail, nor can it
in this case, as the amount of the tax is measured by the tonnage
of the steamboats and not by their value as property.
Reference is made to the case of the Towboat Company v.
Bordelon, 13 as asserting the opposite rule, but the court is of a
different opinion, as the tax in that case was levied, not upon the
boat, but upon the capital of the company owning the boat, and
the court in delivering their opinion say the capital of the com-
pany is property, and the Constitution of the State requires an
equal and uniform tax to be imposed upon it with the other prop-
erty of the State for the support of government.
For these reasons the court is of opinion that the State law
levying the taxes in this case is unconstitutional and void, that the
judgment of the State Court is erroneous and that it must be
reversed, and having come to that conclusion, the court does not
find it necessary to determine the other question.
Judgment reversed with costs, and the cause remanded for fur-
ther proceedings in conformity to the opinion of the court.
II. IN THE SECOND CASE. . . . Power to tax for the sup-
port of the State governments exists in the States independently
"Cooley v. Port Wardens, 12 S. C., 286; Benedict v. Vanderbilt,
Howard, 314. 1 Robt. N. Y., 200.
12 State v. Charleston, 4 Rich., is 7 Louisiana An., 195.
T6 CASES ON CONSTITUTIONAL LAW.
of the Federal government, and it may well be admitted that
where there is no cession of jurisdiction for the purposes speci-
fied in the Constitution, and no restraining compact between the
States and the Federal government, the power in the States to
tax reaches all the property within the State which is not properly
denominated the instruments or means of the Federal govern-
ment. 14
Concede all that and still the court is of opinion that the tax
in this case is a duty of tonnage, and that the law imposing it
is plainly unconstitutional and void. Taxes, as the law provides,
must be assessed by the assessor in each county on and from the
following subjects and at the following rates, to wit: "On all steam-
boats, &c., plying in the navigable waters of the State, at the rate
of one dollar per ton of the registered tonnage thereof," which
must be assessed and collected at the port where such steamboats
are registered, &c. 15 ^Copied as the provision is from the enactment
of the previous year, it is obvious that it must receive the same
construction, and as the tax is one dollar per ton, it is too plain
for argument that the amount of the tax depends upon the carry-
ing capacity of the steamboat and not upon her value as property,
as the experience of every one shows that a small steamer, new
and well built, may be of much greater value than a large one,
badly built or in need of extensive repairs. Separate lists are made
for the county and school taxes, but the two combined amount
exactly to one dollar per ton, as in the levy for the State tax,
and the court is of the opinion that the case falls within the same
rule as the case just decided.
Evidently the word tonnage in commercial designation means
the number of tons burden the ship or vessel will carry, as
estimated and ascertained by the official admeasurement and com-
putation prescribed by the public authority. ^Regulations upon
the subject are enacted by Parliament in the parent country and
by Congress in this country, as appears by several acts of Con-
gress. 16 Tonnage, says a writer of experience, has long been an
official term intended originally to express the burden that a ship
would carry, in order that the various dues and customs which
are levied upon shipping might be levied according to the size
of the vessel, or rather in proportion to her capability of carry-
i* Nathan v. Louisiana, 8 How- 448; Weston,v. Charleston, 2 Pet-
ard, 82; McCulloch v. Maryland, ers, 467.
4 Wheaton, 429; Society for Sav- " Revised Code, 169.
ings v. Coite, 6 Wallace, 604; i 1 Stat. at Large, 305; 13 Id.,
Brown v. Maryland, 12 Wheaton, 444.
STATE TONNAGE TAX CASES. 77
ing burden. Hence the term, as applied to a ship, has become
almost synonymous with that of size. 17 Apply that interpreta-
tion to the word tonnage as used in the tax act under considera-
tion, a^fl it is as clear as anything can be in legislation that the
tax imposed by that provision is a tonnage tax, or duty of ton-
nage, as the phrase is in the Constitution.
State authority to tax ships and vessels, it is supposed by the
respondent, extends to all cases where the ship or vessel is not
employed in foreign commerce or in commerce between ports or
places in different States. He concedes that the States cannot
levy a duty of tonnage on ships or vessels if the ship or vessel
is employed in foreign commerce or in commerce "among the
States," but he denies that the prohibition extends to ships or
vessels employed in commerce between ports and places in the
same State, and that is the leading error in the opinion of the
Supreme Court of the State. Founded upon that mistake the
proposition is that all taxes are taxes on property, although levied
on ships and vessels duly enrolled and licensed, if the ship or
vessel is not employed in foreign commerce or in commerce among
the States.
Ships or vessels of ten or more tons burden, duly enrolled and
licensed, if engaged in commerce on waters which are navigable
by such vessels from the sea, are ships and vessels of the United
States entitled to the privileges secured to such vessels by the
act for enrolling or licensing ships or vessels to be employed in
the coasting trade. 18
Such a rule as that assumed by the respondent would incor-
porate into the Constitution an exception which it does not con-
tain. Had the prohibition in terms applied only to ships and ves-
sels employed in foreign commerce or in commerce among the
States, his construction would be right, but courts of justice
cannot add any new provision to the fundamental law, and, if not,
it seems clear to a demonstration that the construction assumed
by the respondent is erroneous.
Decree reversed, and the cause remanded for further proceed-
ings in conformity to the opinion of this court.
IT Roman's Com. and Nav. Ton- is 1 stat. at Large, 205; Ib., 287.
mage.
78 CASES ON CONSTITUTIONAL LAW.
LOAN ASSOCIATION v. TOPEKA.
20 Wallace, 655. Decided 1874.
EKROB to the Circuit Court for the District of Kansas.
The Citizens' Savings and Loan Association of Cleveland
brought their action in the court below, against the city of Topeka,
on coupons for interest attached to bonds of the city of Topeka.
The bonds on their face purported to be payable to the King
Wrought-Iron Bridge Manufacturing and Iron- Works Company,
of Topeka, to aid and encourage that company in establishing and
operating bridge shops in said city of Topeka, under and in pursu-
ance of section twenty-six of an act of the legislature of the State
of Kansas, entitled "An act to incorporate cities of the second
class," approved February 29, 1872; and also of another "Act to
authorize cities and counties to issue bonds for the purpose of
building bridges, aiding railroads, water-power, or other works of
internal improvement," approved March 2, 1872.
The city issued one hundred of these bonds for $1,000 each, as
a donation (and so it was stated in the declaration), to encourage
that company in its design of establishing a manufactory of iron
bridges in that city.
The declaration also alleged that the interest coupons first due
were paid out of a fund raised by taxation for that purpose, and
that after this payment the plaintiff became the purchaser of the
bonds and the coupons on which suit was brought for value.
A demurrer was interposed by the city of Topeka to this declara-
tion.
The section of the act of February 29, on which the main reli-
ance was placed for the authority to issue these bonds, reads as
follows:
"SECTION 76. The council shall have power to encourage the
establishment of manufactories and such other enterprises as may
tend to develop and improve such city, either by direct appro-
priation from the general fund or by the issuance of bonds of
such city in such amounts as the council may determine; Provided,
That no greater amount than one thousand dollars shall be granted
for any one purpose, unless a majority of the votes cast at an elec-
tion called for that purpose shall authorize the same. The bonds
thus issued shall be made payable at any time within twenty
years, and bear interest not exceeding ten per cent, per annum."
LOAN ASSOCIATION v. TOPEKA. 79
It was conceded that the steps required by this act prerequisite
as to issuing the bonds were regular, as were also the other details,
and that the language of the statute was sufficient to justify the
action of the city authorities, if the statute was within the consti-
tutional competency of the legislature.
The single question, therefore, for consideration raised by the
demurrer was the authority of the legislature of the State of
Kansas to enact this part of the statute.
The court below denied the authority, placing the denial on two
grounds:
1st. That this part of the statute violated the fifth section
of Article XII of the Constitution of the State of Kansas; a sec-
tion in these words:
"SECTION 5. Provision shall be made by general law for the
organization of cities, towns, and villages; and their power of tax-
ation, assessment, borrowing money, contracting debts, and loan-
ing their credit, shall be so restricted as to prevent the abuse of
such power."
[The argument here was that the section of the act of February
29, 1872, conferring the power to issue bonds, contained no re-
striction as to the amount which the city might issue to aid man-
ufacturing enterprises, and that the failure of the legislature to
limit and restrict the power so as to prevent abuse, violated the
fifth section of Article XII of the Constitution above referred to.]
2d. That the act authorized the towns and other municipalities
to which it applied, by issuing bonds or lending its credit, to
take the property of the citizen under the guise of taxation to
pay these bonds, and use it in aid of the enterprises of others
which were not of a public character; that this was a perversion
of the right of taxation, which could only be exercised for a
public use, to the aid of individual interests and personal pur-
poses of profit and gain.
The court below accordingly, sustaining the demurrer, gave
judgment in favor of the defendant, the city of Topeka, and to
its judgment this writ of error was taken. . . .
MR. JUSTICE MILLER delivered the opinion of the court.
Two grounds are taken in the opinion of the circuit judge and
in the argument of counsel for defendant, on which it is insisted
that the section of the statute of February 29, 1872, on which
the main reliance is placed to issue the bonds, is unconstitutional.
80 CASES ON CONSTITUTIONAL LAW.
The first of these is, that by section five of article twelve of the
Constitution of that State it is declared that provision shall be
made by general law for the organization of cities, towns, and
villages; and their power of taxation, assessment, borrowing
money, contracting debts, and loaning their credit, shall be so re-
stricted as to prevent the abuse of such power.
The argument is that the statute in question is void because it
authorizes cities and towns to contract debts, and does not con-
tain any restriction on the power so conferred. But whether the
statute which confers power to contract debts should always con-
tain some limitation or restriction, or whether a general restric-
tion applicable to all cases should be passed, and whether in the
absence of both the grant of power to contract is wholly void,
are questions whose solution we prefer to remit to the State
courts, as in this case we find ample reason to sustain the demur-
rer on the second ground on which it is argued by counsel and
sustained by the Circuit Court.
That proposition is that the act authorizes the towns and other
municipalities to which it applies, by issuing bonds or loaning their
credit, to take the property of the citizen under the guise of tax-
ation to pay these bonds, and use it in aid of the enterprises of
others which are not of a public character, thus perverting the
right of taxation, which can only be exercised for a public use,
to the aid of individual interests and personal purposes of profit
and gain.
The proposition as thus broadly stated is not new, nor is the
question which it raises difficult of solution.
If these municipal corporations, which are in fact subdivisions
of the State, and which for many reasons are vested with quasi-
legislative powers, have a fund or other property out of which
they can pay the debts which they contract, without resort to
taxation, it may be within the power of the legislature of the
State to authorize them to use it in aid of projects strictly private
or personal, but which would in a secondary manner contribute
to the public good; or where there is property or money vested
in a corporation of the kind for a particular use, as public wor-
ship or charity, the legislature may pass laws authorizing them
to make contracts in reference to this property, and incur debts
payable from that source.
But such instances are few and exceptional, and the proposi-
tion is a very broad one, that debts contracted by municipal cor-
porations must be paid, if paid at all, out of taxes which they
may lawfully levy, and that all contracts creating debts to be paid
LOAN ASSOCIATION v. TOPEKA. 81
in future, not limited to payment from some other source, imply
an obligation to pay by taxation. It follows that in this class
of cases the right to contract must be limited by the right to tax,
and if in the given case, no tax can lawfully be levied to pay the
debt, the contract itself is void for want of authority to make it.
If this were not so, these corporations could make valid prom-
ises, which they have no means of fulfilling, and on which even
the legislature that created them can confer no such power. The
validity of a contract which can only be fulfilled by a resort to
taxation depends on the power to levy the tax for that purpose. 1
It is, therefore, to be inferred that when the legislature of the
State authorizes a county or city to contract a debt by bond, it
intends to authorize it to levy such taxes as are necessary to pay
the debt, unless there is in the act itself, or in some general statute,
a limitation upon the power of taxation which repels such an /
inference.
With these remarks and with the reference to the authorities i
which support them, we assume that unless the legislature of Kan- f
sas had the right to authorize the counties and towns in that State
to levy taxes to be used in aid of manufacturing enterprises, con-
ducted by individuals, or private corporations, for purposes of \
gain, the law is void, and the bonds issued under it are also void. )
We proceed to the inquiry whether such a power exists in the legis-
lature of the State of Kansas.
We have already said the question is not new. The subject of
the aid voted to railways by counties and towns has been brought
to the attention of the courts of almost every State in the Union.
It has been thoroughly discussed and is still the subject of dis-
cussion in those courts. It is quite true that a decided prepon-
derance of authority is to be found in favor of the proposition
that the legislatures of the States, unless restricted by some special
provisions of their constitutions, may confer upon these munici-
pal bodies the right to take stock in corporations created to build
railroads, and to lend their credit to such corporations. Also
to levy the necessary taxes on the inhabitants, and on property
within their limits subject to general taxation, to enable them to
pay the debts thus incurred. But very few of these courts have
decided this without a division among the judges of which they
i Sharpless v. Mayor of Phila- Jay, 60 Maine, 127; Lowell v.
delphia, 21 Pennsylvania State, Boston, Massachusetts (MS.);
147, 167; Hanson v. Vernon, 27 Whiting v. Fond du Lac, 25 Wis-
lowa, 28; Allen v. Inhabitants of consin, 188.
6
82 CASES ON CONSTITUTIONAL LAW.
were composed, while others have decided against the existence of
the power altogether. 2
In all these cases, however, the decision has turned upon the
question whether the taxation by which this aid was afforded to
the building of railroads was for a public purpose. Those who
came to the conclusion that it was, held the laws for that purpose
valid. Those who could not reach that conclusion held them
void. In all the controversy this has been the turning point of
the judgments of the courts. And it is safe to say that no court
has held debts created in aid of railroad companies, by counties
or towns, valid on any other ground than that the purpose for
which the taxes were levied was a public use, a purpose or object
which it was the right and the duty of State governments to
assist by money raised from the people by taxation. The argu-
ment in opposition to this power has been, that railroads built
by corporations organized mainly for purposes of gain the roads
which they built being under. their control, and not that of the
State were private and not public roads, and the tax assessed on
the people went to swell the profits of individuals and not to the
good of the State, or the benefit of the public, except in a remote
and collateral way. On the other hand, it was said that roads,
canals, bridges, navigable streams, and all other highways had in
all times been matter of public concern. That such channels of
travel and of the carrying business had always been established,
improved, regulated by the State, and that the railroad had not
lost this character because constructed by individual enterprise,
aggregated into a corporation.
We are not prepared to say that the latter view of it is not the
true one, especially as there are other characteristics of a public
nature conferred on these corporations, such as the power to obtain
right of way, their subjection to the laws which govern common
carriers, and the like, which seem to justify the proposition. Of
the disastrous consequences which have followed its recognition
by the courts and which were predicted when it was first estab-
lished there can be no doubt.
We have referred to this history of the contest over aid to rail-
roads by taxation, to show that the strongest advocates for the
validity of these laws never placed it on the ground of the un-
limited power in the State legislature to tax the people, but con-
ceded that where the purpose for which the tax was to be issued,
2 The State v. Wapello Co., 9 21 Pennsylvania State, 147; Whit-
Iowa, 308; Hanson v. Vernon, 27 ing v. Fond du Lac, 25 Wisconsin,
Id., 28; Sharpless v. Mayor, etc., 188.
LOAN ASSOCIATION v. TOPEKA. 83
could no longer be justly claimed to have this public character,
but was purely in aid of private or personal objects, the law au-
thorizing it was beyond the legislative power, and was an un-
authorized invasion of private right. 1
It must be conceded that there are such rights in every free
government beyond the control of the State. A government which
recognized no such rights, which held the lives, the liberty, and the
property of its citizens subject at all times to the absolute disposi-
tion and unlimited control of even the most democratic depository
of power, is after all but a despotism. It is true it is a despotism
of the many, of the majority, if you choose to call it so, but it is
none the less a despotism. It may well be doubted if a man is to
hold all that he is accustomed to call his own, all in which he
has placed his happiness, and the security of which is essential
to that happiness, under the unlimited dominion of others, whether
it is not wiser that this power should be exercised by one man
than by many. The theory of our governments, State and na-
tional, is opposed to the deposit of unlimited power anywhere.
The executive, the 'legislative, and the judicial branches of these
governments are all of limited and defined powers.
There are limitations on such power which grow out of the
essential nature of all free governments. Implied reservations of
individual rights, without which the social compact could not
exist, and which are respected by all governments entitled to the
name. No court, for instance, would hesitate to declare void a
statute which enacted that A and B, who were husband and wife
to each other, should be so no longer, but that A should thereafter
be the husband of C, and B the wife of D. Or which should enact
that the homestead now owned by A should no longer be his, but
should henceforth be the property of B. 4
Of all the powers conferred upon government that of taxation
is mosOiaBle~to~ abuse. Given a purpose or object for which tax-
ation may be lawfuly used, and the extent of its exercise is in its
very nature unlimited. It is true that express limitation on the
amount of tax to be levied or the things to be taxed may be im-
posed by constitution or statute, but in most instances for which
taxes are levied, as the support of government, the prosecution of
a Olcott v. Supervisors, 16 Wai- * Whiting v. Fond du Lac, 25
lace, 689; People v. Salem, 20 Wisconsin, 188; Cooley on Consti-
Michigan, 452; Jenkins v. Andov- tutional Limitations, 129, 175, 487;
er, 103 Massachusetts, 94; Dillon Dillon on Municipal Corporations,
on Municipal Corporations, 587; 587.
2 Redfield's Laws of Railways, 398,
rule 2.
84 CASES ON CONSTITUTIONAL LAW.
war, the national defense, any limitation is unsafe. The entire
resources of the people should in some instances be at the disposal
of the government.
The power to tax is therefore, the strongest, the most pervad-
ing of all the powers of government, reaching directly or indirectly
to all classes of the people. It was said by Chief Justice Marshall,
in the case of McCulloch v. The State of Maryland, 5 that the power
j to tax is the power to destroy. A striking instance of the truth
i 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
j 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 indi-
viduals and in favor of another, so as to ruin the one class and
give unlimited wealth and prosperity to the other, if there is no
i implied limitation of the uses for which the power may be exer-
cised.
To lay with one hand the power of the government on the prop-
erty of the citizen, and with the other to bestow it upon favored
individuals to aid private enterprises and build up private for-
tunes, 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 legislative forms.
/ Nor is it taxation. A "tax," 'says Webster's Dictionary, "is a
rate or sum of money assessed on the person or property of a citizen
j by government for the use of the nation or State." "Taxes are
burdens or charges imposed by the legislature upon persons or
[property to raise money for public purposes." 6
Coulter, J., in Northern Liberties v. St. John's Church, 7 says,
very forcibly: "I think the common mind has everywhere taken in
the understanding that taxes are a public imposition, levied by au-
thority of the government for the purpose of carrying on the gov-
ernment in all its machinery and operations that they are imposed
for a public purpose."
We have established, we think, beyond cavil that there can be
no lawful tax which is not laid for a public purpose. It may not
be easy to draw the line in all cases so as to decide what is a public
purpose in this sense and what is not.
B 4 Wheaton, 431. York, 11 Johnson, 77; Camden v.
e Cooley on Constitutional Limi- Allen, 2 Butcher, 398; Sharpless v.
tations, 479. Mayor of Philadelphia, supra;
7 13 Pennsylvania State, 104; see Hanson v. Vernon, 27 Iowa, 47;
also Pray v. Northern Liberties, Whiting v. Fond du Lac, 25 Wis-
31 Id., 69; Matter of Mayor of New consin, 188.
SPRINGER v. UNITED STATES. 85
It is undoubtedly the duty of the legislature which imposes'
or authorizes municipalities to impose a tax to see that it is not
to be used for purposes of private interest instead of a public use,
and the courts can only be justified in interposing when a violation
of this principle is clear and the reason for interference cogent.
And in deciding whether, in the given case, the object for which
the taxes are assessed falls upon the one side or the other of this
line, they must be governed mainly by the course and usage of
the government, the objects for which taxes have been customarily
and by long course of legislation levied, what objects or purposes
have been considered necessary to the support and for the proper
use of the government, whether State or municipal. Whatever
lawfully pertains to this, and is sanctioned by time and the acqui-
escence of the people, may well be held to belong to the public
use, and proper for the maintenance of good government, though
this may not be the only criterion of rightful taxation.
But in the case before us, in which the towns are authorized 1 ^
to contribute aid by way of taxation to any class of manufacturers, '
there is no difficulty in holding that this is not such a public pur-
pose as we have been considering. If it be said that a benefit
results to the local public of a town by establishing manufactures,
the same may be said of any other business or pursuit which em-
ploys capital or labor. The merchant, the mechanic, the inn-
keeper, the banker, the builder, the steamboat owner are equally
promoters of the public good, and equally deserving the aid of the
citizens by forced contributions. No line can be drawn in favor
of the manufacturer which would not open the coffers of the pub-
lic treasury to the importunities of two-thirds of the business
men of the city or town. ...
Judgment affirmed.
[Ms. JUSTICE CLIFFOKD delivered a dissenting opinion.]
SPRINGER v. UNITED STATES.
102 U. S., 586. Decided 1880.
[Error to the Circuit Court of the United States for the South-
ern District of Illinois. The facts are sufficiently stated in the
opinion of the court.]
MR. JUSTICE SWAYNE, after stating the facts, delivered the
opinion of the court.
86 CASES ON CONSTITUTIONAL LAW.
The central and controlling question in this case is whether the
tax which was levied on the income, gains, and profits of the plaint-
iff in error, as set forth in the record, and by pretended virtue
of the acts of Congress and parts of acts therein mentioned, is a
direct tax. . . . If it was, not having been laid according to
the requirements of the Constitution,, it must be admitted that
the laws imposing it, and the proceedings taken under them by
the assessor and collector for its imposition and collection, were
all void.
Many of the provisions of the Articles of Confederation of 1777
were embodied in the existing organic law. They provided for
a common treasury and the mode of supplying it with funds. The
latter was by requisitions upon the several States. The delays and
difficulties in procuring the compliance of the States, it is known,
was one of the causes that led to the adoption of the present Con-
stitution. This clause of the articles throws no light on the ques-
tion we are called upon to consider. Nor does the journal of the
proceedings of the constitutional convention of 1787 contain any-
thing of much value relating to the subject.
It appears that on the llth of July, in that year, there was a
debate of some warmth involving the topic of slavery. On the day
following, Gouverneur Morris, of New York, submitted a propo-
sition "that taxation shall be in proportion to representation." It
is further recorded in this day's proceedings, that Mr. Morris hav-
ing so varied his motion by inserting the word "direct," it passed
nem. con., as follows: "Provided always, that direct taxes ought
to be proportioned to representation." 2 Madison Papers, by Gil-
pin, pp. 1079-1081.
On the 24th of the same month, Mr. Morris said that "he
hoped the committee would strike out the whole clause. . . .
He had only meant it as a bridge to assist us over a gulf; having
passed the gulf, the bridge may be removed. He thought the
principle laid down with so much strictness liable to strong objec-
tions." Id. 1197. The gulf was the share of representation
claimed by the Southern States on account of their slave popula-
tion. But the bridge remained. The builder could not remove
it, much as he desired to do so. All parties seem thereafter to have
avoided the subject. With one or two immaterial exceptions, not
necessary to be noted, it does not appear that it was again ad-
verted to in any way. It was silently incorporated into the draft
of the Constitution as that instrument was finally adopted.
It does not appear that an attempt was made by any one to
define the exact meaning of the language employed.
SPRINGER v. UNITED STATES. 87
In the twenty-first number of the Federalist, Alexander Ham-
ilton, speaking of taxes generally, said: "Those of the direct
kind, which principally relate to land and buildings, may admit of
a rule of apportionment. Either the value of the land, or the
number of the people, may serve as a standard." The thirty-sixth
number of that work, by the same author, is devoted to the subject
of internal taxes. It is there said, "They may be subdivided into
those of the direct and those of the indirect kind." In this con-
nection land-taxes and poll-taxes are discussed. The former are
commended and the latter are condemned. Nothing is said of any
other direct tax. In neither case is there a definition given or at-
tempted of the phrase, "direct tax."
The very elaborate researches of the plaintiff in error have fur-
nished us with nothing from the debates of the State conventions,
by whom the Constitution was adopted, which gives us any aid.
Hence we may safely assume that no such material exists in that
direction, though it is known that Virginia proposed to Congress
an amendment relating to the subject, and that Massachusetts,
South Carolina, New York, and North Carolina expressed strong
disapprobation of the power given to impose such burdens. 1
Tucker's Blackstone, pt. 1, app., 235.
Perhaps the two most authoritative persons in the convention
touching the Constitution were Hamilton and Madison. The lat-
ter, in a letter of May 11, 1794, speaking of the tax which was
adjudicated upon in Hylton v. United States (3 Dall., 171), said,
"The tax on carriages succeeded in spite of the Constitution by a
majority of twenty, the advocates of the principle being reinforced
by the adversaries of luxury." 2 Mad. Writings (pub. by Con-
gress), p. 14. In another letter, of the 7th of February, 1796, re-
ferring to the case of Hylton v. United States, then pending, he
remarked: "There never was a question on which my mind was
better satisfied, and yet I have very little expectation that it will
be viewed in the same light by the court that it is by me." Id.,
77. Whence the despondency thus expressed is unexplained.
Hamilton left behind him a series o'f legal briefs, and among
them one entitled "Carriage tax." See vol. vii., p. 848, of his
works. This paper was evidently prepared with a view to the
Hylton case, in which he appeared as one of the counsel for the
United States. In it he says: "What is the distinction between
direct and indirect taxes? It is a matter of regret that terms so
uncertain and vague in so important a point are to be found in
the Constitution. We shall seek in vain for any antecedent set-
tled legal meaning to the respective terms. There is none. We
88 CASES ON CONSTITUTIONAL LAW.
shall be as much at a loss to find any disposition of either which
can satisfactorily determine the point." There being many car-
riages in some of the States, and very few in others, he points out
the preposterous consequences if such a tax be laid and collected
on the principle of apportionment instead of the rule of uniformity.
He insists that if the tax there in question was a direct tax, so
would be a tax on ships, according to their tonnage. He suggests
that the boundary line between direct and indirect taxes be set-
tled by "a species of arbitration," and that direct taxes be held to
be only "capitation or poll taxes, arid taxes on lands and buildings,
and general assessments, whether on the whole property of indi-
viduals or on their whole real or personal estate. All else must,
of necessity, be considered as indirect taxes."
The tax here in question falls within neither of these categories.
It is not a tax on the "whole . . . personal estate" of the in-
dividual, but only on his income, gains, and profits during 'a year,
which may have been but a small part of his personal estate, and in
most cases would have been so. This classification lends no sup-
port to the argument of the plaintiff in error.
The Constitution went into operation on the 4th of March, 1789.
It is important to look into the legislation of Congress touching
the subject since that time. The following summary will suffice
for our purpose. We shall refer to the several acts of Congress to
be examined, according to their sequence in dates. In all of them
the aggregate amount required to be collected was apportioned
among the several States.
The act of July 14, 1798, c. 75, 1 Stat. 53. This act imposed
a tax upon real estate and a capitation tax upon slaves.
The act of Aug. 2, 1813, c. 37, 3 Id. 53. By this act the tax
was imposed upon real estate and slaves, according to their respect-
ive values in money.
The act of Jan. 19, 1815, c. 21, Id. 164. This act imposed the
tax upon the same descriptions of property, and in like manner as
the preceding act.
The act of Feb. 27, 1815, c. 60, Id. 216, applied to the District
of Columbia the provisions of the act of Jan. 19, 1815.
The act of March 5, 1816, c. 24, Id. 255, repealed the two pre-
ceding acts, and re-enacted their provisions to enforce the collec-
tion of the smaller amount of tax thereby prescribed.
The act of Aug. 5, 1861, c. 45, 12 Id. 294, required the tax to be
levied wholly on real estate.
The act of June 7, 1862, c. 98, Id. 422, and the act of Feb. 6,
1863, c. 21, Id. 640, both relate only to the collection, in insurrec-
SPRINGER v. UNITED STATES. 89
tionary districts, of the direct tax imposed by the act of Aug.
5, 1861, and need not, therefore, be more particularly noticed.
It will thus be seen that whenever the government has imposed
a tax which it recognized as a direct tax, it has never been applied
to any objects but real estate and slaves. The latter application
may be accounted for upon two grounds: 1. In some of the States
slaves were regarded as real estate (1 Hurd, Slavery, 239; Veazie
Bank v. Fenno, 8 Wall., 533); and, 2. Such an extension of the
tax lessened the burden upon the real estate where slavery existed,
while the result to the national treasury was the same, whether the
slaves were omitted or included. The wishes of the South were,
therefore, allowed to prevail. We are not aware that the question
of the validity of such a tax was ever presented for adjudication.
Slavery having passed away, it cannot hereafter arise. It does
not appear that any tax like the one here in question was ever re-
garded or treated by Congress as a direct tax. This uniform
practical construction of the Constitution touching so important
a point, through so long a period, by the legislative and executive
departments of the government, though not conclusive, is a con-
sideration of great weight.
There are four adjudications by this court to be considered.
They have an important, if not a conclusive, application to the
case in hand. . . . [Here follows a discussion of Hylton v.
United States, 3 Dallas, 171.] In Pacific Insurance Co. v. Soule
(7 Wall., 433), the taxes in question were upon the receipts of
such companies from premiums and assessments, and upon all
sums made or added, during the year, to their surplus or contin-
gent funds. This court held unanimously that the taxes were not
direct taxes, and that they were valid. . . . [Here follows an
extract from Veazie Bank v. Fenno, 8 Wallace, 533.] In Scholey
v. Eew (23 Wall., 331), the tax involved was a succession tax, im-
posed by the acts of Congress of June 30, 1864, and July 13, 1866.
It was held that the tax was not a direct tax, and that it was
constitutional and valid. In delivering the opinion of the court,
Mr. Justice Clifford, after remarking that the tax there in ques-
was not a direct tax, said: "Instead of that, it is plainly an excise
tax or duty, authorized by sect. 1, art. 8, of the Constitution,
which vests the power in Congress to lay and collect taxes, duties,
imposts, and excises to pay the debts and provide for the common
defense and general welfare." He said further: "Taxes on houses,
lands, and other permanent real estate have always been deemed
to be direct taxes, and capitation taxes, by the express words of
the Constitution, are within the same category; but it has never
90 CASES ON CONSTITUTIONAL LAW.
been decided that any other legal exactions for the support of the
Federal government fall within the condition that unless laid in
proportion to numbers the assessment is invalid."
All these cases are undistinguishable in principle from the case
now before us, and they are decisive against the plaintiff in error.
The question, what is a direct tax, is one exclusively in Ameri-
can jurisprudence. The text-writers of the country are in entire
accord upon the subject.
Mr. Justice Story says all taxes are usually divided into two
classes, those which are direct and those which are indirect, and
that "under the former denomination are included taxes on land
or real property, and, under the latter, taxes on consumption."
1 Const., sect. 950.
Chancellor Kent, speaking of the case of Hylton v. United States,
says: "The better opinion seemed to be that the direct taxes con-
templated by the Constitution were only two, viz., a capitation
or poll tax and a tax on land." 1 Com., 257. See also Cooley,
Taxation, p. 5, note 2; Pomeroy, Const. Law, 157; Sharswood's
Blackstone, 308, note; Rawle, Const., 30; Sergeant, Const., 305.
We are not aware that any writer, since Hylton v. United States
was decided, has expressed a view of the subject different from
that of these authors.
Our conclusions are, that direct taxes, within the meaning of the
Constitution, are only capitation taxes, as expressed in that in-
strument, and taxes on real estate; and that the tax of which the
plaintiff in error complains is within the category of an excise or
duty. Pomeroy, Const. Law, 177; Pacific Insurance Co. v. Soule,
and Scholey v. Kew, supra.
Against the considerations, in one scale, in favor of these propo-
sitions, what has been placed in the other, as a counterpoise? Our
answer is, certainly nothing of such weight, in our judgment, as
to require any special reply. The numerous citations from the
writings of foreign political economists, made by the plaintiff in
error, are sufficiently answered by Hamilton in his brief, before
referred to. Judgment affirmed.
POLLOCK v. FARMERS' LOAN AND TRUST CO. 91
POLLOCK v. FARMERS' LOAN AND TRUST COMPANY.
(Rehearing.)
HYDE v. CONTINENTAL TRUST COMPANY. (Rehearing.)
158 U. S., 601. Decided 1895.
[This was a bill filed by Charles Pollock, a citizen of the State
of Massachusetts, on behalf of himself and all other stock-holders
of the defendant company similarly situated, against the Farmers'
Loan -and Trust Co., a corporation of the State of New York.
The bill alleged that the defendant claimed authority under the
provisions of the act of Congress of August 15, 1894, to pay to
the United States a tax of two per centum on the net profits of
said company, including the income derived from real estate and
bonds of the City of New York owned by it. The bill further
alleged that such a tax was unconstitutional, null, and void, in
that it was a direct tax with respect to the income from real estate,
and in that the income from stocks and bonds of the States of
the United States and counties and municipalities therein is not
subject to the taxing power of Congress. The bill prayed that the
provisions known as the income tax incorporated in the act of Con-
gress of August 15, 1894, might be adjudged unconstitutional,
null, and void, and that the defendants might be restrained from
voluntarily complying with such provisions. On April 8, 1895, the
Court, one justice being absent, decided:
"A tax on the rents or income of real estate is a direct tax,
within the meaning of that term as used in the Constitution of
the United States.
"A tax upon incomes derived from the interest of bonds issued
by a municipal corporation is a tax upon the power of the State
and its instrumentalities to borrow money, and is consequently
repugnant to the Constitution of the United States.
"Upon each of the other questions argued at bar, to wit:
1. Whether the void provision as to rent and income from real
estate invalidates the whole act? 2. Whether as to the income
from personal property as such, the act is unconstitutional, as lay-
ing direct taxes? 3. Whether any part of the tax, if not consid-
ered as a direct tax, is invalid for want of uniformity on either of
the grounds suggested? the Justices who heard the argument are
equally divided, and, therefore, no opinion is expressed." (157
U. S., 429.)
Inasmuch as the cases had not been heard by a full court, and
92 CASES ON CONSTITUTIONAL LAW.
since the question upon which the court was equally divided still
lacked authoritative determination, the appellants were granted a
rehearing. The cases were re-argued before the full bench, and on
May 20, 1895, the following opinion was rendered.]
ME. CHIEF JUSTICE FULLEB delivered the opinion of the court.
Whenever this court is required to pass upon the validity of an
act of Congress as tested by the fundamental law enacted by the
people, the duty imposed demands in its discharge the utmost de-
liberation and care and invokes the deepest sense of responsibility.
And this is especially so when the question involves the exercise
of a great governmental power and brings into consideration, as
vitally affected by the decision, that complex system of govern-
ment so sagaciously framed to secure and perpetuate "an inde-
structible union composed of indestructible States."
We have, therefore, in anxious desire to omit nothing which
might in any degree tend to elucidate the questions submitted,
and aided by further able arguments embodying the fruits of
elaborate research, carefully re-examined these cases, with the re-
sult that, while our former conclusions remain unchanged, their
scope must be enlarged by the acceptance of their logical conse-
quences. The very nature of the constitution, as observed by Chief
Justice Marshall in one of his greatest judgments, "requires that
only its great outlines should be marked, its important objects
designated, and the minor ingredients which compose those ob-
jects be deducted from the nature of the objects themselves." "In
considering this question, then, we must never forget that it is a
Constitution that we are expounding." McCulloch v. Maryland,
4 Wheat., 316, 407.
As heretofore stated, the Constitution divided Federal taxation
into two great classes, the class of direct taxes and the class of
duties, imposts, and excises and prescribed two rules which qual-
ified the grant of power as to each class.
The power to lay direct taxes, apportioned among the several
States in proportion to their representation in the popular branch
of Congress, a representation based on population as ascertained
by the census, was plenary and absolute, but to lay direct taxes
without apportionment was forbidden. The power to lay duties,
imposts, and excises was subject to the qualification that the im-
position must be uniform throughout the United States.
Our previous decision was confined to the consideration of the
validity of the tax on the income from real estate and on the in-
come from municipal bonds. The question thus limited, was
POLLOCK v. FARMERS' LOAN AND TRUST CO. 93
whether such taxation was direct or not, in the meaning of the
Constitution, and the court went no further as to the tax on the
incomes from real estate than to hold that it fell within the same
class as the source whence the income was derived, that is, that a
tax upon the realty and a tax upon the receipts therefrom were
alike direct; while as to the income from municipal bonds, that
could not be taxed, because of want of power to tax the source,
and no reference was made to the nature of the tax being direct
or indirect.
We are now permitted to broaden the field of inquiry and deter-
mine to which of the two great classes a tax upon a person's entire
income, whether derived from rents or products or otherwise, of
real estate, or from bonds, stocks or other forms of personal prop-
erty, belongs; and we are unable to conclude that the enforced
subtraction from the yield of all the owner's real or personal prop-
erty, in the manner prescribed, is so different from a tax upon the
property itself that it is not a direct but an indirect tax in the
meaning of the Constitution.
The words of the Constitution are to be taken in their obvious
sense and to have a reasonable construction. In Gibbons v. Ogden,
Chief Justice Marshall, with his usual felicity, said:
"As men, whose intentions require no concealment, generally
employ the words which most directly and aptly express the ideas
they intend to convey, the enlightened patriots who framed our
Constitution and the people who adopted it must be understood to
have employed words in their natural sense and to have intended
what they have said." 9 Wheat., 1, 188. . . .
We know of no reason for holding otherwise than that the words
"direct taxes" on the one hand, and "duties, imposts, and excises"
on the other, were used in the Constitution in their natural and
obvious sense, nor, in arriving at what those terms embrace, do we
perceive any ground for enlarging them beyond, or narrowing
them within, their natural and obvious import at the time the
Constitution was framed and ratified. . . .
[Here follows a discussion of the views of Hamilton and Madison
and of the Hylton case.]
What was decided in the Hylton case was, then, that a tax on
carriages was an excise, and, therefore, an indirect tax. The con-
tention of Mr. Madison in the House was only so far disturbed by
it, that the court classified it where he himself would have held it
constitutional, and he subsequently as President approved a simi-
lar act. 3 Stat., 40. The contention of Mr. Hamilton in the Fed-
94 CASES ON CONSTITUTIONAL LAW.
eralist was not disturbed by it in the least. In our judgment, the
construction given to the Constitution by the authors of the Fed-
eralist (the five numbers contributed by Chief Justice Jay related
to the danger from foreign force and influence, and to the treaty-
making power) should not and cannot be disregarded. . . .
Whatever the speculative views of political economists or rev-
enue reformers may be, can it be properly held that the Constitu-
tion, taken in its plain and obvious sense, and with due regard to
the circumstances attending the formation of the government, au-
thorizes a general unapportioned tax on the products of the farm
and the rents of real estate, although imposed merely because of
ownership and with no possible means of escape from payment, as
belonging to a totally different class from that which includes the
property from whence the income proceeds?
There can be only one answer, unless the constitutional restric-
tion is to be treated as utterly illusory and futile, and the object of
its framers defeated. We find it impossible to hold that a funda-
mental requisition, deemed so important as to be enforced by two
provisions, one 'affirmative and one negative, can be refined away
by forced distinctions between that which gives value to property
and the property itself.
_iJer-can we conceive any ground why the same reasoning does
not apply to capital in personalty held for the purpose of income
or ordinarily yielding income, and to the income therefrom. All
the real estate of the country, and all its invested personal property,
are open to the direct operation of the taxing power if an appor-
tionment be made according to the Constitution. The Constitu-
tion does not say that no direct tax shall be laid by apportionment
on any other property than land; on the contrary, it forbids all
unapportioned direct taxes; and we know of no warrant for ex-
cepting personal property from the exercise of the power, or any
reason why an apportioned direct tax cannot be laid and assessed,
as Mr. Gallatin said in his report when Secretary of the Treasury
in 1812, "upon the same objects of taxation on which the direct
taxes levied under the authority of the State are laid and assessed."
Nor are we impressed with the argument that because in the
four instances in which the power of direct taxation has been
exercised, Congress did not see fit, for reasons of expediency, to
levy a tax upon personalty, this amounts to such a practical con-
struction of the Constitution that the power did not exist, that
we must regard ourselves bound by it. We should regret to be
compelled to hold the powers of the general government thus re-
POLLOCK V. FARMERS' LOAN AND TRUST CO. 95
etricted, and certainly cannot accede to the idea that the Consti-
tution has become weakened by a particular course of inaction
under it.
The stress of the argument is thrown, however, on the assertion
that an income tax is not a property tax at all; that it is not a
real estate tax, nor a crop tax, nor a bond tax; 'that it is an assess-
ment upon the taxpayer on account of his money-spending power
as shown by his revenue for the year preceding the assessment;
that rents received, crops harvested, interest collected, have lost all
connection with their origin, and although once not taxable have
become transmuted in their new form into taxable subject-matter;
in other words, that income is taxable irrespective of the source
whence it is derived.
This was the view entertained by Mr. Pitt as expressed in his
celebrated speech on introducing his income-tax law of 1799, and
he did not hesitate to carry it to its logical conclusion. The Eng-
lish loan acts provided that the public dividends should be paid
"free of all taxes and charges whatsoever;" but Mr. Pitt success-
fully contended that the dividends for the purposes of the income
tax were to be considered simply in relation to the recipient as so
much income, and that the holder had no reason to complain. And
(this, said Mr. Gladstone fifty-five years after, was the rational con-
struction of the pledge. Financial Statements, 32. . . .
We have unanimously held in this case that, so far as this law
operates on the receipts from municipal bonds, it cannot be sus-
tained, because it is a tax on the power of the States, and on their
instrumentalities to borrow money, and consequently repugnant
to the Constitution. But if, as contended, the interest when re-
ceived has become merely money in the recipient's pocket, and
taxable as such without reference to the source from which it
came, the question is immaterial whether it should have been
originally taxed at all or not. This was admitted by the Attorney
General with characteristic candor; and it fallows that, if the
revenue derived from municipal bonds cannot be taxed because the
source cannot be, the same rule applies to revenue from any other
source not subject to the tax; and the lack of power to levy any
but an apportioned tax on real estate and personal property equally
exists as to the revenue therefrom.
Admitting that this act taxes the income of property irre-
spective of its source, still we cannot doubt that such a tax is nec-
essarily a direct tax in the meaning of the Constitution. . . .
Being direct, and therefore to be laid by apportionment, is there
any real difficulty in doing so? Cannot Congress, if the necessity
96 CASES ON CONSTITUTIONAL LAW.
exist of. raising thirty, forty, or any other number of million dollars
for the support of the government, in addition to the revenue from
duties, imposts,, and excises, apportion the quota of each State upon
the basis of the census, and thus advise it of the payment which
must be made, and proceed to assess that amount on all the real or
personal property and the income of all persons in the State, and
collect the same if the State does not in the meantime assume and
pay its quota and collect the amount according to i-ts own system
and in its own way? Cannot Congress do this as respects either
or all these subjects of taxation, and deal with each in such man-
ner as might be deemed expedient, as indeed was done in the act
of July 14, 1798 (C., 75, 1 Stat., 597)? Inconveniences might
possibly attend the levy of an income tax, notwithstanding the
listing of receipts, when adjusted, furnishes its own valuation; but
that it is apportionable is hardly denied, although it is asserted
that it would operate so unequally as to be undesirable.
In the disposition of the inquiry whether a general unappor-
tioned tax on the income of real and personal property can be sus-
tained, under the Constitution, it is apparent that the suggestion
that 'the result of compliance with the fundamental law would
lead to the abandonment of that method of taxation altogether,
because of the inequalities alleged to necessarily accompany its
pursuit could not be allowed to influence the conclusion; but the
suggestion not unnaturally invites attention to the contention of
appeHants' counsel, that the want of uniformity and equality in
this act is such as to invalidate it. Figures drawn from the census
are given, showing that enormous assets of mutual insurance com-
panies; of building associations; of mutual savings banks; large
productive property of ecclesiastical oragnizations; are exempted,
and it is claimed that the exemptions reach so many hundred
millions that the rate of taxation would perhaps have been reduced
one-half, if they had not been made. We are not dealing with the
act from that point of view; but, assuming the data to be sub-
stantially reliable, if the sum desired to be raised had been appor-
tioned, it may be doubted whether any State, which paid its quota
and collected the amount by its own methods, would, or could
under its Constitution, have allowed a large part of the property
alluded to to escape taxation. If so, a better measure of equality
would have been attained than would be otherwise possible, since,
"according to the argument for the government, the rule of equality
is not prescribed by the Constitution as to Federal taxation, and
the observance of such a rule as inherent in all just taxation is
purely a matter of legislative discretion.
POLLOCK v. FARMERS' LOAN AND TRUST CO. 97
Elaborate argument is made as to the efficacy and merits of an
income tax in general, as on the one hand, equal and just, and on
the other, elastic and certain; not that it is not open to abuse by
such deductions and exemptions ds might make taxation under it
so wanting in uniformity and equality as in substance to amount
to deprivation of property without due process of law; not that it
is not open to fraud and evasion and is inquisitorial in its methods;
but because it is pre-eminently a tax upon the rich, and enables
the burden of taxes on consumption and of duties on imports to
be sensibly diminished. And it is said that the United States, as
"the representative of an indivisible nationality, as a political sov-
ereign equal in authority to any other on the face of the globe, to
all emergencies, foreign or domestic, and having at its command
for offense and defense and for all governmental purposes all the
resources of the nation," would be "but a maimed and crippled
creation after all," unless it possesses the power to lay a tax on the
income of real and personal property throughout the United
States without apportionment.
The power to tax real and personal property and the income
from both, there being an apportionment, is conceded; that such a
tax is a direct tax in the meaning of the Constitution has not been,
and, in our judgment, cannot be successfully denied; and yet we
are thus invited to hesitate in the enforcement of the mandate of
the Constitution which prohibits Congress from laying a direct tax
on the revenue from property of .the citizen without regard to
State lines, and in such manner that the States cannot intervene
by payment in regulation of their own resources, lest a govern-
ment of delegated powers should be found to be, not less powerful,
but less absolute, than the imagination of the advocate had sup-
posed.
We are not here concerned with the question whether an income
tax be or be not desirable, nor whether such a tax would enable
the government to diminish taxes on consumption and duties on
imports and to enter upon what may be believed to be a reform
of its fiscal and commercial system. Questions of that character
belong to the controversies of political parties, and cannot be set-
tled by judicial decision. In these cases our province is to deter-
mine whether this income tax on the revenue from property does
or does not belong to the class of direct taxes. If it does, it is,
being unapportioned, in violation of the Constitution, and we
must so declare. . . .
We have considered the act only in respect of the tax on income
7
98 CASES ON CONSTITUTIONAL LAW.
derived from real estate, and from invested personal property, and
have not commented on so much of it as bears on gains or profits
from business, privileges, or employments, in view of the instances
in which taxation on business, privileges, or employments has as-
sumed the guise of an excise tax and been sustained as such.
Being of opinion that so much of the sections of this law as lays
a tax on income from real and personal property is invalid, we are
brought to the question of the effect of that conclusion upon these
sections as a whole.
It is elementary that the same statute may be in part constitu-
tional and in part unconstitutional, and if the parts are wholly in-
dependent of each other, that which is constitutional may stand
while that which is unconstitutional will be rejected. And in the
case before us there is no question as to the validity of this act, ex-
cept sections twenty-seven to (thirty-seven, inclusive, which relate
to the subject which has been under discussion; and as to them
we think that the rule laid down by Chief Justice Shaw in Warren
v. Charlestown, 2 Gray, 84, is applicable, that if the different parts
"are so mutually connected with and dependent on each other, as
conditions, considerations, or compensations for each other, as to
warrant the belief that the legislature intended them as a whole,
and that, if all could not be carried into effect, the legislature
would not pass the residue independently, and some paTts^arejm-
eonstitutional, all the provisions which are thus dependent, condi-
tional or connected, must fall with them." Or, as the point is put
by Mr. Justice Matthews in Poindexter v. Greenhow, 114 U. S.,
270, 304: "It is undoubtedly true that there may be cases where
one part of a statute may be enforced as constitutional, and an-
other be declared inoperative and void, because unconstitutional;
but these are cases where the parts are so distinctly separable that
each can stand alone, and where the court is able to see, and to
declare, that the intention of the legislature, was that the part
pronounced valid should be enforcable, even though the other
part should fail. To hold otherwise would be to substitute, for
the law intended by the legislature, one they may never have been
willing by itself to enact." And again, as stated by the same emi-
nent judge in Spraigue v. Thompson, 118 U. S., 90, 95, where it
was urged that certain illegal exceptions in a section of a statute
might be disregarded, but that the rest could stand: "The insuper-
able difficulty with the application of that principle of construction
to the present instance is, that by rejecting the exceptions intended
by the legislature of Georgia the statute is made to enact what
POLLOCK v. FARMERS' LOAN AND TRUST CO. 99
confessedly the legislature never meant. It confers upon the stat-
ute a positive operation beyond the legislative intent, and beyond
what any one can say it would have enacted in view of the illegality
of the exceptions."
According to the census, the true valuation of real and per-
sonal property in the United States in 1890 was $65,037,091,197,
of which real estate with improvements thereon made up $39,-
544,544,333. Of course, from the latter must be deducted, in ap-
plying these sections, all unproductive property and all property
whose net yield does not exceed four thousand dollars; but, even
with such deductions, it is evident that the income from realty
formed a vital part of the scheme for taxation embodied therein.
If that be stricken out, and also the income from all invested
personal property, bonds, stocks, investments of all kinds, it is
obvious that by far the largest part of the anticipated revenue
would be eliminated, 'and this would leave the burden of the tax
to be borne by professions, trades, employ ments, or vocations; and
in that way what was intended as a tax on capital would remain
in substance a tax on occupations and labor. We cannot believe
that such was the intention of Congress. We do not mean to say
that such an act laying by apportionment a direct tax on all real
estate and personal property, or the income thereof, might not
also lay excise taxes on business, privileges, employments, and
vocations. But this is not such an act; and the scheme must be
considered as a whole. Being invalid as to the greater part, and
falling, as the tax would, if any part were held valid, in a direction
which could not have been contemplated except in connection
with the taxation considered as an entirety, we are constrained to
conclude that sections twenty-seven to thirty-seven, inclusive, of
the act which became a law without the signature of the President
on August 28, 1894, are wholly inoperative and void.
Our conclusions may, therefore, be summed up as follows:
First. We adhere to the opinion already announced, that, taxes
on real estate being indisputably direct taxes, taxes on the rents
or incomes of real estate are equally direct taxes.
Second. We are of opinion that taxes on personal property, or
on the income of personal property, are likewise direct taxes.
Third. The tax imposed by sections twenty-seven to thirty-
seven, inclusive, of the act of 1894, so far as it falls on the income
of real estate and of personal property, being a direct tax within
the meaning of the Constitution, and, therefore, unconstitutional
and void because not apportioned according to representation, all
100 CASES ON CONSTITUTIONAL LAW.
those sections, constituting one entire scheme of taxation, are nec-
essarily invalid.
The decrees hereinbefore entered in this court will be vacated;
the decrees below will be reversed, and the cases remanded, with
instructions to grant the relief prayed.
[Dissenting opinions were delivered by JUSTICES HABLAN,
BEOWN, JACKSON, and WHITE.]
III. MONEY.
CRAIG ET AL. v. THE STATE OF MISSOURI.
4 Peters, 410. Decided 1830.
The case is stated in the opinion of the court. . . .
MARSHALL, C. J., delivered the opinion of the court, Justices
Thompson, Johnson, and McLean dissenting.
This is a writ of error to a judgment rendered in the court of
last resort, in the State of Missouri, affirming a judgment ob-
tained by the State in one of its inferior courts, against Hiram
Craig and others, on a promissory note. . . .
The declaration is on a promissory note, dated on the first day
of August, 1822, promising to pay to the State of Missouri, on the
1st day of November, 1822, at the loan office in Chariton, the sum
of $199.99, and the two per cent, per annum, the interest ac-
cruing on the certificates borrowed from the 1st of October, 1821.
This note is obviously given for certificates loaned under the act,
"for the establishment of loan offices." That act directs that loans
on personal security shall be made of sums less than $200. This
note is for $199.99. The act directs that the certificates issued by
the State shall carry two per cent, interest from the date, which
interest shall be calculated in the amount of the loan. The note
promises to repay the sum with the two per cent, interest accruing
on the certificates borrowed from the 1st day of October, 1821.
It cannot be doubted that the declaration is on a note given in
pursuance of the act which has been mentioned.
Neither can it be doubted that the plea of non-assumpsit al-
lowed the defendants to draw into question at the trial the validity
of the consideration on which the note was given. Everything
which disaffirms the contract, everything which shows it to be
void, may be given in evidence on the general issue in an action of
assumpsit. The defendants, therefore, were at liberty to question
the validity of the consideration which was the foundation of the
contract, and the constitutionality of the law in which it orig-
inated. . . .
101
102 CASES ON CONSTITUTIONAL LAW.
This brings us to the great question in the cause: Is the act of
the legislature of Missouri repugnant to the constitution of the
United States?
The counsel for the plaintiffs in error maintain that it is re-
pugnant to the constitution, because its object is the emission of
bills of credit, contrary to the express prohibition contained in
the tenth section of the first article.
The act under the authority of which the certificates loaned to
the plaintiffs in error were issued, was passed on the 26th of
June, 1821, and is entitled "an act for the establishment of loan-
offices/' The provisions that are material to the present inquiry
are comprehended in the third, thirteenth, fifteenth, sixteenth,
twenty-third, and twenty-fourth sections of the act, which are in
these words:
Section the third enacts, "that the auditor of public accounts
and treasurer, under the direction of the governor, shall, and they
are hereby required to issue certificates, signed by the said auditor
and treasurer, to the amount of $200,000, of denominations not
exceeding ten dollars, nor less than fifty cents, (to bear such devices
as they may deem the most safe,) in the following form, to wit:
'This certificate shall be receivable at the treasury, or any of the
loan-offices of the State of Missouri, in the discharge of taxes or
debts due to the State, for the sum of $ , with interest for
the same, at the rate of two per centum per annum from this date,
the day of , 182.' "
The thirteenth section declares, "that the certificates of the
said loan-offices shall be receivable at the treasury of the State,
and by all tax-gatherers and other public officers, in payment of
taxes or other moneys now due to the State, or to any county or
town therein, and the said certificates shall also be received by all
officers, civil and military, in the State, in the discharge of sala-
ries and fees of office."
The fifteenth section provides, "that the commissioners of the
said loan-offices shall have power to make loans of the said cer-
tificates, to citizens of this State,. residing within their respective
districts only, and in each district a proportion shall be loaned to
the citizens of each county therein, according to the number
thereof," &c.
Section sixteenth. "That the said commissioners of each of
the said offices are further authorized to make loans on personal
securities, by them deemed good and sufficient, for sums less than
two hundred dollars; which securities shall be jointly and sever-
CRAIG ET AL. v. STATE OF MISSOURI. 103
ally bound for the payment of the amount so loaned, with interest
thereon," &c.
Section twenty-third. "That the general assembly shall, as
soon as may be, cause the salt springs and lands attached thereto,
given by congress to this State, to be leased out; and it shall
always be the fundamental condition in such leases, that the lessee
or lessees shall receive the certificates hereby required to be issued,
in payment for salt, at a price not exceeding that which may be
prescribed by law; and all the proceeds of the said salt springs, the
interest accruing to the State, and all estates purchased by officers
of the said several offices, under the provisions of this act, and all
the debts now due or hereafter to be due to this State, are hereby
pledged and constituted a fund for the redemption of the certifi-
cates hereby required to be issued, and the faith of the State is
hereby also pledged for the same purpose."
Section twenty-fourth. "That it shall be the duty of the said
auditor and treasurer to withdraw annually from circulation, one-
tenth part of the certificates which are hereby required to be
issued," &c.
The clause in the constitution which this act is supposed to
violate is in these words: "No State shall . . . emit bills of
credit."
What is a bill of credit? What did the constitution mean to
forbid?
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 prevented, which we know from the history
of our country, equally limits the interpretation of the terms.
The word "emit" is never employed in describing those contracts
by which a State binds itself to pay money at a future day for
services actually received, or for money borrowed for present use;
nor are instruments executed for such purposes, in common lan-
guage, denominated "bills of credit." To "emit bills of credit,"
conveys to the mind the Jdea of issuing paper intended to circulate
through the community 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.
At a very early period of our colonial history, the attempt to
supply the want of the precious metals by a paper medium was
made to a considerable extent; and the bills emitted for this pur-
pose have been frequently denominated bills of credit. During
104 CASES ON CONSTITUTIONAL LAW.
the war of our Kevolution, we were driven to this expedient; and
necessity compelled us to use it to a most fearful extent. The
term has acquired an appropriate meaning; and "bills of credit"
signify a paper medium, intended to circulate between individuals,
and between government and individuals, for the ordinary pur-
poses of society. Such a medium has been always liable to con-
siderable fluctuation. Its value is continually changing; and these
changes, often great and sudden, expose individuals to immense
loss, are the sources of ruinous speculations, and destroy all confi-
dence between man and man. To cut up this mischief by the
roots, a mischief which was felt through the United States, and
which deeply affected the interest and prosperity of all, the people
declared in their constitution, that no State should emit bills of
credit. If the prohibition means anything, if the words are not
empty sounds, it must comprehend the emission of any paper
medium, by a State government, for the purpose of common cir-
culation.
What is the character of the certificates issued by authority of
the act under consideration? What office are they to perform?
Certificates signed by the auditor and treasurer of the State, are
to be issued by those officers to the amount of two hundred thou-
sand dollars, of denominations not exceeding ten dollars, nor less
than fifty cents. The paper purports on its face to be receivable
at the treasury, or at any loan office of the State of Missouri, in
discharge of taxes or debts due to the State.
The law makes them receivable in discharge of all taxes, or
debts due to the State, or any county or town therein; and of all
salaries and fees of office, to all officers civil and military within
the State; and for salt sold by the lessees of the public salt works.
It also pledges the faith and funds of the State for their re-
demption.
It seems impossible to doubt the intention of the legislature in
passing this act, or to mistake the character of these certificates,
or the office they were to perform. The denominations of the bills,
from ten dollars to fifty cents, fitted them for the purpose of or-
dinary circulation; and their reception in payment of taxes, and
debts to the government and to corporations, and of salaries and
fees, would give them currency. They were to be put into circu-
lation; that is, emitted by the government. In addition to all
these evidences of an intention to make these certificates the or-
dinary circulating medium of the country, the law speaks of them
in this character; and directs the auditor and treasurer to with-
draw annually one-tenth of them from circulation. Had they
CRAIG ET AL. V. STATE OF M1SSOUKI. 105
been termed "bills of credit," instead of "certificates," nothing
would have been wanting to bring them within the prohibitory
words of the constitution.
And can this make any real difference? Is the proposition to
be maintained, that the constitution meant to prohibit names and
not things? That a very important act, big with great and ruin-
ous mischief, which is expressly forbidden by words most appropri-
ate for its description, may be performed by the substitution of a
name? That the constitution, in one of its most important pro-
visions, may be openly evaded by giving a new name to an old
thing? We cannot think so. We think the certificates emitted
under the authority of this act are as entirely bills of credit as if
they had been so denominated in the act itself.
But it is contended, that though these certificates should be
deemed bills of credit, according to the common acceptation of
the term, they are not so in the sense of the constitution; because
they are not made a legal tender.
The constitution itself furnishes no countenance to this distinc-
tion. The prohibition is general. It extends to all bills of credit,
not to bills of a particular description. That tribunal must be
bold, indeed, which, without the aid of other explanatory words, "
could venture on this construction. It is the less admissible in
this case, because the same clause of the constitution contains a
substantive prohibition to the enactment of tender laws. The
constitution, therefore, considers the emission of bills of credit,
and the enactment of tender laws, as distinct operations, inde-
pendent of each other, which may be separately performed. Both
are forbidden. To sustain the one, because it is not also the other;
to gay that bills of credit may be emitted, if -they be not made a
tender in payment of debts, is, in effect, to expunge that distinct
independent prohibition, and to read the clause as if it had been
entirely omitted. We are not at liberty to do this.
The history of paper money has been referred to, for the pur-
pose of showing that its great mischief consists in being made a
tender; and that therefore the general words of the constitution
may be restrained to a particular intent.
Was it even true, that the evils of paper money resulted solely
from the quality of its being made a tender, this court would
not feel itself authorized to disregard the plain meaning of words,
in search of a conjectural intent to which we are not conducted
by the language of any part of the instrument. But we do not
think that the history of our country proves either, that being
made a tender in payment of debts is an essential quality of bills
106 CASES ON CONSTITUTIONAL LAW.
of credit, or the only mischief resulting from them. It may,
indeed, be the most pernicious; but that will not authorize a
court to convert a general into a particular prohibition.
We learn from Hutchinson's History of Massachusetts, vol. i.,
p. 402, that bilk of credit were emitted for the first time in that
colony in 1690. An army returning unexpectedly from an expedi-
tion against Canada, which had proved as disastrous as the plan
was magnificent, found the government totally unprepared to
meet their claims. Bills of credit were resorted to, for relief from
this embarrassment. They do not appear to have been made a
tender; but they were not on that account the less bills of credit,
nor were they absolutely harmless. The emission, however, not
being considerable, and the bills being soon redeemed, the experi-
ment would have been productive of not much mischief, had it
not been followed by repeated emissions to a much larger amount.
The subsequent history of Massachusetts abounds with proofs of
the evils with which paper money is fraught, whether it be or be
not a legal tender.
Paper money was also issued in other colonies, both in the North
and South and whether made a tender or not, was productive
of evils in proportion to the quantity emitted. In the war which
commenced in America in 1755, Virginia issued paper money at
several successive sessions, under the appellation of treasury notes.
This was made a tender. Emissions were afterwards made in 1769.
in 1771, and in 1773. These were not made a tender; but they
circulated together; were equally bills of credit; and were pro-
ductive of the same effects. In 1775 a considerable emission was
made for the purposes of the war. The bills were declared to be
current but were not made a tender. In 1776 an additional emis-
sion was made, and the bills were declared to be a tender. The
bills of 1775 and 1776 circulated together; were equally bills
of credit; and were productive of the same consequences.
Congress emitted bills of credit to a large amount; and did not,
perhaps could not, make them a legal tender. This power resided
in the States. In May, 1777, the legislature of Virginia passed
an act for the first time making the bills of credit issued under
the authority of congress- a tender so far as to extinguish interest.
It was not until March, 1781, that Virginia passed an act making
all the bills of credit which had been emitted by congress, and all
of which had been emitted by the State, a legal tender in payment
of debts. Yet they were in every sense of the word bills of credit,
previous to that time; and were productive of all the consequences
of paper money. We cannot then assent to the proposition, that
CRAIG ET AL. v. STATE OF MISSOURI. 107
the history of our country furnishes any just argument in favor
of that restricted construction of the constitution, for which the
counsel for the defendant in error contends.
The certificates for which this note was given, being in truth
"bills of credit" in the sense of the constitution, we are brought
to the inquiry: Is the note valid of which they form the con-
sideration?
It has been long settled, that a promise made in consideration
of an act which is forbidden by law is void. It will not be ques-
tioned, that an act forbidden by the constitution of the United
States, which is the supreme law, is against law. Now the consti-
tution forbids a State to "emit bills of credit." The loan of these
certificates is the very act which is forbid<}en. It is not the mak-
ing of them while they lie in the loan offices; but the issuing of
them, the putting them into circulation, which is the act of
emission, the act that is forbidden by the constitution. The con-
sideration of this note is the emission of bills of credit by the
State. The very act which constitutes the consideration, is the
act of emitting bills of credit, in the mode prescribed by the law
of Missouri; which act is prohibited by the constitution of the
United States.
Cases which we cannot distinguish from this in principle have
been decided in state courts of great respectability; and in this
court. . . . [Here follow statements of Springfield Bank v.
Merrick et al., 14 Mass. Eep., 322; Hunt v. Knickerbocker, 5
Johns., 327, and Patton v. Nicholson, 3 Wheaton, 204.]
A majority of the court feels constrained to say that the consid-
eration on which the note in this case was given, is against the
highest law of the land, and that the note itself is utterly void.
In rendering judgment for the plaintiff, the court for the State
of Missouri decided in favor of the validity of a law which is
repugnant to the constitution of the United States.
In the argument, we have been reminded by one side of the
dignity of a sovereign State, of the humiliation of her submitting
herself to this tribunal, of the dangers which may result from
inflicting a wound on that dignity; by the other, of the still
superior dignity of the people of the United States, who have
spoken their will in terms which we cannot misunderstand.
To these admonitions, we can only answer: that if the exercise
of that jurisdiction which has been imposed upon us by the con-
stitution and laws of the United States, shall be calculated to bring
on those dangers which have been indicated; or if it shall be in-
dispensable to the preservation of the Union, and consequently
108 CASES ON CONSTITUTIONAL LAW.
of the independence and liberty of these States; these are con-
siderations which address themselves to those departments which
may with perfect propriety be influenced by them. This depart-
ment can listen only to the mandates of law, and can tread only
that path which is marked out by duty.
The judgment of the Supreme Court of the State of Missouri
for the first judicial district is reversed, and the cause remanded,
with directions to enter judgment for the defendants.
[JUSTICES JOHNSON, THOMPSON, and McLEAN delivered dis-
senting opinions.]
JOHN BEISCOE AND OTHEKS v. THE PRESIDENT AND
DIRECTORS OF THE BANK OF THE COMMON-
WEALTH OF KENTUCKY.
11 Peters, 257. Decided 1837.
The case is stated in the opinion of the court. -. . .
J., delivered the opinion of the court.
This case is brought before this court, by a writ of error from
the court of appeals of the State of Kentucky, under the 25th
section of the Judiciary act of 1789. 1
An action was commenced by the Bank of the Commonwealth
of Kentucky, against the plaintiffs in error, in the Mercer
Circuit Court of Kentucky, on a note for $2,048.37, payable
to the president and directors of the bank; and the defendants
filed two special pleas, in the first of which oyer was prayed of
the note on which suit was brought, and they say that the plaint-
iff ought not to have, &c., because the note was given on the
renewal of a like note, given to the said bank; and they refer
to the act establishing the bank, and allege that it never received
any part of the capital stock specified in the act; that the bank
was authorized to issue bills of credit, on the faith of the State,
in violation of the constitution of the United States. That, by
various statutes, the notes issued were made receivable in dis-
charge of executions, and if not so received, the collection of the
money should be delayed, &c.; and the defendants aver that the
note was given to the bank on a loan of its bills, and that the
consideration, being illegal, was void.
1 1 Stat. at Large, 85.
BRISCOE ET AL. v. BANK OF KENTUCKY. 109
The second plea presents, substantially, the same .facts. To
both the pleas a general demurrer was filed; and the court sus-
tained the demurrer, and gave judgment in favor of the bank.
This judgment was removed, by appeal, to the court of appeals,
which is the highest court of judicature in the State, where the
judgment of the circuit court was affirmed; and being brought
before this court by writ of error, the question is presented whether
the notes issued by the bank are bills of credit, emitted by the
State, in violation of the constitution of the United States.
This cause is approached, under a full sense of its magnitude.
Important as have been the great questions brought before this
tribunal for investigation and decision, none have exceeded, if they
have equaled, the importance of that which arises in this case.
The amount of property involved in the principle is very large;
but this amount, however great, could not give to the case the
deep interest which is connected with its political aspect. . . .
The definition of the terms bills of credit, as used in the con-
stitution, is the first requisite in the investigation of this subject.
. . . The terms bills of credit in their mercantile sense, com-
prehend a great variety of evidence of debt, which circulate in
a commercial country. In the early history of banks, it seems
their notes were generally denominated bills of credit; but in
modern times they have lost that designation; and are now called,
either bank bills, or bank notes.
But the inhibition of the constitution applies to bills of credit,
in a more limited sense.
It would be difficult to classify the bills of credit which were
issued in the early history of this country. They were all designed
to circulate as money, being issued under the laws of the respective
colonies, but the forms were various in the different colonies, and
often in the same colony.
In some cases they were payable with interest, in others with-
out interest. Funds arising from certain sources of taxation were
pledged for their redemption, in some instances; in others they
were issued without such a pledge. They were sometimes made
a legal tender, at others not. In some instances, a refusal to receive
them operated as a discharge of the debt; in others, a postpone-
ment of it.
They were sometimes payable on demand; at other times, at
some future period. At all times the bills were receivable for
taxes, and in payment of debts due to the public; except, perhaps,
in some,instances, where they had become so depreciated as to be of
little or no value.
110 CASES ON CONSTITUTIONAL LAW.
These bills were frequently issued by committees, and sometimes
by an officer of the government, or an individual designated for
that purpose.
The bills of credit emitted by the States, during the Revolution,
and prior to the adoption of the constitution, were not very dis-
similar from those which the colonies had been in the practice of
issuing. There were some characteristics which were common to
all these bills. They were issued by the colony or State, and on
its credit. For in cases where funds were pledged, the bills were
to be redeemed at a future period, and gradually as the means
of redemption should accumulate. In some instances, congress
guaranteed the payment of bills emitted by a State.
They were, perhaps, never convertible into gold and silver, im-
mediately on their emission; as they were issued to supply the
pressing pecuniary wants of the government, their circulating as
money was indispensable. The necessity which required their
emission precluded the possibility of their immediate redemption.
In the case of Craig et al. v. The State of Missouri, 4 Peters,
410, this court was called upon, for the first time, to determine
what constituted a bill of credit, within the meaning of the Con-
stitution. A majority of the judges in that case, in the* language
of the Chief Justice, say, that "bills of credit signify a paper
medium, intended to circulate between individuals, and between
government and individuals, for the ordinary purposes of society."
A definition so general as this would certainly embrace every
description of paper which circulates as money.
Two of the dissenting judges, on that occasion, gave a more defi-
nite, though, perhaps, a less accurate meaning, of the terms bills
of credit.
By one of them it was said, "a bill of credit may, therefore,
be considered a bill drawn and resting merely on the credit of the
drawer, as contradistinguished from a fund constituted or pledged
for the payment of the bill." And in the opinion of the other,
it is said, "to constitute a bill of credit, within the meaning of
the constitution, it must be issued by a State, and its circulation,
as money, enforced by statutory provisions. It must contain a
promise of payment by the State generally, when no fund has been
appropriated to enable the holder to convert it into money. It
must be circulated on the credit of the State; not that it will be
paid on presentation, but that the State, at some future period,
on a time fixed or resting in its own discretion, will provide for
the payment."
These definitions cover a large class of the bills of credit issued
BRISCOE ET AL. v. BANK OF KENTUCKY. Ill
and circulated as money, but there are classes which they do not
embrace; and it is believed that no definition, short of a descrip-
tion of each class, would be entirely free from objection; unless
it be in the general terms used by the venerable and lamented
chief justice.
The definition, then, which does include all classes of bills of
credit emitted by the colonies or States, is a paper issued by the
sovereign power, containing a pledge of its faith, and designed to
circulate as money.
Having arrived at this point, the next inquiry in the case is
whether the notes of the Bank of the Commonwealth were bills
of credit within the meaning of the constitution.
The first section of the charter provides, that the bank shall
be established in the name and behalf of the commonwealth of
Kentucky, under the direction of a president and twelve directors
to be chosen by joint ballot of both houses of the general assembly,
&c. . . . [The second section provides for the incorporation
of these persons with the usual powers.] In the third section it is
declared, that the stock of the bank shall be exclusively the prop-
erty of the commonwealth of Kentucky, and that no individual
shall own any part of it. The fourth section authorizes the presi-
dent and directors to issue notes, &c.; and in the fifth section it
is declared, that the capital stock shall be $2,000,000, to be paid
as follows: "All moneys hereafter paid into the treasury for the
purchase of the vacant land of the commonwealth; all moneys
paid into the treasury for the purchase of land wai rants; all
moneys received for the sale of vacant lands west of the Tennes-
see Eiver, and so much of the capital stock owned by the State in
the Bank of Kentucky;" and as the treasurer of the State re-
ceived these moneys from time to time, he was required to pay
the same into the bank. . . . Certain limitations were im-
posed on loans to individuals, and the accommodations of the bank
were to be apportioned among the different counties of the State.
The president was required to make a report to each session of
the legislature. The notes were to be made payable in gold and
silver, and were receivable in payment of taxes and other debts
due to the State. All mortgages executed to the bank, gave *o it
a priority. By a supplementary act it was provided that the presi-
dent and directors might issue $5,000,000. In 1821, an act was
passed authorizing the treasurer of the State to receive the divi-
dends of the bank.
The notes issued by the bank were in the usual form of bank
notes, in which the Bank of the Commonwealth promised to pay
CASES ON CONSTITUTIONAL LAW.
to the bearer on demand the sum specified on the face of the note.
There is no evidence of any part of the capital having been
paid into the bank; and as the pleas, to which the demurrers were
filed, aver that no part of the capital was paid, the fact averred
is admitted on the record.
It is to be regretted that any technical point arising on the
pleadings should be relied on in this case, which involves princi-
ples and interests of such deep importance. Had the bank pleaded
over and stated the amount actually paid into it by the State,
under the charter, the ground on which it stands would have been
strengthened. . . .
On the part of the plaintiffs in error, it is contended, that the
provisions in the constitution that "no State shall coin money,"
"emit bills of credit," or "make anything but gold and silver coin
a tender in payment of debts," are three distinct powers which
are inhibited to the State; and that if the bills of the Bank of
the Commonwealth were substantially made a tender, by an act
of the legislature of Kentucky, it must be fatal to the action
of the bank in this case. . . .
But the main grounds on which the counsel for the plaintiffs
rely is that the Bank of the Commonwealth, in emitting the bills
in question, acted as the agent of the State; and that, conse-
quently, the bills were issued by the State. That, as a State
is prohibited from issuing bills of credit, it cannot do indirectly
what it is prohibited from doing directly. That the constitution
intended to place the regulation of the currency under the control
of the federal government; and that the act of Kentucky is not
only in violation of the spirit of the constitution, but repugnant
to its letter. These topics have been ably discussed at the bar and
in a printed argument on behalf of the plaintiffs.
That by the constitution the currency, so far as it is com-
posed of gold and silver, is placed under the exclusive control of
congress is clear; and it is contended from the inhibition on the
States to emit bills of credit, that the paper medium was intended
to be made subject to the same power. If this argument be cor-
rect, and the position that a State cannot do indirectly what it is
prohibited from doing directly be a sound one, then it must fol-
low, as a necessary consequence, that all banks incorporated by
a State are unconstitutional. And this, in the printed argument,
is earnestly maintained, though it is admitted not to be neces-
sary to sustain the ground assumed for the plaintiffs. The coun-
sel of the plaintiffs, who have argued the case at the bar, do not
carry the argument to this extent.
BRISCOE ET AL. v. BANK OF KENTUCKY. 113
This doctrine is startling, as it strikes a fatal blow against the
State banks, which have a capital of near four hundred millions
of dollars, and which supply almost the entire circulating medium
of the country. But let us for a moment examine it dispassion-
ately.
The federal government is one of delegated powers. All powers
not delegated to it, or inhibited to the States, are reserved to the
States or to the people. A State cannot emit bills of credit; or,
in other words, it cannot issue that description of paper to answer
the purposes of money, which was denominated, before the adop-
tion of the constitution, bills of credit. But a State may grant j
acts of incorporation for the attainment of those objects which are /;
essential to the interests of society. This power is incident toll
sovereignty; and there is no limitation in the federal constitution!
on its exercise by the States, in respect to the incorporation off
banks.
At the time the constitution was adopted, the Bank of North
America, and the Massachusetts Bank, and some others, were in
operation. It cannot, therefore, be supposed that the notes of these
banks were intended to be inhibited by the constitution, or that
they were considered as bills of credit within the meaning of that
instrument. In fact, in many' of their most distinguishing char-
acteristics, they were essentially different from bills of credit, in
any of the various forms in which they were issued.
If, then, the powers not delegated to the federal government,
nor denied to the States, are retained by the States or the people,
and by a fair construction of the terms bills of credit, as used
in the constitution, they do not include ordinary bank notes, does
it not follow that the power to incorporate banks to issue these
notes may be exercised by a State? A uniform course of action,
involving the right to the exercise of an important power by the
State governments for half a century, and this almost without
question, is no unsatisfactory evidence that the power is rightfully
exercised. But this inquiry, though embraced in the printed
argument, does not belong to the case, and is abandoned at the
bar.
A State cannot do that which the federal constitution declares
it shall not do. It cannot coin money. Here is an act inhibited
in terms so precise that they cannot be mistaken. They are sus-
ceptible of but one construction. And it is certain that a State
cannot incorporate any number of individuals, and authorize them
to coin money. Such an act would be as much a violation of the
constitution as if the money were coined by an officer of the State,
8
11-i CASES ON CONSTITUTIONAL LAW.
under its authority. The act, being prohibited, cannot be done
by a State either directly or indirectly.
And the same rule applies as to the emission of bills of credit
by a State. The terms used here are less specific than those which
relate to coinage. Whilst no one can mistake the latter, there are
great differences of opinion as to the construction of the former.
If the terms in each case were equally definite and were susceptible
of but one construction, there could be no more difficulty in
applying the rule in the one ease than in the other.
The weight of the argument is admitted, that a State cannot,
by any device that may be adopted, emit bills of credit. But the
question arises, what is a bill of credit within the meaning of the
constitution? On the answer to this must depend the constitu-
tionality or unconstitutionality of the act in question.
A State can act only through its agents; and it would be absurd
to say that any act was not done by a State which was done by its
authored agents.
To constitute a bill of credit within the constitution, it must
be issued by a State, on the faith of the State, and be designed
to circulate as money. It must be a paper which circulates on
the credit of the State; and is so Deceived and used in the ordi-
nary business of life.
The individual or committee who issue the bill must have the
power to bind the State; they must act as agents; and of course
do not incur any personal responsibility, nor impart, as individ-
uals, any credit to the paper. These are the leading characteris-
tics of a bill of credit, which a State cannot emit. . . .
Were these notes issued by the State?
Upon their face, they do not purport to be issued by the State,
but by the president and directors of the bank. They promise to
pay to bearer on demand the sums stated. Were they issued on
the faith of the State? The notes contain no pledge of the faith
of the State in any form. They purport to have been issued on the
credit of the funds of the bank, and must have been so received in
the community.
But these funds, it is said, belonged to the State; and the prom-
ise to pay on the face of the notes was made by the president and
directors as agents of the State. They do not assume to act as
agents, and there is no law which authorizes them to bind the
State. As in, perhaps, all bank charters, they had the power to
issue a certain amount of notes; but they determined the time
and circumstances which should regulate these issues.
When a State emits bills of credit, the amount to be issued is
BRISCOE ET AL. v. BANK OP KENTUCKY. 115
fixed by law, as also for the fund out of which they are to be paid, if
any fund be pledged for their redemption; and they are issued on
the credit of the State, which in some form appears upon the face
of the notes, or by the signature of the person who issues them.
As to the funds of the Bank of the Commonwealth, they were,
in part only, derived from the State. The capital, it is true, was
to be paid by the State; but in making loans, the bank was re-
quired to take good securities; and these constituted a fund, to
which the holders of the notes could look for payment, and which
could be made legally responsible.
In this respect the notes of this bank were essentially different
from any class of bills of credit which are believed to have been
issued.
The notes were not payable in gold and silver on demand, but
there was a fund, and, in all probability, a sufficient fund, to
redeem them. This fund was in possession of the bank, and under
the control of the president and directors. But whether the fund
was adequate to the redemption of the notes issued or not, is im-
material to the present inquiry. It is enough that the fund ex-
isted, independent of the State, and was sufficient to give some
degree of credit to the paper of the bank.
The question is not whether the Bank of the Commonwealth had
a large capital or a small one, or whether its notes were in good
credit or bad, but whether they were issued by the State, and
on the faith and credit of the State. The notes were received
in payment of taxes, and in discharge of all debts to the State;
and this, aided by the fund arising from notes discounted, with
prudent management, under favorable circumstances, might have
sustained, and it is believed did sustain to a considerable extent,
the credit of the bank. The notes of this bank which are still
in circulation are equal in value, it is said, to specie.
But there is another quality which distinguished these notes
from bills of credit. Every holder of them could not only look
to the funds of the bank for payment, but he had in his power
the means of enforcing it.
The bank could be sued; and the records of this court show
that while its paper was depreciated, a suit was prosecuted to
judgment against it by a depositor, and who obtained from the
bank, it is admitted, the full amount of his judgment in specie.
. . . [Here follows a description of bills issued by Maryland
and South Carolina.]
If the leading properties of the notes of the Bank of the Com-
monwealth were essentially different from any of the numerous
116 CASES ON CONSTITUTIONAL LAW.
classes of bills of credit, issued by the States or colonies; if they
were not emitted by the State, nor upon its credit, but on the
credit of the funds of the bank; if they were payable in gold
and silver on demand, and the holder could sue the bank; and if
to constitute a bill of credit, it must be issued by a State, and on
the credit of the State, and the holder could not, by legal means,
compel the payment of the bill, how can the character of these
two descriptions of paper be considered as identical? They were
both circulated as money; but in name, in form, and in sub-
stance, they differ.
It is insisted that the principles of this case were settled in
the suit of Craig et al. v. The State of Missouri. . . .
In that case the court decided that the following paper, issued
under a legislative act of Missouri, was a bill of credit within the
meaning of the constitution:
"This certificate shall be receivable at the treasury, or any of
the loan offices of the State of Missouri, in the discharge of taxes
or debts due to the States, in the sum of dollars, with
interest for the same, at the rate of two per cent, per annum
from the date." . . .
It is only necessary to compare these certificates with the notes
issued by the Bank of the Commonwealth to see that no two
things which have any property in common could be more unlike.
They both circulated as money, and were receivable on public
account; but in every other particular they were essentially dif-
ferent.
If to constitute a bill of credit either the form or substance
of the Missouri certificate is requisite, it is clear that the notes
of the Bank of the Commonwealth cannot be called bills of credit.
To include both papers under one designation would confound the
most important distinctions, not only as to their form and sub-
stance, but also as to their origin and effect.
There is no principle decided by the court in the case of Craig
v. The State of Missouri which at all conflicts with the views here
presented. Indeed the views of the court are sustained and
strengthened by contrasting the present case with that one. The
State of Kentucky is the exclusive stockholder in the Bank of
the Commonwealth: but does this fact change the character of
the corporation? Does it make the bank identical with the State?
And are the operations of the bank the operations of the State?
Is the bank the mere instrument of the sovereignty to effectuate
its designs; and is the State responsible for its acts? The answer
to these inquiries will be given in the language of this court, used
BRISCOE ET AL. v. BANK OF KENTUCKY. 117
in former adjudications. . . . [Here follow extracts from
Bank of the United States v. The Planters' Bank, 9 Wheat., 904,
and Bank of the Commonwealth of Kentucky v. Wistar, 3 Peters,
431.]
These extracts cover almost every material point raised in this
investigation. They show that a State, when it becomes a stock-
holder in a bank, imparts none of its attributes of sovereignty
to the institution; and that this is equally the case, whether
it own a whole or a part of the stock of the bank.
It is admitted by the counsel for the plaintiffs that a State may
become a stockholder in a bank; but they contend that it cannot
become the exclusive owner of the stock. They give no rule by
which the interest of a State in such an institution shall be grad-
uated, nor at what point the exact limit shall be fixed. May a
State own one-fourth, one-half, or three-fourths of the stock? If
the proper limit be exceeded, does the charter become unconsti-
tutional; and is its constitutionality restored if the State recede
within the limit? The court are as much at a loss to fix the
supposed constitutional boundary of this right as the counsel can
possibly be.
If the State must stop short of owning the entire stock, the
precise point may surely be ascertained. It cannot be supposed
that so important a constitutional principle as contended for exists
without limitation. If a State may own a part of the stock of a
bank, we know of no principle which prevents it from owning the
whole. As a stockholder, in the language of this court, above
cited, it can exercise no more power in the affairs of the corpora-
tion than is expressly given by the incorporating act. It has no
more power than any other stockholder to the same extent.
This court did not consider that the character of the incorpora-
tion was at all affected by the exclusive ownership of the stock by
the State. And they say that the case of the Planters' Bank pre-
sented stronger ground of defense than the suit against the Bank
of the Commonwealth. That in the former the State of Georgia
was not only a proprietor but a corporator; and that in the latter
the president and directors constituted the corporate body. And
yet in the case of the Planters' Bank the court decided the State
could only be considered as an ordinary corporator, both as it
regarded its powers and responsibilities.
If these positions be correct, is there not an end to this con-
troversy? If the Bank of the Commonwealth is not the State,
nor the agent of the State; if it possess no more power than is
given to it in the act of incorporation; and precisely the same as
118 CASES ON CONSTITUTIONAL LAW.
if the stock were owned by private individuals, how can it be .con-
tended that the notes of the bank can be called bills of credit in
contradistinction from the notes of other banks? If, in becom-
ing an exclusive stockholder in this bank the State imparts to it
none of its attributes of sovereignty; if it holds the stock as any
other stockholder would hold it, how can it be said to emit bills
of credit? Is it not essential to constitute a bill of credit within
the constitution that it should be emitted by a State? Under its
charter the bank has no power to emit bills which have the impress
of the sovereignty or which contain a pledge of its faith. It is a
simple corporation, acting within the sphere of its corporate
powers, and can no more transcend them than any other banking
institution. The State, as a stockholder, bears the same relation
to the bank as any other stockholder.
The funds of the bank and its property, of every description, are
held responsible for the payment of its debts, and may be reached
by legal or equitable process. In this respect, it can claim no
exemption under the prerogatives of the Slates. And, if in the
course of its operations its notes have depreciated like the notes
of other banks under the pressure of circumstances, still it must
stand or fall by its charter. In this its powers are defined; and
its rights, and the rights of those who give credit to it, are guar-
anteed. And even an abuse of its powers, through which its
credit has been impaired and the community injured, cannot
be considered in this case.
We are of the opinion that the act incorporating the Bank
of the Commonwealth was a constitutional exercise of power by
the State of Kentucky, and, consequently, that the- notes issued
by the bank are not bills of credit within the meaning of the
federal constitution. The judgment of the court of appeals is,
therefore, affirmed, with interest and 1 costs. . . .
[MR. JUSTICE THOMPSON delivered a concurring opinion, and
MR. JUSTICE STORY a dissenting one.]
HEPBURN v. GRISWOLD.
8 Wallace, 603. Decided 1870.
Error to the Court of Appeals of Kentucky, the case being this:
On the 20th of June, 1860, a certain Mrs. Hepburn made a
promissory note, by which she promised to pay to Henry Gris-
HEPBURN v. GRISWOLD. 119
wold on the 20th of February, 1862, eleven thousand two hun-
dred and fifty "dollars."
At the time when the note was made, as also at the time when
it fell due, there was, confessedly, no lawful money of the United
States, or money which could lawfully be tendered in payment
of private debts, but gold and silver coin.
Five days after the day when the note by its terms fell due, that
is to say, on the 25th of February, 1862, in an exigent crisis of
the nation, in which the government was engaged in putting
down an armed rebellion of vast magnitude, Congress passed an
act authorizing the issue of $150,000,000 of its own notes, 1 and
enacted in regard to them, by one clause in the first section of
the act, as follows:
"And such notes, herein authorized, shall be receivable in pay-
ment of all taxes, internal duties, excises, debts, and demands of
every kind due to the United States, except duties on imports,
and of all claims and demands against the United States of every
kind whatsoever, except for interest upon bonds and notes, which
shall be paid in coin; and shall also be lawful money and a legal
tender in payment of all debts, public and private, within the
United States, except duties on imports and interest as aforesaid."
The note given by Mrs. Hepburn not being paid at maturity,
interest accrued on it. And in March, 1864, suit having been
brought on the note in the Louisville Chancery Court, she ten-
dered in United States notes issued under the act mentioned
$12,720, the amount of principal of the note with the interest
accrued to the date of tender, and some costs in satisfaction of
the plaintiff's claim. The tender was refused. The notes were
then tendered and paid into court; and the chancellor, "resolv-
ing all doubts in favor of Congress," declared the tender good and
adjudged the debt, interest and costs to be satisfied accordingly.
The case was then taken by Griswold to the Court of Errors of
Kentucky, which reversed the chancellor's judgment, and remand-
ed the case with instructions to enter a contrary judgment.
From the judgment of the Court of Errors of Kentucky, the
case was brought by Mrs. Hepburn here. . . %
The CHIEF JUSTICE delivered the opinion of the court.
The question presented for our determination by the record
in this case is, whether or not the payee or assignee of a note,
made before the 25th of February, 1862, is obliged by law to
i For the general form of the notes, see 7 Wallace, 26.
120 CASES ON CONSTITUTIONAL LAW.
accept in payment United States notes, equal in nominal amount
to the sum due according to its terms, when tendered by the
maker or other party bound to pay it? And this requires, in the
first place, a construction of that clause of the first section
of the act of Congress passed on that day, which declares
the United States notes, the issue of which was authorized by the
statute, to be a legal tender in payment of debts. The clause has
already received much consideration here, and this court has
held that, upon a sound construction, neither taxes imposed by
State legislation, 2 nor demands upon contracts which stipulate
in terms for the delivery of coin or bullion, 3 are included by legis-
lative intention under the description of debts public and private.
We are now to determine whether this description embraces debts
contracted before as well as after the date of the act.
It is an established rule for the construction of statutes, that
the terms employed by the legislature are not to receive an inter-
pretation which conflicts with acknowledged principles of justice
and equity, if another sense, consonant with those principles, can
be given to them. But this rule cannot prevail where the intent
is clear. Except in the scarcely supposable case where a statute
sets at naught the plainest precepts of morality and social obliga-
tion, courts must give effect to the clearly ascertained legislative
intent, if not repugnant to the fundamental law ordained in the
Constitution.
Applying the rule just stated to the act under consideration,
there appears to be strong reason for construing the word debts
as having reference only to debts contracted subsequent to the
enactment of the law. For no one will question that the United
States notes, which the act makes a legal tender in payment, are
essentially unlike in nature, and, being irredeemable in coin, are
necessarily unlike in value, to the lawful money intended by par-
ties to contracts for the payment of money made before its pas-
sage. The lawful money then in use and made a legal tender in
payment, consisted of gold and silver coin. The currency in use
under the act, and declared by its terms to be lawful money and
a legal tender, consists of notes or promises to pay impressed upon
paper, prepared in convenient form for circulation, and protected
against counterfeiting by suitable devices and penalties. The
former possess intrinsic value, determined by the weight and
fineness of the metal; the latter have no intrinsic value, but a
purchasing value, determined by the quantity in circulation, by
2 Lane County v. Oregon, 7 Wai- Bronson v. Rodes, 7 Id., 229;
lace, 71. Butler v. Horwitz, Ib., 258.
HEPBURN v. GRISWOLD. 121
general consent to its currency in payments, and by opinion as to
the probability of redemption in coin. Both derive, in different
degrees, a certain additional value from their adaptation to cir-
culation by the form and impress given to them under national
authority, and from the acts making them respectively a legal
tender.
Contracts for the payment of money, made before the act of
1862, had reference to coined money, and could not be discharged,
unless by consent, otherwise than by tender of the sum due in
coin. Every such contract, therefore, was, in legal import, a con-
tract for the payment of coin.
There is a well-known law of currency, that notes or promises
to pay, unless made conveniently and promptly convertible into
coin at the will of the holder, can never, except under unusual
and abnormal conditions, be at par in circulation with coin. It
is an equally well known law, that depreciation of notes must in-
crease with the increase of the quantity put in circulation and the
diminution of confidence in the ability or disposition to redeem.
Their appreciation follows the reversal of these conditions. No
act making them a legal tender can change materially the opera-
tion of these laws. Their force has been strikingly exemplified
in the history of the United States notes. Beginning with a very
slight depreciation when first issued, in March, 1862, they sank
in July, 1864, to the rate of two dollars and eighty-five cents for
a dollar in gold, and then rose until recently a dollar and twenty
cents in paper became equal to a gold dollar.
Admitting, then, that prior contracts are within the intention
of the act, and assuming that the act is warranted by the Con-
stitution, it follows that the holder of a promissory note, made be-
fore the act, for a thousand dollars, payable, as we have just seen,
according to the law and according to the intent of the parties, in
coin, was required, when depreciation reached its lowest point,
to accept in payment a thousand note dollars, although with the
thousand coin dollars, due under the contract, he could have pur-
chased on that day two thousand eight hundred and fifty such
dollars. . Every payment, since the passage of the act, of a note
of earlier date, has presented similar, though less striking features.
Now, it certainly needs no argument to prove that an act, com-
pelling acceptance in satisfaction of any other than stipulated pay-
ment, alters arbitrarily the terms of the contract, and impairs its
obligation, and that the extent of impairment is in the proportion
of the inequality of the payment accepted under the constraint
of the law to the payment due under the contract. Nor does it
122 CASES ON CONSTITUTIONAL LAW.
need argument to prove that the practical operation of such an
act is contrary to justice and equity. It follows that no construc-
tion which attributes such practical operation to an act of Congress
is to be favored, or indeed to be admitted, if any other can be
reconciled with the manifest intent of the legislature.
What, then, is that manifest intent? Are we at liberty, upon
a fair and reasonable construction of the act, to say that Con-
gress meant that the word "debts" used in the act should not in-
clude debts contracted prior to its passage?
In the case of Bronson v. Rodes, we thought ourselves war-
ranted in holding that this word, as used in the statute, does not
include obligations created by express contracts for the payment
of gold and silver, whether coined or in bullion. This conclusion
rested, however, mainly on the terms of the act, which not only
allow, but require payments in coin by or to the government, and
may be fairly considered, independently of considerations belonging
to the law of contracts for the delivery of specified articles, as sanc-
tioning special private contracts for like payments; without which,
indeed, the provisions relating to government payments could
hardly have practical effect. This consideration, however, does
not apply to the matter now before us. There is nothing in the
terms of the act which looks to any difference in its operation on
different descriptions of debts payable generally in money, that
is to say, in dollars and parts of a dollar. These terms, on the
contrary, in their obvious import, include equally all debts not
specially expressed to be payable in gold or silver, whether arising
under past contracts and already due, or arising under such con-
tracts and to become due at a future day, or arising and becoming
due under subsequent contracts. A strict and literal construc-
tion indeed would, as suggested by Mr. Justice Story (1 Story on
the Constitution, 921), in respect to the same word used in the
Constitution, limit the word "debts" to debts existing; and if this
construction cannot be accepted because the limitation sanctioned
by it cannot be reconciled with the obvious scope and purpose
of the act, it is certainly conclusive against any interpretation
which will exclude existing debts from its operation. The same
conclusion results from the exception of interest on loans and
duties on imports from the effect of the legal tender clause. This
exception affords an irresistible implication that no description
of debts, whenever contracted, can be withdrawn from the effect
of the act if not included within the terms or the reasonable in-
tent of the exception. And it is worthy of observation in this con-
nection, that in all the debates to which the act gave occasion in
HEPBURN v. GRISWOLD. 123
Congress, no suggestion was ever made that the legal tender clause
did not apply as fully to contracts made before as to contracts
made after its passage.
These considerations seem to us conclusive. We do not think
ourselves at liberty, therefore, to say that Congress did not intend
to make the notes authorized by it a legal tender in payment of
debts contracted before the passage of the act.
We are thus brought to the question, whether Congress has
power to make notes issued under its authority a legal tender in
payment of debts, which, when contracted, were payable by law
in gold and silver coin.
The delicacy and importance of this question has not been over-
stated in the argument. This court always approaches the con-
sideration of questions of this nature reluctantly; and its constant
rule of decision has been, and is, that acts of Congress must be
regarded as constitutional, unless clearly shown to be otherwise.
But the Constitution is the fundamental law of the United
States. By it the people have created a government, defined its
powers, prescribed their limits, distributed them among the dif-
ferent departments, and directed, in general, the manner of their
exercise. No department of the government has any other powers
than those thus delegated to it by the people. All the legislative
power granted by the Constitution belongs to Congress; but it has
no legislative power which is not thus granted. And the same ob-
servation is equally true in its application to the executive and
judicial powers granted respectively to the President and the
courts. All these powers differ in kind, but not in source or in
limitation. They all arise from the Constitution, and are limited
by its terms.
It is the function of the judiciary to interpret and apply the
law to cases between parties as they arise for judgment. It can
only declare what the law is, and enforce by proper process the
law thus declared. But, in ascertaining the respective rights of
parties, it frequently becomes necessary to consult the Consti-
tution. For there can be no law inconsistent with the funda-
mental law. No enactment not in pursuance of the authority
conferred by it can create obligations or confer rights. For such
is the express declaration of the Constitution itself in these words:
"The Constitution, and the laws of the United States which
shall be made in pursuance thereof, and all treaties made, or which
shall be made under the authority of the United States, shall be
the supreme law of the land; and the judges of every State shall
124 CASES ON CONSTITUTIONAL LAW.
be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding."
Not every act of Congress, then, is to be regarded as the su-
preme law of the land; nor is it by every act of Congress that the
judges are bound. This character and this force belong only to
such acts as are "made in pursuance of the Constitution."
When, therefore, a case arises for judicial determination, and
the decision depends on the alleged inconsistency of a legislative
provision with the fundamental law, it is the plain duty of the
court to compare the act with the Constitution, and if the former
cannot, upon a fair construction, be reconciled with the latter,
to give effect to the Constitution rather than the statute. This
seems so plain that it is impossible to make it plainer by argu-
ment. If it be otherwise, the Constitution is not the supreme law;
it is neither necessary or useful, in any case, to inquire whether
or not any act of Congress was passed in pursuance of it; and the
oath which every member of this court is required to ta,ke, that
he "will administer justice without respect to persons, and do equal
right to the poor and the rich, and faithfully perform the duties
incumbent upon him to the best of his ability and understanding,
agreeably to the Constitution and laws of the United States," be-
comes an idle and unmeaning form.
The case before us is one of private right. The plaintiff in the
court below sought to recover of the defendants a certain sum
expressed on the face of a promissory note. The defendants in-
sisted on the right, under the act of February 25th, 1862, to acquit
themselves of their obligation by tendering in payment a sum nom-
inally equal in United States notes. But the note had been exe-
cuted before the passage of the act, and the plaintiff insisted on
his right under the Constitution to be paid the amount due in
gold and silver. And it has not been, and cannot be, denied that
the plaintiff was entitled to judgment according to his claim, unless
bound by a constitutional law to accept the notes as coin.
Thus two questions were directly presented: Were the defend-
ants relieved by the act from the obligation assumed in the con-
tract? Could the plaintiff be compelled, by a judgment of the
court, to receive in payment a currency of different nature and
value from that which was in the contemplation of the parties
when the contract was made?
The Court of Appeals resolved both questions in the negative,
and the defendants, in the original suit, seek the reversal of that
judgment by writ of error.
It becomes our duty, therefore, to determine whether the act of
HEPBURN v. GRISWOLD. 125
February 25, 1862, so far as it makes United States notes a legal
tender in payment of debts contracted prior to its passage, is
constitutional and valid or otherwise. Under a deep sense of our
obligation to perform this duty to the best of our ability and
understanding, we shall proceed to dispose of the case presented
by the record.
We have already said, and it is generally, if not universally, con-
ceded, that the government of the United States is one of limited
powers, and that no department possesses any authority not granted
by the Constitution.
It is not necessary, however, in order to prove the existence of
a particular authority, to show a particular and express grant. The
design of the Constitution was to establish a government competent
to the direction and administration of the affairs of a great nation,
and, at the same time, to mark, by sufficiently definite lines, the
sphere of its operations. To this end it was needful only to make
express grants of general powers, coupled with a further grant of
such incidental and auxiliary powers as might be required for the
exercise of the powers expressly granted. These powers are neces-
sarily extensive. It has been found, indeed, in the practical ad-
ministration of the government, that a very large part, if not the
largest part, of its functions have been performed in the exercise
of powers thus implied.
But the extension of power by implication was regarded with
some apprehension by the wise men who framed, and by the intelli-
gent citizens who adopted, the Constitution. This apprehension
is manifest in the terms by which the grant of incidental and auxil-
iary powers is made. All powers of this nature are included under
the description of "power to make all laws necessary and proper for
carrying into execution the powers expressly granted to Congress
or vested by the Constitution in the government or in any of its
departments or officers."
The same apprehension is equally apparent in the tenth article
of the amendments, which declares that "the powers not delegated
to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States or the people."
We do not mean to say that either of these constitutional provi-
sions is to be taken as restricting any exercise of power fairly war-
ranted by legitimate derivation from one of the enumerated or
express powers. The first was undoubtedly introduced to exclude
all doubt in respect to the existence of implied powers; while the
words "necessary and proper" were intended to have a "sense,",
to use the words of Mr. Justice Story, "at once admonitory and
126 CASES ON CONSTITUTIONAL LAW.
directory," and to require that the means used in the execution
of an express power "should be bona fide appropriate to the end." 1
The second provision was intended to have a like admonitory and
directory sense, and to restrain the limited government established
under the Constitution from the exercise of powers not clearly
delegated, or derived by just inference from powers so delegated.
It has not been maintained in argument, nor indeed, would
any one, however slightly conversant with constitutional law, think
of maintaining that there is in the Constitution any express grant
of legislative power to make any description of credit currency
a legal tender in payment of debts. We must inquire then
whether this can be done in the exercise of an implied power.
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 McCullough v. The State of Maryland, 2 and the statement then
made has ever since been accepted as a correct exposition of the
Constitution. His words were these: "Let the end be legitimate,
let it be within the scope of the Constitution, and all means which
are appropriate, which are plainly adapted to that end, which are
not prohibited, but consistent 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 Congress, in the execution of its powers, adopt measures
which are prohibited by the Constitution, or should Congress,
under the pretext of executing its powers, pass laws for the accom-
plishment of objects not intrusted to the government, 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 law is not prohibited, and is really
calculated to effect any of the objects intrusted to the govern-
ment, to undertake here to inquire into the degree of its necessity
would be to pass the line which circumscribes the judicial depart-
ment, and tread on legislative ground." 3
It must be taken then as finally settled, so far as judicial deci-
sions 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 the letter and spirit of the Consti-
i 2 Story on the Constitution, p. 24 Wheaton, 421.
142, 1253. 3 4 Wheaton, 423.
4 HEPBURN v. GRISWOLD. 127
tution; laws really calculated to effect objects intrusted to the
government.
The question before us, then, resolves itself into this: "Is the
clause which makes United States notes a legal tender for debts
contracted prior to its enactment, a law of the description stated in
the rule?"
It is not doubted that the power to establish a standard of value
by which all other values may be measured, or, in other words, to
determine what shall be lawful money and a legal tender, is in its
nature, and of necessity, a governmental power. It is in all coun-
tries exercised by the government. In the United States, so far
as it relates to the precious metals, it is- vested in Congress by the
grant of the power to coin money. But can a power to impart
these qualities to notes, or promises to pay money, when offered
in discharge of pre-existing debts, be derived from the coinage
power, or from any other power expressly given?
It is certainly not the same power as the power to coin money.
Nor is it in any reasonable or satisfactory sense an appropriate
or plainly adapted means to the exercise of that power. Nor is
there more reason for saying that it is implied in, or incidental
to, the power to regulate the value of coined money of the United
States, or of foreign coins. This power of regulation is a power
to determine the weight, purity, form, impression, and denomina-
tion of the several coins,, and their relation to each other, and
the relations of foreign coins to the monetary unit of the United
States.
Nor is the power to make notes a legal tender the same as the
power to issue notes to be used as currency. The old Congress,
under the Articles of Confederation, was clothed by express grant
with the power to emit bills of credit, which are in fact notes for
circulation as currency; and yet that Congress was not clothed
with the power to make these bills a legal tender in payment. And
this court has recently held that the Congress, under the Consti-
tution, possesses, as incidental to other powers, the same power
as the old Congress to emit bills or notes; but it was expressly
declared at the same time that this decision concluded nothing
on the question of legal tender. Indeed, we are not aware that
it has ever been claimed that the power to issue bills or notes has
any identity with the power to make them a legal tender. On the
contrary, the whole history of the country refutes that notion.
The States have always been held to possess the power to author-
ize and regulate the issue of bills for circulation by banks or indi-
viduals, subject, as has been lately determined, to the control of
128 CASES ON CONSTITUTIONAL LAW.
Congress, for the purpose of establishing and securing a National
currency; and yet the States are expressly prohibited by the Con-
stitution from making anything but gold and silver coin a legal
tender. This seems decisive on the point that the power to issue
notes and the power to make them a legal tender are not the
same power, and that they have no necessary connection with
each other.
But it has been maintained in argument that the power to
make United States notes a legal tender in payment of all debts
is a means appropriate and plainly adapted to the execution of the
power to carry on war, of the power to regulate commerce, and
of the power to borrow money. If it is, and is not prohibited, nor
inconsistent with the letter or spirit of the Constitution, then the
act which makes them such legal tender must be held to be con-
stitutional.
Let us, then, first inquire whether it is an appropriate and plain-
ly adapted means for carrying on war? The affirmative argument
may be thus stated: Congress has power to declare and provide
for carrying on war; Congress has also power to emit bills of credit,
or circulating notes receivable for government dues, and payable, so
far at least as parties are willing to receive them, in discharge of
government obligations; it will facilitate the use of such notes
in disbursements to make them a legal tender in payment of exist-
ing debts; therefore Congress may make such notes a legal tender.
It is difficult to say to what express power the authority to make
notes a legal tender in payment of pre-existing debts may not be
upheld as incidental, upon the principles of this argument. Is
there any power which does not involve the use of money? And
is there any doubt that Congress may issue and use bills of credit
as money in the execution of any power? The power to establish
post-offices and post-roads, for example, involves the collection
and disbursement of a great revenue. Is not the power to make
notes a legal tender as clearly incidental to this power as to the
war power?
The answer to this question does not appear to us doubtful.
The argument, therefore, seems to prove too much. It carries the
doctrine of implied powers very far beyond any extent hitherto
given to it. It asserts that whatever in any degree promotes an
end within the scope of a general power, whether, in the correct
sense of the word, appropriate or not, may be done in the exercise
of an implied power.
Can this proposition be maintained?
It is said that this is not a question for the court deciding a
HEPBURN v. GRISWOLD. 129
cause, but for Congress exercising the power. But the decisive
answer to this is that the admission of a legislative power to de-
termine finally what powers have the described relation as means
to the execution of other powers plainly granted, and, then, to
exercise absolutely and without liability to question, in cases in-
volving private rights, the powers thus determined to have that
relation, would completely change the nature of American gov-
ernment. It would convert the government, which the people
ordained as a government of limited powers, into a government of
unlimited powers. It would confuse the boundaries which sep-
arate the executive and judicial from the legislative authority. It
would obliterate every criterion which this court, speaking through
the venerated Chief Justice in the case already cited, established
for the determination of the question whether legislative acts are
constitutional or unconstitutional.
Undoubtedly among means appropriate, plainly adapted, really
calculated, the legislature has unrestricted choice. But there can
be no implied power to use means not within the description.
Now, then, let it be considered what has actually been done in
the provision of a National currency. In July and August, 1861,
and February, 1862, the issue of sixty millions of dollars in
United States notes, payable on demand, was authorized. 1 They
were made receivable in payments, but were not declared a legal
tender until March, 1862, 2 when the amount in circulation had
been greatly reduced by receipt and cancellation. In 1862 and
1863 3 the issue of four hundred and fifty millions in United States
notes, payable, not on demand, but, in effect, at the convenience
of the government, was authorized, subject to certain restrictions
as to fifty millions. These notes were made receivable for the
bonds of the National loans, for all debts due to or from the
United States, except duties on imports and interest on the public
debt, and were also declared a legal tender. In March, 1863, 4 the
issue of notes for parts of a dollar was authorized to an amount
not exceeding fifty millions of dollars. These notes were not de-
clared a legal tender, but were made redeemable under regulations
to be prescribed by the Secretary of the Treasury. In February,
1863, 5 the issue of three hundred millions of dollars in notes of
the National banking associations was authorized. These notes
were made receivable to the same extent as United States notes,
i 12 Stat. at Large, 259, 313 and s ib., 345, 532 and 7C9.
338. * Ib., 711.
2 Ib., 370. s Ib., 669.
130 CASES ON CONSTITUTIONAL LAW.
and provision was made to secure their redemption, but they were
not made a legal tender.
The several descriptions of notes have since constituted, under
the various acts of Congress, the common currency of the United
States. The notes which were not declared a legal tender have
circulated with those which were so declared without unfavorable
discrimination.
It may be added as a part of the history that other issues, bear-
ing interest at various rates, were authorized and made a legal
tender, except in redemption of bank notes, for face amount ex-
clusive of interest. Such were the one and two years five per cent,
notes and three years compound interest notes. 6 These notes
never entered largely or permanently into the circulation; and
there is no reason to think that their utility was increased or di-
minished by the act which declared them a legal tender for face
amount. They need not be further considered here. They serve
only to illustrate the tendency remarked by all who have investi-
gated the subject of paper money, to increase the volume of irre-
deemable issues, and to extend indefinitely the application of the
quality of legal tender. That it was carried no farther during the
recent civil war, and has been carried no farther since, is due to
circumstances, the consideration of which does not belong to this
discussion.
"We recur, then, to the question under consideration. No one
questions the general constitutionality, and not very many, perhaps,
the general expediency of the legislation by which a note currency
has been authorized in recent years. The doubt is as to the power
to declare a particular class of these notes to be a legal tender in
payment of pre-existing debts.
The only ground upon which this power is asserted is, not that
the issue of notes was an appropriate and plainly adapted means
for carrying on the war, for that is admitted; but that the making
of them a legal tender to the extent mentioned was such a means.
Now, we have seen that of all the notes issued those not de-
clared a legal tender at all constituted a very large proportion,
and that they circulated freely and without discount.
It may be said that their equality in circulation and credit was
due to the provision made by law for the redemption of this paper
in legal tender notes. But this provision, if at all useful in this
respect, was of trifling importance compared with that which made
them receivable for government dues. All modern history testifies
6 13 Id., 218, 425.
HEPBURN v. GRISWOLD. 131
that, in time of war especially, when taxes are augmented, large
loans negotiated, and heavy disbursements made, notes issued by
the authority of the government, and made receivable for dues of
the government, always obtain at first a ready circulation; and
even when not redeemable in coin, on demand, are as little and
usually less subject to depreciation than any other description of
notes, for the redemption of which no better provision is made.
And the history of the legislation under consideration is, that it
was upon this quality of receivability, and not upon the quality of
legal tender, that reliance for circulation was originally placed; for
the receivability clause appears to have been in the original draft
of the bill, while the legal tender clause seems to have been intro-
duced at a later stage of its progress.
These facts certainly are not without weight as evidence that all
the useful purposes of the notes would have been fully answered
without making them a legal tender for pre-existing debts. It is
denied, indeed, by eminent writers, that the quality of legal tender
adds any thing at all to the credit or usefulness of government
notes. They insist, on the contrary, that it impairs both. How-
ever this may be, it must be remembered that it is as a means to
an end to be attained by the action of the government, that the
implied power of making notes a legal tender in all payments is
claimed under the Constitution. Now, how far is the government
helped by this means? Certainly it cannot obtain new supplies or
services at a cheaper rate, for no one will take the notes for more
than they are worth at the time of the new contract. The price will
rise in the ratio of the depreciation, and this is all that could hap-
pen if the notes were not made a legal tender. But it may be said
that the depreciation will be less to him who takes them, from
the government, if the government will pledge to him its power
to compel his creditors to receive them at par in payments. This
is, as we have seen, by no means certain. If the quantity issued
be excessive, and redemption uncertain and remote, great depre-
ciation will take place; if, on the other hand, the quantiy is only
adequate to the demands of business, and confidence in early re-
demption is strong, the notes will circulate freely whether made
a legal tender or not.
But if it be admitted that some increase of availability is de-
rived from making the notes a legal tender under new contracts, it
by no means follows that any appreciable advantage is gained by
compelling creditors to receive them in satisfaction of pre-exist-
ing debts. And there is abundant evidence, that whatever benefit
is possible from that compulsion to some individuals or to the
132 CASES ON CONSTITUTIONAL LAW.
government, is far more than outweighed by the losses of property,
the derangement of business, the fluctuations of currency and val-
ues, and the increase of prices to the people and the government,
and the long train of evils which flow from the use of irredeemable
paper money. It is true that these evils are not to be attributed
altogether to making it a legal tender. But this increases these
evils. It certainly widens their extent and protracts their con-
tinuance.
We are unable to persuade ourselves that an expedient of this
sort is an appropriate and plainly adapted means for the execution
of the power to declare and carry on war. If it adoVs nothing to
the utility of the notes, it cannot be upheld as a means to the end
in furtherance of which the notes are issued. Nor can it, in our
judgment, be upheld as such, if, while facilitating in some degree
the circulation of the notes, it debases and injures the currency in
its proper use to a much greater degree. And these considerations
seem to us equally applicable to the powers to regulate commerce
and to borrow money. Both powers necessarily involve the use
of money by the people and by the government, but neither, as
we think, carries with it as an appropriate and plainly adapted
means to its exercise, the power of making circulating notes a
legal tender in payment of pre-existing debts.
But there is another view, which seems to us decisive, to what-
ever express power the supposed implied power in question may
be referred. In the rule stated by Chief Justice Marshall, the
words appropriate, plainly adapted, really calculated, are qualified
by the limitation that the means must be not prohibited, but con-
sistent with the letter and spirit of the Constitution. Nothing so
prohibited or inconsistent can be regarded as appropriate, or plainly
adapted, or really calculated means to any end.
Let us inquire, then, first, whether making bills of credit a legal
tender, to the extent indicated, is consistent with the spirit of the
Constitution. Among the great cardinal principles of that instru-
ment, no one is more conspicuous or more venerable than the estab-
lishment of justice. And what was intended by the establishment
of justice in the minds of the people who ordained it is, happily,
not a matter of disputation. It is not left to inference or conjec-
ture, especially in its relations to contracts.
When the Constitution was undergoing discussion in the Con-
vention, the Congress of the Confederation was engaged in the
consideration of the ordinance for the government of the territory
northwest of the Ohio, the only territory subject at that time to
its regulation and control. By this ordinance certain fundamental
HEPBURN v. GRISWOLD. 133
articles of compact were established between the original States
and the people and States of the territory, for the purpose, to use
its own language, "of extending the fundamental principles of
civil and religious liberty, whereon these republics" (the States
united under the Confederation), "their laws and constitutions are
erected." Among these fundamental principles was this: "And
in the just preservation of rights and property it is understood
and declared that no law ought ever to be made, or have force in
the said territory, that shall in any manner whatever interfere
with or affect private contracts or engagements bona fide and with-
out fraud previously formed."
The same principle found more condensed expression in that
most valuable provision of the Constitution of the United States,
ever recognized as an efficient safeguard against injustice, that "no
State shall pass any law impairing the obligation of contracts."
It is true that this prohibition is not applied in terms to the
government of the United States. Congress has express power to
enact bankrupt laws, and we do not say that a law made in the
execution of any other express power, which, incidentally only,
impairs the obligation of a contract, can be held to be unconstitu-
tional for that reason.
But we think it clear that those who framed and those who
adopted the Constitution, intended that the spirit of this prohi-
bition should pervade the entire body "of legislation, and that the
justice which the Constitution^ was ordained, to .establish was not
thought by them to be compatible 'with Tegisl^tion of an opposite
tendency. In otter words, we cannot dotib't thai a law not made
in pursuance of an express poVver^ J which necessarily and in its
direct operation impairs t'he obligation of contracts, is inconsistent
with the spirit of the Constitution? '
Another provision, found ihine fifth amendment, must be con-
sidered in this connection. We refer to that which ordains that
private property shall not be taken for public use without com-
pensation. This provision is kindred in spirit to that which for-
bids legislation impairing the obligation of contracts; but, unlike
that, it is addressed directly and solely to the National govern-
ment. It does not, in terms, prohibit legislation which appropri-
ates the private property of one class of citizens to the use of an-
other class; but if such property cannot be taken for the benefit
of all, without compensation, it is difficult to understand how it
can be so taken for the benefit of a part without violating the spirit
of the prohibition.
But there is another provision in the same amendment, which,
134 CASES ON CONSTITUTIONAL LAW.
in our judgment, cannot have its full and intended effect unless
construed as a direct prohibition of the legislation which we have
been considering. It is that which declares that "no person shall
be deprived of life, liberty, or property, without due process of law."
It is not doubted that all the provisions of this amendment op-
erate directly in limitation and restraint of the legislative powers
conferred by the Constitution. The only question is, whether an
act which compels all those who hold contracts for the payment of
gold and silver money to accept in payment a currency of inferior
value deprives such persons of property without due process of law.
It is quite clear, that whatever may be the operation of such an
act, due process of law makes no part of it. Does it deprive any
person of property? A very large proportion of the property of
civilized men exists in the form of contracts. These contracts al-
most invariably stipulate for the payment of money. And we have
already seen that contracts in the United States, prior to the act
under consideration, for the payment of money, were contracts to
pay the sum specified in gold and silver coin. And it is beyond
doubt that the holders of these contracts were and are as fully
entitled to the protection of this constitutional provision as the
holders of any other description of property.
But it may be said that the holders of no description of property
are protected by it from legislation which incidentally only im-
pairs its value. And it may, he. ^ urged in illustration that the hold-
ers of stock in a turnpike, a bridge, or a manufacturing corpora-
tion, or an insurance, company, or a -bank, cannot invoke its pro-
tection against legislation, ^ T hicn by, authorizing, similar works or
corporations, reduoes.it a price in t^ie market, But all this does not
appear to meet the ie,al difficulty, la -the cases mentioned the
injury is purely contingent and ^incidental. In the case we are
considering it is direct and inevitable.
If in the cases mentioned the holders of the stock were required
by law to convey it on demand to any one who should think fit to
offer half its value for it, the analogy would be more obvious. No
one probably could be found to contend that an act enforcing the
acceptance of fifty or seventy-five acres of land in satisfaction of
a contract to convey a hundred would not come within the prohi-
bition against arbitrary privation of property.
"VVe confess ourselves unable to perceive any solid distinction be-
tween 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,
according tc their terms. It is difficult to conceive what act would
HEPBURN v. GRISWOLD. 135
take private property without process of law if such an act would
not.
We are obliged to conclude that an act making mere promises
to pay dollars a legal tender in payment of debts previously con-
tracted, is not a means appropriate, plainly adapted, really cal-
culated to carry into effect any express power vested in Congress;
that such an act is inconsistent with the spirit of the Constitution;
and that it is prohibited by the Constitution.
It is not surprising that amid the tumult of the late civil war,
and under the influence of apprehensions for the safety of the Re-
public almost universal, different views, never before entertained
by American statesmen or jurists, were adopted by many. The
time was not favorable to considerate reflection upon the constitu-
tional limits of legislative or executive authority. If power was
assumed from patriotic motives, the assumption found ready justi-
fication in patriotic hearts. Many who doubted yielded their
doubts; many who did not doubt were silent. Some who were
strongly averse to making government notes a legal tender felt
themselves constrained to acquiesce in the views of the advocates
cf the measure. Not a few who then insisted upon its necessity, or
acquiesced in that view, have, since the return of peace, and under
the influence of the calmer time, reconsidered their conclusions,
and now concur in those which we have just announced. These
conclusions seem to us to be fully sanctioned by the letter and
spirit of the Constitution.
We are obliged, therefore, to hold that the defendant in error
was not bound to receive from the plaintiffs the currency ten-
dered to him in payment of their note, made before the passage
of the act of February 25, 1862. It follows that the judgment of
the Court of Appeals of Kentucky must be affirmed.
It is proper to say that Mr. Justice Grier, who was a member of
the court when this cause was decided in conference, 1 and when
this opinion was directed to be read, 2 stated his judgment to be
that the legal tender clause, properly construed, has no applica-
tion to debts contracted prior to its enactment; but that upon
the construction given to the act by the other judges he con-
curred in the opinion that the clause, so far as it makes United
States notes a legal tender for such debts, is not warranted by the
Constitution. Judgment affirmed.
[MR. JUSTICE MILLER delivered a dissenting opinion, in which
JUSTICES SWAYNE and DAVIS concurred.]
i November 27, 1869. 2 January 29, 1870.
136 CASES ON CONSTITUTIONAL LAW.
LEGAL TENDER CASES.
KNOX v. LEE. PAEKER v. DAVIS.
12 Wallace, 457. Decided 1871.
These were two suits; the first a writ of error to the Circuit
Court for the Western District of Texas, the second an appeal
from a decree in equity in the Supreme Judicial Court of Massa-
chusetts. . . .
MR. JUSTICE STRONG delivered the opinion of the court.
The controlling questions in these cases are the following: Are
the acts of Congress, known as* the legal tender acts, constitutional
when applied to contracts made before their passage; and, sec-
ondly, are they valid as applicable to debts contracted since their
enactment? These questions have been elaborately argued, and
they have received from the court that consideration which their
great importance demands. It would be difficult to overestimate
the consequences which must follow our decision. They will affect
the entire business of the country, and take hold of the possible
continued existence of the government. If it be held by this court
that Congress has no constitutional power, under any circum-
stances, or in any emergency, to make treasury notes a legal tender
for the payment of all debts (a power confessedly possessed by
every independent sovereignty other than the United States), the
government is without those means of self-preservation which, all
must admit, may, in certain contingencies, become indispensable,
even if they were not when the acts of Congress now called in
question were enacted. It is also clear that if we hold the acts
invalid as applicable to debts incurred, or transactions which have
taken place since their enactment, our decision must cause,
throughout the country, great business derangement, widespread
distress, and the rankest injustice. The debts which have been
contracted since February 25th, 1862, constitute, doubtless, by
far the greatest portion of the existing indebtedness of the coun-
try. They have been contracted in view of the acts of Congress
declaring treasury notes a legal tender, and in reliance upon that
declaration. Men have bought and sold, borrowed and lent, and
assumed every variety of obligations contemplating that payment
might be made with such notes. Indeed, legal tender treasury
notes have become the universal measures of value. If now, by
our decision, it be established that these debts and obligations can
LEGAL TENDER CASES. 137
be discharged only by gold coin; if, contrary to the expectation
of all parties to these contracts, legal tender notes are rendered
unavailable, the government has become an instrument of the
grossest injustice; all debtors are loaded with an obligation it was
never contemplated they should assume; a large percentage is
added to every debt, and such must become the demand for gold
to satisfy contracts, that ruinous sacrifices, general distress, and
bankruptcy may be expected. These consequences are too obvious
to admit of question. And there is no well-founded distinction
to be made between the constitutional validity of an act of Con-
gress declaring treasury notes a legal tender for the payment of
debts contracted after its passage and that of an act making them
a legal tender for the discharge of all debts, as well those incurred
before as those made after its enactment. There may be a differ-
ence in the effects produced by the acts, and in the hardship of
their operation, but in both cases the fundamental question, that
which tests the validity of the legislation, is, can Congress consti-
tutionally give to treasury notes the character and qualities of
money? Can such notes be constituted a legitimate circulating
medium, having a defined legal value? If they can, then such
notes must be available to fulfill all contracts (not expressly ex-
cepted) solvable in money, without reference to the time when the
contracts were made. Hence it is not strange that those who hold
the legal tender acts unconstitutional when applied to contracts
made before February, 1862, find themselves compelled also to
hold that the acts are invalid as to debts created after that time,
and to hold that both classes of debts alike can be discharged only
by gold and silver coin.
The consequences of which we have spoken, serious as they are,
must be accepted, if there is a clear incompatibility between the
Constitution and the legal tender acts. But we are unwilling to
precipitate them upon the country unless such an incompatibility
plainly appears. A decent respect for a co-ordinate branch of the
government demands that the judiciary should presume, until the
contrary is clearly shown, that there has been no transgression of
power by Congress all the members of which act under the obli-
gation of an oath of fidelity to the "Constitution. Such has always
been the rule. In Commonwealth v. Smith, 1 the language of the
court was: "It must be remembered that, for weighty reasons, it
has been assumed as a principle, in construing constitutions, by
the Supreme Court of the United States, by this court, and by
i 4 BInney, 123.
138 CASES ON CONSTITUTIONAL LAW.
every other court of reputation in the United States, that an act
of the legislature is not to be declared void unless the violation of
the Constitution is so manifest as to leave no room for reasonable
doubt;" and, in Fletcher v. Peck, 2 Chief Justice Marshall said,
"It is not on slight implication and vague conjecture that the
legislature is to be pronounced to have transcended its powers and
its acts to be considered void. The opposition between the Con-
stitution and the law should be such that the judge feels a clear
and strong conviction of their incompatibility with each other."
It is incumbent, therefore, upon those who affirm the unconstitu-
tionally of an act of Congress to show clearly that it is in viola-
tion of the provisions of the Constitution. It is not sufficient for
them that they succeed in raising a doubt.
Nor can it be questioned that, when investigating the nature
and extent of the powers conferred by the Constitution upon Con-
gress, it is indispensable to keep in view the objects for which
thoee powers were granted. This is a universal rule of construc-
tion applied alike to statutes, wills, contracts, and constitutions.
If the general purpose of the instrument is ascertained, the lan-
guage of its provisions must be construed with reference to that
purpose, and so as to subserve it. In no other way can the intent
of the framers of the instrument be discovered. And there are
more urgent reasons for looking to the ultimate purpose in exam-
ining the powers conferred by a constitution than there are in
construing a statute, a will, or a contract. We do not expect to
find in a constitution minute details. It is necessarily brief and
comprehensive. It prescribes outlines, leaving the filling up to be
deduced from the outlines. In Martin v. Hunter, 3 it was said,
"The Constitution unavoidably deals in general language. It did
not suit the purpose of the people in framing this great charter of
our liberties to provide for minute specifications of its powers, or
to declare the means by which those powers should be carried into
execution." And with singular clearness it was said by Chief Jus-
tice Marshall, in McCulloch v. The State of Maryland, 4 "A con-
stitution, to contain an accurate detail of all subdivisions of which
its great powers will admit, and of all the means by which it
may be carried into execution, would partake of the prolixity
of a political code, and would scarcely be embraced by the human
mind. It would probably never be understood by the public. Its
nature, therefore, requires that only its great outlines should be
2 6 Cranch, 87. * 4 Id., 405.
3 1 Wheaton, 326.
LEGAL TENDER CASES. 139
marked, its important objects designated, and the minor ingre-
dients which compose those objects be deduced from the nature of
the objects themselves." If these are correct principles, if they
are proper views of the manner in which the Constitution is to be
understood, the powers conferred upon Congress must be regarded
as related to each other, and all means for a common end. Each
is but a part of a system, a constituent of one whole. No single
power is the ultimate end for which the Constitution was adopted.
It may, in a very proper sense, be treated as a means for the ac-
complishment of a subordinate object, but that object is itself a
means designed for an ulterior purpose. Thus the power to levy
and collect taxes, to coin money and regulate its value, to raise
and support armies, or to provide for and maintain a navy, are
instruments for the paramount object, which was to establish a
government, sovereign within its sphere, with capability of self-
preservation, thereby forming a union more perfect than that
which existed under the old Confederacy.
The same may be asserted also of all the non-enumerated
powers included in the authority expressly given "to make all
laws which shall be necessary and proper for carrying into execu-
tion the specified powers vested in Congress, and all other powers
vested by the Constitution in the government of the United States,
or in any department or officer thereof." It is impossible to know
what those non-enumerated powers are, and what is their nature
and extent, without considering the purposes they were intended to
subserve. Those purposes, it must be noted, reach beyond the
mere execution of all powers definitely intrusted to Congress and
mentioned in detail. They embrace the execution of all other
powers vested by the Constitution in the government of the United
States, or in any department or officer thereof. It certainly was
intended to confer upon the government the power of self-preser-
vation. Said Chief Justice Marshall, in Cohens v. The Bank of
Virginia, 5 "America has chosen to be, in many respects and to
many purposes, a nation, and for all these purposes her govern-
ment is complete; for all these objects it is supreme. It can then,
in effecting these objects, legitimately control all individuals or
governments within the American territory." He added, in the
same case, "A constitution is framed for ages to come, and is de-
signed to approach immortality as near as mortality can approach
it. Its course cannot always be tranquil. It is exposed to storms
and tempests, and its framers must be unwise statesmen indeed, if
5 6 Wheaton, 414.
140 CASES ON CONSTITUTIONAL LAW.
they have not provided it, as far as its nature will permit, with
the means of self-preservation from the perils it is sure to en-
counter." That would appear, then, to he a most unreasonable
construction of the Constitution which denies to the government
/ created by it, the right to employ freely every means, not pro-
hibited, necessary for its preservation, and for the fulfilment of
j its acknowledged duties. Such a right, we hold, was given by the
last clause of the eighth section of its first article. The means
or instrumentalities referred to in that clause, and authorized, are
not enumerated or defined. In the nature of things enumeration
and specification were impossible. But they were left to the dis-
cretion of Congress, subject only to the restrictions that they be
not prohibited, and be necessary and proper for carrying into exe-
tion the enumerated powers given to Congress, and all other
powers vested in the government of the United States, or in any
department or officer thereof.
And here it is to be observed it is not indispensable to the
existence of any power claimed for the Federal government that
it can be found specified in the words of the Constitution, or
clearly and directly traceable to some one of the specified powers.
Its existence may be deduced fairly from more than one of the sub-
stantive powers expressly defined, or from them all combined. It
is allowable to group together any number of them and infer from
them all that the power claimed has been conferred. Such a
treatment of the Constitution is recognized by its own provisions.
This is well illustrated in its language respecting the writ of
habeas corpus. The power to suspend the privilege of that writ
is not expressly given, nor can it be deduced from any one of the
particularized grants of power. Yet it is provided that the privi-
leges of the writ shall not be suspended except in certain defined
contingencies. This is no express grant of power. It is a restric-
tion. But it shows irresistibly that somewhere in the Constitution
power to suspend the privilege of the writ was granted, either by
some one or more of the specifications of power, or by them all
combined. And, that important powers were understood by the
people who adopted the Constitution to have been created by it,
powers not enumerated, and not included incidentally in any one
of those enumerated, is shown by the amendments. The -first ten
of these were suggested in the conventions of the States, and pro-
posed at the first session of the first Congress, before any com-
plaint was made of a disposition to assume doubtful powers. The
preamble to the resolution submitting them for adoption recited
that the "conventions of a number of the States had, at the time
LEGAL TENDER CASES. 141
of their adopting the Constitution, expressed a desire, in order to
prevent misconstruction or abuse of its powers, that further de-
claratory and restrictive clauses should be added." This was the
origin of the amendments, and they are significant. They tend
plainly to show that, in the judgment of those who adopted the
Constitution, there were powers created by it, neither expressly
specified nor reducible from any one specified power, or ancillary
to it alone, but which grew out of the aggregate of powers con-
ferred upon the government, or out of the sovereignty instituted.
Most of these amendments are denials of power which had not
been expressly granted, and which cannot be said to have been
necessary and proper for carrying into execution any other powers.
Such, for example, is the prohibition of any laws respecting the
establishment of religion, prohibiting the free exercise thereof, or
abridging the freedom of speech or of the press.
And it is of importance to observe that Congress has often ex-
ercised, without question, powers that are not expressly given nor
ancillary to any single enumerated power. Powers thus exercised
are what are called by Judge Story, in his Commentaries on the
Constitution, resulting powers, arising from the aggregate powers
of the government. He instances the right to sue and make con-
tracts. Many others might be given. The oath required by law
from officers of the government is one. So is building a capitol
or a presidential mansion, and so also is the penal code. This last
is worthy of brief notice. Congress is expressly authorized "to
provide for the punishment of counterfeiting the securities and
current coin of the United States, and to define and punish pira-
cies and felonies committed on the high seas and offences against
the laws of nations." It is also empowered to declare the pun-
ishment of treason, and provision is made for impeachments.
This is the extent of power to punish crime expressly conferred.
It might be argued that the expression of these limited powers
implies an exclusion of all other subjects of criminal legislation.
Such is the argument in the present cases. It is said because
Congress is authorized to coin money and regulate its value, it
cannot declare anything other than gold and silver to be money,
or make it a legal tender. Yet Congress, by the act of April 30,
1790, entitled "An act more effectually to provide for the punish-
ment of certain crimes against the United States," and the sup-
plementary act of March 3, 1825, defined and provided for the
punishment of a large class of crimes other than those mentioned
in the Constitution, and some of the punishments prescribed are
manifestly not in aid of any single substantive power. No one
142 CASES ON CONSTITUTIONAL LAW.
doubts that this was rightfully done, and the power thus exercised
has been affirmed by this court in United States v. Marigold.
This case shows that a power may exist as an aid to the execution
of an express power, or an aggregate of such powers, though there
is another express power given relating in part to the same subject
but less extensive. Another illustration of this may be found in
connection with the provisions respecting a census. The Consti-
tution orders an enumeration of free persons in the different
States every ten years. The direction extends no further. Yet
Congress has repeatedly directed an enumeration not only of free
persons in the States, but of free persons in the Territories, and
not only an enumeration of persons but the collection of statistics
respecting age, sex, and production. Who questions the power to
do this?
Indeed, the whole history of the government and of congres-
sional legislation has exhibited the use of a very wide discretion,
even in times of peace and in the absence of any trying emergency,
in the selection of the necessary and proper means to carry into
effect the great objects for which the government was framed,
and this discretion has generally been unquestioned, or, if ques-
tioned, sanctioned by this court. This is true not only when an
attempt has been made to execute a single power specifically given,
but equally true when the means adopted have been appropriate
to the execution, not of a single authority, but of all the powers
created by the Constitution. Under the power to establish post-
offices and post-roads Congress has provided for carrying the mails,
punishing theft of letters and mail robberies, and even for trans-
porting the mails to foreign countries. Under the power to regu-
late commerce, provision has been made by law for the improve-
ment of harbors, the establishment of observatories, the erection
of lighthouses, break-waters, and buoys, the registry, enrollment,
and construction of ships, and a code has been enacted for the
government of seamen. Under the same power and other powers
over the revenue and the currency of the country, for the con-
venience of the treasury and internal commerce, a corporation
known as the United States Bank was early created. To its capital
the government subscribed one-fifth of its stock. But the corpora-
tion was a private one, doing business for its own profit. Its in-
corporation was a constitutional exercise of congressional power
for no other reason than that it was deemed to be a convenient
instrument or means for accomplishing one or more of the ends
9 Howard, 560.
LEGAL TENDER CASES. 143
for which the government was established, or, in the language of
the first article, already quoted, "necessary and proper" for carry-
ing into execution some or all the powers vested in the govern-
ment. Clearly this necessity, if any existed, was not a direct and
obvious one. Yet this court, in McCulloch v. Maryland, 7 unan-
imously ruled that in authorizing the bank, Congress had not
transcended its powers. So debts due to the United States have
been declared by acts of Congress entitled to priority of payment
over debts due to other creditors, and this court has held such acts
warranted by the Constitution. 8
This is enough to show how, from the earliest period of our ex-
istence as a nation, the powers conferred by the Constitution have
been construed by Congress and by this court whenever such action
by Congress has been called in question. Happily the true mean-
ing of the clause authorizing the enactment of all laws necessary
and proper for carrying into execution the express powers con-
ferred upon Congress, and all other powers vested in the govern-
ment of the United States, or in any of its departments or officers,
has long since been settled. In Fisher v. Blight, 9 this court, speak-
ing by Chief Justice Marshall, said that in construing it "it would
be incorrect and would produce endless difficulties if the opinion
should be maintained that no law was authorized which was not
indispensably necessary to give effect to a specified power. Where
various systems might be adopted for that purpose it might be
said with respect to each that it was not necessary because the end
might be obtained by other means." "Congress," said this court,
"must possess the choice of means, and must be empowered to use
any means which are in fact conducive to the exercise of a power
granted by the Constitution. The government is to pay the debt
of the Union, and must be authorized to use the means which
appear to itself most eligible to effect that object. It has, conse-
quently, a right to make remittances by bills or otherwise, and to
take those precautions which will render the transaction safe." It
was in this case, as we have already remarked, that a law giving
priority to debts due to the United States was ruled to be consti-
tutional for the reason that it appeared to Congress to be an eligi-
ble means to enable the government to pay the debts of the Union
It was, however, in McCulloch v. Maryland that the fullest
consideration was given to this clause of the Constitution granting
auxiliary powers, and a construction adopted that has ever since
T 4 Wheaton, 416. o 2 Cranch, 358.
s Fisher v. Blight, 2 Cranch, 358.
144 CASES ON CONSTITUTIONAL LAW.
been accepted as determining its true meaning. . . . [Here
follows a consideration of McCulloch v. Maryland.] It is hardly
necessary to say that these principles are received with universal
assent. Even in Hepburn v. Griswold, 10 both the majority and
minority of the court concurred in accepting the doctrines of Mc-
Culloch v. Maryland as sound expositions of the Constitution,
though disagreeing in their application.
With these rules of constitutional construction before us, settled
at an early period in the history of the government, hitherto uni-
versally accepted, and not even now doubted, we have a safe guide
to a right decision of the questions before us. Before we can hold
the legal tender acts unconstitutional, we must be convinced they
were not appropriate means, or means conducive to the execution
of any or all of the powers of Congress, or of the government, not
appropriate in any plain degree (for we are not judges of the de-
gree of appropriateness), or we must hold that they were prohib-
ited. This brings us to the inquiry whether they were, when en-
acted, appropriate instrumentalities for carrying into effect, or
executing any of the known powers of Congress, or of any depart-
ment of the government. Plainly to this inquiry, a consideration
of the time when they were enacted, and of the circumstances in
which the government then stood, is important. It is not to be
denied that acts may be adapted to the exercise of lawful power,
and appropriate to it, in seasons of exigency, which would be inap-
propriate at other times.
We do not propose to dilate at length upon the circumstances
in which the country was placed, when Congress attempted to
make treasury notes a legal tender. They are of too recent oc-
currence to justify enlarged description. Suffice it to say that a
civil war was then raging which seriously threatened the over-
throw of the government and the destruction of the Constitution
itself. It demanded the equipment and support of large armies
and navies, and the employment of money to an extent beyond
the capacity of all ordinary sources of supply. Meanwhile the
public treasury was nearly empty, and the credit of the govern-
ment, if not stretched to its utmost tension, had become nearly
exhausted. Moneyed institutions had advanced largely of their
means, and more could not be expected of them. They had been
compelled to suspend specie payments. Taxation was inadequate
to pay even the interest on the debt already incurred, and it was
impossible to await the income of additional taxes. The necessity
108 Wallace, 603.
LEGAL TENDER CASES. 145
was immediate and pressing. The army was unpaid. There was
then due to the soldiers in the field nearly a score of millions of
dollars. The requisitions from the War and Navy Departments
for supplies exceeded fifty millions, and the current expenditure
was over one million per day. The entire amount of coin in the
country, including that in private hands, as well as that in bank-
ing institutions, was insufficient to supply the need of the gov-
ernment three months, had it all been poured into the treasury.
Foreign credit we had none. We say nothing of the overhanging
paralysis of trade, and of business generally, which threatened loss
of confidence in the ability of the government to maintain its con-
tinued existence, and therewith the complete destruction of all re-
maining national credit.
It was at such a time and in such circumstances that Congress
was called upon to devise means for maintaining the army and
navy, for securing the large supplies of money needed, and, indeed,
for the preservation of the government created by the Constitu-
tion. It was at such a time and in such an emergency that the
legal tender acts were passed. Now, if it were certain that noth-
ing else would have supplied the absolute necessities of the treas-
ury, that nothing else would have enabled the government to
maintain its armies and navy, that nothing else would have saved
the government and the Constitution from destruction, while the
legal tender acts would, could any one be bold enough to assert
that Congress transgressed its powers? Or if these enactments
did work these results, can it be maintained now that they were
not for a legitimate end, or "appropriate and adapted to that end,"
in the language of Chief Justice Marshall? That they did work
such results is not to be doubted. Something revived the droop-
ing faith of the people; something brought immediately to the
government's aid the resources of the nation, and something en-
abled the successful prosecution of the war, and the preservation
of the national life. What was it, if not the legal tender enact-
ments?
But if it be conceded that some other means might have been
chosen for the accomplishment of these legitimate and necessary
ends, the concession does not weaken the argument. It is urged
now, after the lapse of nine years, and when the emergency has
passed, that treasury notes without the legal tender clause might
have been issued and that the necessities of the government might
thus have been supplied. Hence it is inferred there was no necessity
for giving to the notes issued the capability of paying private
debts. At best this is mere conjecture. But admitting it to be
10
146 CASES ON CONSTITUTIONAL LAW.
true, what does it prove? Nothing more than that Congress had
the choice of means for a legitimate end, each appropriate, and
adapted to that end, though, perhaps, in different degrees. What
then? Can this court say that it ought to have adopted one rather
than the other? Is it our province to decide that the means se-
lected were beyond the constitutional power of Congress, because
we may think that other means to the same ends would have been
more appropriate and equally efficient? That would be to assume
legislative power, and to disregard the accepted rules for constru-
ing the Constitution. The degree of the necessity for any con-
gressional enactment, or the relative degree of its appropriate-
ness, if it have any appropriateness, is for consideration in Con-
gress, not here. Said Chief Justice Marshall, inMcCulloch v.
Maryland, as already stated, "When the law is not prohibited, and
is really calculated to effect any of the objects intrusted to the
government, to undertake here to inquire into the degree of its
necessity, would be to pass the line which circumscribes the judi-
cial department, and to tread on legislative ground."
It is plain to our view, however, that none of those measures
which it is now conjectured might have been substituted for the
legal tender acts could have met the exigencies of the case, at the
time when those acts were passed. We have said that the credit
of the government had been tried to its utmost endurance. Every
new issue of notes which had nothing more to rest upon than
government credit, must have paralyzed it more and more, and
rendered it increasingly difficult to keep the army in the field, or
the navy afloat. It is an historical fact that many persons and in-
stitutions refused to receive and pay those notes that had been
issued, and even the head of the treasury represented to Congress
the necessity of making the new issues legal tenders, or rather,
declared it impossible to avoid the necessity. The vast body of
men in the military service was composed of citizens who had left
their farms, their work-shops, and their business, with families
and debts to be provided for. The government could not pay
them with ordinary treasury notes, nor could they discharge their
debts with such a currency. Something more was needed, some-
thing that had all the uses of money. And as no one could be
compelled to take common treasury notes in payment of debts,
and as the prospect of ultimate redemption was remote and con-
tingent, it is not too much to say that they must have depreciated
in the market long before the war closed, as did the currency of
the Confederate States. Making the notes legal tenders gave them
LEGAL TENDER CASES. 147
a new use, and it needs no argument to show that the value of
things is in proportion to the uses to which they may be applied.
It may be conceded that Congress is not authorized to enact laws
in furtherance even of a legitimate end, merely because they are
useful, or because they make the government stronger. There must
be some relation between the means and the end; some adapted-
ness or appropriateness of the laws to carry into execution the
powers created by the Constitution. But when a statute has
proved effective in the execution of powers confessedly existing,
it is not too much to say that it must have had some appro-
priateness to the execution of those powers. The rules of con-
struction heretofore adopted, do not demand that the relation-
ship between the means and the end shall be direct and imme-
diate. Illustrations of this may be found in several of the cases
above cited. The charter of a bank of the United States, the prior-
ity given to debts due the government over private debts, and the
exemption of Federal loans from liability to State taxation, are
only a few of the many which might be given. The case of
Veazie Bank v. Fenno, 1 presents a suggestive illustration. There
a tax of ten per cent, on State bank notes in circulation was held
constitutional, not merely because it was a means of raising reve-
nue, but as an instrument to put out of existence such a circula-
tion in competition with notes issued by the government. There,
this court, speaking through the Chief Justice, avowed that it is
the constitutional right of Congress to provide a currency for the
whole country; that this might be done by coin, or United States
notes, or notes of National banks; and that it cannot be ques-
tioned Congress may constitutionally secure the benefit of such
a currency to the people by appropriate legislation. It was said
there can be no question of the power of this government to emit
bills of credit; to make them receivable in payment of debts to
itself; to fit them for use by those who see fit to use them in all
the transactions of commerce; to make them a currency uniform
in value and description, and convenient and useful for circula-
tion. Here the substantive power to tax was allowed to be em-
ployed for improving the currency. It is not easy to see why,
if State bank notes can be taxed out of existence for the purposes
of indirectly making United States notes more convenient and
useful for commercial purposes, the same end may not be secured
directly by making them a legal tender.
Concluding, then, that the provision which made^treasury notes
i 8 Wallace, 533.
148 CASES ON CONSTITUTIONAL LAW.
a legal tender for the payment of all debts other than those ex-
pressly excepted, was not an inappropriate means for carrying into
execution the legitimate powers of the government, we proceed
to inquire whether it was forbidden by the letter or spirit of the
Constitution. It is not claimed that any express prohibition
exists, but it is insisted that the spirit of the Constitution was
violated by the enactment. Here those who assert the unconsti-
tutionally of the acts mainly rest their argument. They claim
that the clause which conferred upon Congress power "to coin
money, regulate the value thereof, and of foreign coin," contains
an implication that nothing but that which is the subject of coin-
age, nothing but the precious metals can ever be declared by law
to be money, or to have the uses of money. If by this is meant
that because certain powers over the currency are expressly given
to Congress, all other powers relating to the same subject are
impliedly forbidden, we need only remark that such is not the
manner in which the Constitution has always been construed. On
the contrary it has been ruled that power over a particular subject
may be exercised as auxiliary to an express power, though there
is another express power relating to the same subject, less com-
prehensive. 2 There an express power to punish a certain class
of crimes (the only direct reference to criminal legislation con-
tained in the Constitution), was not regarded as an objection to
deducing authority to punish other crimes from another sub-
stantive and defined grant of power. There are other decisions
, to the same effect. To assert, then, that the clause enabling Con-
gress to coin money and regulate its value tacitly implies a denial
of all other power over the currency of the nation, is an attempt
to introduce a new rule of construction against the solemn deci-
sions of this court. So far from its containing a lurking prohi-
bition, many have thought it was intended to confer upon Con-
gress that general power over the currency which has always been
an acknowledged attribute of sovereignty in every other civilized
nation than our own, especially when considered in connection
with the other clause which denies to the States the power to coin
money, emit bills of credit, or make anything but gold and silver
coin a tender in payment of debts. We do not assert this now,
but there are some considerations touching these clauses which
tend to show that if any implications are to be deduced from
them, they are of an enlarging rather than a restraining char-
acter. The Constitution was intended to frame a government as
2 United States v. Marigold, 9 Howard, 560.
LEGAL TENDER CASES. 149
distinguished from a league or compact, a government supreme
in some particulars over States and people. It was designed to
provide the same currency, having a uniform legal value in all
the States. It was for this reason the power to coin money and
regulate its value was conferred upon the Federal government,
while the same power as well as the power to emit bills of credit
was withdrawn from the States. The States can no longer de-
clare what shall be money, or regulate its value. Whatever power
there is over the currency is vested in Congress. If the power
to declare what is money is not in Congress, it is annihilated. This
may indeed have been intended. Some powers that usually belong
to sovereignties were extinguished, but their extinguishment was
not left to inference. In most cases, if not in all, when it was in-
tended that governmental powers, commonly acknowledged as
such, should cease to exist, both in the States and in the Federal
government, it was expressly denied to both, as well TO the
United States as to the individual States. And generally, when
one of such powers was expressly denied to the States only, it
was for the purpose of rendering the Federal power more com-
plete and exclusive. . Why, then, it may be asked, if the design,
was to prohibit to the new government, as well as to the States,
that general power over the currency which the States had when
the Constitution was framed, was such denial not expressly ex-
tended" to the new government, as it was to the States? In view
of this it might be argued with much force that when it is con-
sidered in what brief and comprehensive terms the Constitution
speaks, how sensible its framers must have been that emergencies
might arise when the precious metals (then more scarce than now)
might prove inadequate to the necessities of the government and
the demands of the people when it is remembered that paper
money was almost exclusively in use in the States as the medium
of exchange, and when the great evil sought to be remedied was
the want of uniformity in the current value of money, it might
be argued, we say, that the gift of power to coin money and reg-
ulate the value thereof, was understood as conveying general power
over the currency, the power which had belonged to the States,
and which they surrendered. Such a construction, it might be
said, would be in close analogy to the mode of construing other
substantive powers granted to Congress. They have never been
construed literally, and the government could not exist if they
were. Thus the power to carry on war is conferred by the power
to "declare war." The whole system of the transportation of the
mails is built upon the power to establish post-offices and post-
150 CASES ON CONSTITUTIONAL LAW.
roads. The power to regulate commerce has also been extended
far beyond the letter of the grant. Even the advocates of a strict
literal construction of the phrase, "to coin money and regulate the
value thereof," while insisting that it defines the material to be
coined as metal, are compelled to concede to Congress large dis-
cretion in all other particulars. The Constitution does not ordain
what metals may be coined, or prescribe that the legal value of
the metals, when coined, shall correspond at all with their intrinsic-
value in the market. Nor does it even affirm that Congress may
declare anything to be a legal tender for the payment of debts.
Confessedly the power to regulate the value of money coined, and
of foreign coins, is not exhausted by the first regulation. More
than once in our history has the regulation been changed withj-
out any denial of the power of Congress to change it, and it seems
to have been left to Congress to determine alike what metal shall
be coined, its purity, and how far its statutory value, as money,
shall corespond, from time to time, with the market value of the
same metal as bullion. How then can the grant of a power to coin
money and regulate its value, made in terms so liberal and unre-
strained, coupled also with a denial to the States of all power
over the currency, be regarded as an implied prohibition to Con-
gress against declaring treasury notes a legal tender, if such declara-
tion is appropriate, and adapted to carrying into execution the ad-
mitted powers of the government?
We do not, however, rest our assertion of the power of Congress
to enact legal tender laws upon this grant. We assert only that
the grant can, in no just sense, be regarded as containing an
implied prohibition against their enactment, and that, if it raises
any implications, they are of complete power over the currency,
rather than restraining.
We come next to the argument much used, and, indeed, the
main reliance of those who assert the unconstitutionality of the
legal tender acts. It is that they are prohibited by the spirit of
the Constitution because they indirectly impair the obligation of
contracts. The argument, of course, relates only to those con-
tracts which were made before February, 1862, when the first
act was passed, and it has no bearing upon the question whether
the acts are valid when applied to contracts made after their pas-
sage. The argument assumes two things, first, that the acts do,
in effect, impair the obligation of contracts, and second, that
Congress is prohibited from taking any action which may indi-
rectly have that effect. Neither of these assumptions can be ac-
cepted. It is true, that, under the acts, a debtor, who became
LEGAL TENDER CASES. 151
such, before they were passed, may discharge his debt with the
notes authorized by them, and the creditor is compellable to re-
ceive such notes in discharge of his claim. But whether the obli-
gation of the contract is thereby weakened can be determined
only after considering what was the contract obligation. It was
not a duty to pay gold or silver, or the kind of money recognized
by law at the time when the contract was made, nor was it a duty
to pay money of equal intrinsic value in the market. (We speak
now of contracts to pay money generally, not contracts to pay some
specifically denned species of money.) The expectation of the cred-
itor and the anticipation of the debtor may have been that the
contract would be discharged by the payment of coined metals,
but neither the expectation of one party to the contract respecting
its fruits, nor the anticipation of the other constitutes its obliga-
tion. There is a well-recognized distinction between the expecta-
tion of the parties to a contract and the duty imposed by it. 1
Were it not so the expectation of results would be always equiva-
lent to a binding engagement that they should follow. But the
obligation of a contract to pay money is to pay that which the
law shall recognize as money when the payment is to be made.
If there is anything settled by decision it is this, and we do not
understand it to be controverted. 2 No one ever doubted that
a debt of one thousand dollars, contracted before 1834, could be
paid by one hundred eagles coined after that year, though they
contained no more gold than ninety-four eagles such as were coined
when the contract was made, and this, not because of the intrinsic
value of the coin, but because of its legal value. The eagles
coined after 1834 were not money until they were authorized by
law, and had they been coined before, without a law fixing their
legal value, they could no more have paid a debt than uncoined
bullion, or cotton, or wheat. Every contract for the payment of
money, simply, is necessarily subject to the constitutional power
of the government over the currency, whatever that power may
be, and the obligation of the parties is, therefore, assumed with
reference to that power. Nor is this singular. A covenant for
quiet enjoyment is not broken, nor is its obligation impaired b}~
the government's taking the land granted in virtue of its right of
eminent domain. The expectation of the covenantee may be dis-
appointed. He may not enjoy all he anticipated, but the grant
i Apsden v. Austin, 5 Adolphus 2 Davies, 28; Harrington v. Pot-
& Ellis, N. S., 671; Dunn v. Sayles, ter, Dyer, 81, b. fol. 67; Faw v.
Ib., 685; Coffin v.' Landis, 10 Marsteller, 2 Cranch 29.
Wright, 426.
152 CASES ON CONSTITUTIONAL LAW.
was made and the covenant undertaken in subordination to the
paramount right of the government. 3 We have been asked whether
Congress can declare that a contract to deliver a quantity of grain
may be satisfied by the tender of a less quantity. Undoubtedly
not. But this is a false analogy. There is a wide distinction be-
tween a tender of quantities, or of specific articles, and a tender
of legal values. Contracts for the delivery of specific articles
belong exclusively to the domain of State legislation, while con-
tracts for the payment of money are subject to the authority of
Congress, at least so far as relates to the means of payment. They
are engagements to pay with lawful money of the United States,
and Congress is empowered to regulate that money. It cannot,
therefore, be maintained that the legal tender acts impaired the
obligation of contracts.
Nor can it be truly asserted that Congress may not, by its action,
indirectly impair the obligation of contracts, if by the expression
be meant rendering contracts fruitless, or partially fruitless. Di-
rectly it may, confessedly, by passing a bankrupt act, embracing
past as well as future transactions. This is obliterating contracts
entirely. So it may relieve parties from their aparent obliga-
tions indirectly in a multitude of ways. It may declare war, or, even
in peace, pass non-intercourse acts or direct an embargo. All such
measures may, and must operate seriously upon existing contracts,
and may not merely hinder, but relieve the parties to such con-
tracts entirely from performance. It is, then, clear that the powers
of Congress may be exerted, though the effect of such exertion
may be in one case to annul, and in other cases >to impair the
obligation of contracts. And it is no sufficient answer to this
to say it is true only when the powers exerted were expressly
granted. There is no ground for any such distinction. It has no
warrant in the Constitution, or in any of the decisions of this
court. We are accustomed to speak for mere convenience of the
express and implied powers conferred upon Congress. But in fact
the auxiliary powers, those necessary and appropriate to the exe-
cution of other powers singly described, are as expressly given as
is the power to declare war, or to establish uniform laws on the
subject of bankruptcy. They are not catalogued, no list of them
is made, but they are grouped in the last clause of section eight
of the first article, and granted in the same words in which all
other powers are granted to Congress. And this court has recog-
nized no such distinction as is now attempted. An embargo sus-
3 Dobbins v. Brown, 2 Jones (Pennsylvania), 75; Workman v.
Mifflin, 6 Casey, 362.
LEGAL TENDER CASES. 153
pends many contracts and renders performance of others impos-
sible, yet the power to enforce it has been declared constitutional. 4
The power to enact a law directing an embargo is one of the aux-
iliary powers, existing only because appropriate in time of peace
to regulate commerce, or appropriate to carrying on war. Though
not conferred as a substantive power, it has not been thought
to be in conflict with the Constitution, because it impairs indirectly
the obligation of contracts. That discovery calls for a new read-
ing of the Constitution.
If, then, the legal tender acts were justly chargeable with im-
pairing contract obligations, they would not, for that reason, be
forbidden, unless a different rule is to be applied to them from
that which has hitherto prevailed in the construction of other
powers granted by the fundamental law. But, as already inti-
mated, the objection misapprehends the nature and extent of the
contract obligation spoken of in the Constitution. As in a state
of civil society property of a citizen or subject is ownership, sub-
ject to the lawful demands of the sovereign, so contracts must be
understood as made in reference to the possible exercise of the
rightful authority of the government, and no obligation of a con-
tract can extend to the defeat of legitimate government authority.
Closely allied to the objection we have just been considering
is the argument pressed upon us that the legal tender acts were
prohibited by the spirit of the fifth amendment, which forbids
taking private property for public use without just compensa-
tion or due process of law. That provision has always been under-
stood as referring only to a direct appropriation, and not to con-
sequential injuries resulting from the exercise of lawful power.
It has never been supposed to have any bearing upon, or to in-
hibit laws that indirectly work harm and loss to individuals. A
new tariff, an embargo, a draft, or a war may inevitably bring upon
individuals great losses; may, indeed, render valuable property
almost valueless. They may destroy the worth of contracts. But
who ever supposed that, because of this, a tariff could not be
changed, or a non-intercourse act, or an embargo be enacted, or a
war be declared? By the act of June 28, 1834, a new regula-
tion of the weight and value of gold coin was adopted, and about
six per cent, was taken from the weight of each dollar. The effect
of this was that all creditors were subjected to a corresponding
loss. The debts then due became solvable with six per cent, less
gold than was required to pay them before. The result was thus
4 Gibbons v. Ogden, 9 Wheaton, 1.
154 CASES ON CONSTITUTIONAL LAW.
precisely what it is contended the legal tender acts worked. But
was it ever imagined this was taking private property without com-
pensation or without due process of law? Was the idea ever ad-
vanced that the new regulation of gold coin was against the spirit
of the fifth amendment? And has any one in good faith avowed
his belief that even a law debasing the current coin, by increasing
the alloy, would be taking private property? It might be im-
politic and unjust, but could its constitutionality be doubted?
Other statutes have, from time to time, reduced the quantity of
silver in silver coin without any question of their constitutionality.
It is said, however, now, that the act of 1834 only brought the
legal value of gold coin more nearly into correspondence with its
actual value in the market, or its relative value to silver. But we
do not perceive that this varies the case or diminishes its force
as an illustration. The creditor who had a thousand dollars
due him on the 31st day of July, 1834 (the day before the act took
effect), was entitled to a thousand dollars of coined gold of the
rate and fineness of the then existing coinage. The day after,
he was entitled only to a sum six per cent, less in weight and
in market value, or to a smaller number of silver dollars. Yet
he would have been a bold man who had asserted that, because of
this, the obligation of the contract was impaired, or that private
property was taken without compensation or without due process
of law. No such assertion, so far as we know, was ever made.
Admit it was a hardship, but it is not every hardship that is unjust,
much less that is unconstitutional; and certainly it would be an
anomaly for us to hold an act of Congress invalid merely because
we might think its provisions harsh and unjust.
We are not aware of anything else which has been advanced in
support of the proposition that the legal tender acts were forbidden
by either the letter or 'the spirit of the Constitution. If, therefore,
they were, what we have endeavored to show, appropriate means
for legitimate ends, they were not transgressive of the authority
vested in Congress.
Here we might stop; but we will notice briefly an argument pre-
sented in support of the position that the unit of money value
must possess intrinsic value. The argument is derived from assim-
ilating the constitutional provision respecting a standard of weights
and measurer to that conferring the power to coin money and
regulate its value. It is said there can be no uniform standard of
weights without weight, or of measure without length or space, and
we are asked how anything can be made a uniform standard of
value which has itself no value? This is a question foreign to the
LEGAL TENDER CASES. 155
subject before us. The legal tender acts do not attempt to make
paper a standard of value. We do not rest their validity upon
the assertion that their emission is coinage, or any regulation of the
value of money; nor do we assert that Congress may make any-
thing which has no value money. What we do assert is, that
Congress has power to enact that the government's promises to
pay money shall be, for the time being, equivalent in value to the
representative of value determined by the coinage acts, or to mul-
tiples thereof. It is hardly correct to speak of a standard of value.
The Constitution does not speak of it. It contemplates a standard
for that which has gravity or extension; but value is an ideal
thing. The coinage acts fix its unit as a dollar; but the gold or
silver thing we call a dollar is, in no sense, a standard of a dollar.
It is a representative of it. There might never have been a piece
of money of the denomination of a dollar. There never was a
pound sterling coined until 1815, if we except a few coins struck
in the reign of Henry VIII., almost immediately debased, yet it
has been the unit of British currency for many generations. It
is, then, a mistake to regard the legal tender acts as either fixing
a standard of value or regulating money values, or making that
money which has no intrinsic value.
But, without extending our remarks further, it will be seen that
we hold the acts of Congress constitutional as applied to contracts
made either before or after their passage. In so holding, we over-
rule so much of what was decided in Hepburn v. Griswold, 1 as
ruled the acts unwarranted by the Constitution so far as they apply
to contracts made before their enactment. That case was decided
by a divided court, and by a court having a less number of judges
than the law then in existence provided this court shall have.
These cases have been heard before a full court, and they have re-
ceived our most careful consideration. The questions involved
are constitutional questions of the most vital importance to the
government and to the public at large. We have been in the habit
of treating cases involving a consideration of constitutional power
differently from those which concern merely private right. 2 We
are not accustomed to hear them in the absence of a full court, if
it can be avoided. Even in cases involving only private rights, if
convinced we had made a mistake, we would hear another argu-
ment and correct our error. And it is no unprecedented thing in
courts of last resort, both in this country and in England, to over-
i 8 Wallace, 603. 2 Briscoe v. Bank of Kentucky,
8 Peters, 118.
156 CASES ON CONSTITUTIONAL LAW.
rule decisions previously made. "We agree this should not be done
inconsiderately, but in a case of such far-reaching consequences
as the present, thoroughly convinced as we are that Congress has
not transgressed its powers, we regard it as our duty so to decide
and to affirm both these judgments.
The other questions raised in the case of Knox v. Lee were sub-
stantially decided in Texas v. White. 3
Judgment in each case affirmed.
MB. JUSTICE BRADLEY, concurring. . . . The Constitution
of the United States established a government, and not a league,
compact, or partnership. . . . The United States is not only
a government, but it is a National government, and the only gov-
ernment in this country that has the character of nationality.
. . . Such being the character of the General government, it
seems to be a self-evident proposition that it is invested with all
those inherent and implied powers which, at the time of adopting
the Constitution, were generally considered to belong to every
government as such, and as being essential to the exercise of its
functions. If this proposition be not true, it certainly is true
that the government of the United States has express authority,
in the clause last quoted, to make all such laws (usually regarded
as inherent and implied) as may be necessary and proper for carry-
ing on the government as constituted, and vindicating its authority
and existence.
Another proposition equally clear is, that at the time the Con-
stitution was adopted, it was and had for a long time been, the
practice of most, if not all, civilized governments, to employ
the public credit as a means of anticipating the national revenues
for the purpose of enabling them to exercise their governmental
functions, and to meet the various exigencies to which all nations
are subject, and that the mode of employing the public credit
was various in different countries, and at different periods some-
times by the agency of a national bank, sometimes by the issue of
exchequer bills or bills of credit, and sometimes by pledges of the
public domain. . . .
These precedents are cited without reference to the policy or
impolicy of the several measures in the particular cases; that is
always a question for the legislative discretion. They establish
the historical fact that when the Constitution was adopted, the
employment of bills of credit was deemed a legitimate means of
meeting the exigencies of a regularly constituted government, and
a 7 Wallace, 700.
JUILLIARD v. GREENMAN. 157
that the affixing to them of the quality of a legal tender was re-
garded as entirely discretionary with the legislature. . . .
In view, therefore, of all these facts, when we find them estab-
lishing the present government, with all the powers before re-
hearsed, giving to it, amongst other things, the sole control of the
money of the country and expressly prohibiting the States from
issuing bills of credit and from making anything but gold and
silver a legal tender, and imposing no such restriction upon the
General government, how can we resist the conclusion that they
intended to leave to it that power unimpaired, in case the future
exigencies of the nation should require its exercise? . . .
In my judgment the decrees in all the cases before us should
be affirmed.
[The CHIEF JUSTICE and JUSTICES CLIFFORD and FIELD each
delivered dissenting opinions. MR. JUSTICE NELSON also dis-
sented.]
NOTE. Compare the language of Justice Bradley with the
following sentences from James Wilson's Considerations on the
Power to Incorporate the Bank of North America, Works
(Andrews' Edition), I., 558:
"To many purposes, the United States are to be considered as
one undivided, independent nation, and as possessed of all the
rights, and powers, and properties, by the law of nations incident
to such. Whenever an object occurs, to the direction of which no
particular state is competent, the management of it must, of neces-
sity, belong to the United States in congress assembled. There
are many objects of this extended nature." *
LEGAL TENDEE CASE.
JUILLIARD v. GREENMAN.
110 U. S., 421. Decided 1884.
JUILLIARD, a citizen' of New York, brought an action against
Greenman, a citizen of Connecticut, in the Circuit Court of the
United States for the Southern District of New York, alleging
that the plaintiff sold and delivered to the defendant, at his spe-
158 CASES ON CONSTITUTIONAL LAW.
cial instance and request, one hundred bales of cotton, of the value
and for the agreed price of $5,122.90; and that the defendant
agreed to pay that sum in cash on the delivery of the cotton, and
had not paid the same or any part thereof, except that he had
paid the sum of $22.90 on account, and was now justly indebted
to the plaintiff therefor in the sum of $5,100; and demanding
judgment for this sum with interest and costs.
The defendant in his answer admitted the citizenship of the
parties, the purchase and delivery of the cotton, and the agreement'
to pay therefor, as alleged; and averred that, after the delivery
of the cotton, he offered and tendered to the plaintiff, in full
payment, $22.50 in gold coin of the United States, forty cents in
silver coin of the United States, and two United States notes, one
of the denomination of $5,000, and the other of the denomina-
tion of $100, of the description known as United States legal
tender notes, purporting by recital thereon to be legal tender, at
their respective face values, for all debts, public and private,
except duties on imports and interest on the public debt, and
which after having been presented for payment, and redeemed
and paid in gold coin, since January 1st, 1879, at the United
States sub-treasury in New York, had been reissued and kept in
circulation under and in pursuance of the act of Congress of May
31st, 1878, ch. 146; that at the time of offering and tendering
these notes and coin to the plaintiff, the sum of $5,122.90 was
the entire amount due and owing in payment for the cotton, but
the plaintiff declined to receive the notes in payment of $5,100
thereof; and that the defendant had ever since remained, and
still was, ready and willing to pay to the plaintiff the sum of
$5,100 in these notes, and brought these notes into court ready
to be paid to the plaintiff, if he would accept them.
The plaintiff demurred to the answer, upon the grounds that the
defense, consisting of new matter., was insufficient in law upon
its face, and that the facts stated in the answer did not con-
stitute any defense to the cause of action alleged.
The Circuit Court overruled the demurrer and gave judgment
for the defendant, and the plaintiff sued out this writ of error.
MB. JUSTICE GRAY delivered the opinion of the court.
The amount which the plaintiff seeks to recover, and which,
if the tender pleaded is insufficient in law, he is entitled to recover,
is $5,100. There can, therefore, be no doubt of the jurisdiction
JUILLIARD v. GRBENMAN. 159
of this court to revise the judgment of the Circuit Court. Act of
February 16th, 1875, ch. 77, 3; 18 Stat, 315.
The notes of the United States, tendered in payment of the
defendant's debt to the plaintiff, were originally issued under the
acts of Congress of February 25th, 1862, ch. 33, July llth, 1862.
ch. 142, and March 3d, 1863, ch. 73, passed during the war of
the rebellion, and enacting that these notes should "be lawful
money and a legal tender in payment of all debts, public and
private, within the United States," except for duties on imports
and interest on the public debt. 12 Stat., 345, 532, 709.
The provisions of the earlier acts of Congress, so far as it is
necessary, for the understanding of the recent statutes, to quote
them, are re-enacted in the following provisions of the Revised'
Statutes:
"Sec. 3579. When any United States notes are returned to the
Treasury, they may be reissued, from time to time, as the exigencies
of the public interest may require.
"Sec. 3580. When any United States notes returned to the
Treasury are so mutilated or otherwise injured as to be unfit for
use, the Secretary of the Treasury is authorized to replace the
same with others of the same character and amounts.
"Sec. 3581. Mutilated United States notes, when replaced ac-
cording to law, and all other notes which by law are required to be
taken up and not reissued, when taken up shall be destroyed in
such manner and under such regulations as the Secretary of the
Treasury may prescribe.
"Sec. 3582. The authority given to the Secretary of the Treas-
ury to make any reduction of the currency, by retiring and can-
celling United States notes, is suspended."
"Sec. 3588. United States notes shall be lawful money and a
legal tender in payment of all debts, public and private, within
the United States, except for duties on imports and interest on
the public debt."
The act of January 14th, 1875, ch. 15, "to provide for the re-
sumption of specie payments," enacted that on and after January
1st, 1879, "the Secretary of the Treasury shall redeem in coin the
United States legal tender notes then outstanding, on their pre-
sentation for redemption at the office of the Assistant Treasurer
of the United States in the City of New York, in sums of not
less than fifty dollars," and authorized him to use for that pur-
pose any surplus revenues in the Treasury and the proceeds of
the sales of certain bonds of the United States. 18 Stat., 296.
160 CASES ON CONSTITUTIONAL LAW.
The act of May 31st, 1878, ch. 146, under which the notes in
question were reissued, is entitled "An act to forbid the further
retirement of United States legal tender notes," and enacts as
follows:
"From and after the passage of this act it shall not be lawful
for the Secretary of the Treasury or other officer under him to
cancel or retire any more of the United States legal tender notes.
And when any of said notes may be redeemed or be received into
the Treasury under any law from any source whatever and shall
belong to the United States, they shall not be retired, cancelled,'
or destroyed, but they shall be reissued and paid out again and
kept in circulation: Provided, That nothing herein shall prohibit
the cancellation and destruction of mutilated notes and the issue
of other notes of like denomination in their stead, as now provided
by law. All acts and parts of acts in conflict herewith are hereby
repealed." 20 Stat., 87.
The manifest intention of this act is that the notes which it
directs, after having been redeemed, to be reissued and kept in
circulation, shall retain their original quality of being a legal
tender.
The single question, therefore, to be considered, and upon the
answer to which the judgment to be rendered between these par-
ties depends, is whether notes of the United States, issued in time
of war, under acts of Congress declaring them to be a legal
tender in payment of private debts, and afterwards in time of
peace redeemed and paid in gold coin at the Treasury, and then
reissued under the act of 1878, can, under the Constitution of
the United States, be a legal tender in payment of such debts.
Upon full consideration of the case, the court is unanimously
of opinion that it cannot be distinguished in principle from the
cases heretofore determined, reported under the names of the
Legal Tender Cases, 12 Wall., 457; Dooley v. Smith, 13 Wall., 604;
Eailroad Company v. Johnson, 15 Wall., 195; and Maryland v.
Railroad Company, 22 Wall., 105; and all the judges, except Mr.
Justice Field, who adheres to the views expressed in his dissent-
ing opinions in those cases, are of opinion that they were rightly
decided.
The elaborate printed briefs submitted by counsel in this case,
and the opinions delivered in the Legal Tender Cases, and in the
earlier case of Hepburn v. Griswold, 8 Wall., 603, which those
cases overruled, forcibly present the arguments on either side of
the question of the power of Congress to make the notes of the
United States a legal tender in payment of private debts.
JUILLIARD v. GREENMAN. 161
out undertaking to deal with all those arguments, the court has
thought it lit that the grounds of its judgment in the case at bar
should be fully stated.
No question of the scope and extent of the implied powers of
Congress under the Constitution can be satisfactorily discussed
without repeating much of the reasoning of Chief Justice Marshall
in the great judgment in McCulloch v. Maryland, 4 Wheat., 316,
by which the power of Congress to incorporate a bank was demon-
strated and affirmed, notwithstanding the Constitution does not
enumerate, among the powers granted, that of establishing a bank
or creating a corporation.
The people of the United States by the Constitution established
a national government, with sovereign powers, legislative, execu-
tive, and judicial. "The government of the Union," said Chief
Justice Marshall, "though limited in its powers, is supreme within
its sphere of action;" "and its laws, when made in pursuance of
the Constitution, form the supreme law of the land." "Among
the enumerated powers of government, we find the great powers
to lay and collect taxes; to borrow money; to regulate commerce;
to declare and conduct a war; and to raise and support armies
and navies. The sword and the purse, all the external relations,
and no inconsiderable portion of the industry of the nation,
are intrusted to its government." 4 Wheat., 405, 406, 407.
A constitution, establishing a frame of government, declaring
fundamental principles, and creating a national, sovereignty, anc
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, b}
apt words of designation or general description, marks the out-
lines 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. Chief
Justice Marshall, after dwelling upon this view, as required by
the very nature of the Constitution, by the language in which it
is framed, by the limitations upon the general powers of Con-
gress introduced in the ninth section of the first article, and by
the omission to use any restrictive term which might prevent its
receiving a fair and just interpretation, added these emphatic
words: "In considering this question, then, we must never forget
that it is a constitution we are expounding." 4 Wheat., 107. See
also page 415.
The breadth and comprehensiveness of the words of the Con-
11
162 CASES ON CONSTITUTIONAL LAW.
stitution are nowhere more strikingly exhibited than in regard
to the powers over the subjects of revenue, finance, and currency,
of which there is no other express grant than may be found in
these few brief clauses:
"The Congress shall have power
"To lay and collect taxes, duties, imposts, and excises, to pay
the debts and provide for the common defense and general wel-
fare 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 coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures."
The section which contains the grant of these and other prin-
cipal legislative powers concludes by declaring that the Congress
shall have power
"To make all laws which shall be necessary and proper for carry-
ing 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."
By the settled construction and the only reasonable interpreta-
tion of this clause, the words "necessary and proper" are not
limited to such measures as are absolutely and indispensably nec-
essary, without which the powers granted must fail of execu-
tion; but they include all appropriate means which are conducive
or adapted to the end to be accomplished, and which in the judg-
ment of Congrer: will most advantageously effect it.
That clause of the Constitution which declares that "the Con-
gress shall have the power to lay and collect taxes, duties, imposts,
and excises, to pay the debts and provide for the common defense
and general welfare of the United States," either embodies a grant
of power to pay the debts of the United States, or presupposes and
assumes that power as inherent in the United States as a sovereign
government. But, in whichever aspect it be considered, neither
this nor any other clause of the Constitution makes any mention of
priority or preference of the United States as a creditor over other
creditors of an individual debtor. Yet this court, in the early
case of United States v. Fisher, 2 Cranch, 358, held that, under
the power to pay the debts of the United States, Congress had
the power to enact that debts due to the United States should
have that priority of payment out of the estate of an insolvent
debtor, which the law of England gave to debts due the Crown.
JUILLIARD v. GREENMAN. 163
In delivering judgment in that case, Chief Justice Marshall
expounded the clause giving Congress power to make all neces-
sary and proper laws, as follows: "In construing this clause, it
would be incorrect, and would produce endless difficulties, if
the opinion should be maintained that no law was authorized
which was not indispensably necessary to give effect to a specified
power. Where various systems might be adopted for that pur-
pose, it might be said with respect to each, that it was not nec-
essary, because the end might be obtained by other means. Con-
gress must possess the choice of means, and must be empowered
to use any means which are in fact conducive to the exercise of
a power granted by the Constitution. The government is to pay
the debt of the Union, and must be authorized to use the means
which appear to itself the most eligible to effect that object." 2,.
Cranch, 396.
In McCulloch v. Maryland, he more fully developed the same
view, concluding thus: "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 discre-
tion, with respect to the means by which the powers it con-
fers are to be carried into execution, 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 legitimate, let it be within
the scope of the Constitution, and all means which are appro-
priate, which are plainly adapted to that end, which are not pro-
hibited, but consist with the letter and spirit of the Constitution,
are constitutional." 4 Wheat., 421.
The rule of interpretation thus laid down has been constantly
adhered to and acted on by this court, and was accepted as express-
ing the true test by all the judges who took part in the former
discussions of the power of Congress to make the treasury notes
of the United States a legal tender in payment of private debts.
The other judgments delivered by Chief Justice Marshall con-
tain nothing adverse to the power of Congress to issue legal tender
notes.
By the Articles of Confederation of 1777, the United States in
Congress assembled were authorized "to borrow money or emit
bills on the credit of the United States;" but it was declared that
"each State retains its sovereignty, freedom, and independence, and
every power, jurisdiction, and right which is not by this confed-
eration expressly delegated to the United States in Congress assem-
bled." Art. 2; art. 9, 5; 1 Stat., 4, 7. Yet, upon the question
164 CASES ON CONSTITUTIONAL LAW.
whether, under those articles, Congress, by virtue of the power to
emit bills on the credit of the United States, had the power to make
bills so emitted a legal tender, Chief Justice Marshall spoke very
guardedly, saying: "Congress emitted bills of credit to a large
amount, and did not, perhaps could not, make them a legal tender.
This power resided in the States." Craig v. Missouri, 4 Pet., 410,
435. But in the Constitution, as he had before observed in Mc-
Culloch v. Maryland, "there is no phrase which, like the Articles
of Confederation, excludes incidental or implied powers; and
which requires that everything granted shall be expressly and
minutely described. Even the Tenth Amendment, which was
framed for the purpose of quieting the excessive jealousies which
had been excited, omits the word 'expressly/ and declares only
that the powers 'not delegated to the United States, nor prohib-
ited to the States, are reserved to the States or to the people;'
thus leaving the question, whether the particular power which
may become the subject of contest has been delegated to the one
government or prohibited to the other, to depend on a fair con-
struction of the whole instrument. The men who drew and adopted
this amendment had experienced the embarrassments resulting
from the insertion of this word in the Articles of Confederation,
and probably omitted it to avoid those embarrassments." 4 Wheat.,
406, 407.
The sentence sometimes quoted from his opinion in Sturges
v. Crowninshield had exclusive relation to the restrictions im-
posed by the Constitution on the powers of the States, and espe-
cial reference to the effect of the clause prohibiting the States
from passing laws impairing the obligation of contracts, as will
clearly appear by quoting the whole paragraph: "Was this gen-
eral prohibition intended to prevent paper money? We are not
allowed to say so, because it is expressly provided that no State
shall 'emit bills of credit;' neither could these words be intended
to restrain the States from enabling debtors to discharge their
debts by the tender of property of no real value to the creditor,
because for that subject also particular provision is made. Noth-
ing but gold and silver coin can be made a tender in payment of
debts." 4 Wheat., 122, 204.
Such reports as have come down to us of the debates in the Con-
vention that framed the Constitution afford no proof of any gen-
eral concurrence of opinion upon the subject before us. The
adoption of the motion to strike out the words "and emit bills"
from the clause "to borrow money and emit bills on the credit of
the United States" is quite inconclusive. The philippic delivered
JUILLIARD v. GREENMAN. 165
before the Assembly of Maryland by Mr. Martin, one of the dele-
gates from that State, who voted against the motion, and who de-
clined to sign the Constitution, can hardly be accepted as satis-
factory evidence of the reasons or the motives of the majority
of the Convention. See 1 Elliot's Debates, 345, 370, 376. Some
of the members of the Convention, indeed, as appears by Mr.
Madison's minutes of the debates, expressed the strongest opposi-
tion to paper money. And Mr. Madison has disclosed the grounds
of his own action, by recording that "this vote in the affirmative
by Virginia was occasioned by the acquiescence ' of Mr. Madison,
who became satisfied that striking out the words would not dis-
able the government from the use of public notes, so far as they
could be safe and proper; and would only cut off the pretext for
a paper currency, and particularly for making the bills a tender,
either for public or private debts." But he has not explained
why he thought that striking out the words "and emit bills" would
leave the power to emit bills, and deny the power to make them
a tender in payment of debts. And it cannot be known how
many of the other delegates, by whose vote the motion was adopted,
intended neither to proclaim nor to deny the power to emit paper
money, and were influenced by the argument of Mr. Gorham, who
"was for striking out, without inserting any prohibition," and
who said: "If the words stand, they may suggest and lead to the
emission." "The power, so far as it will be necessary or safe, will
be involved in that of borrowing." 5 Elliot's Debates, 434, 435,
and note. And after the first clause of the tenth section of the
first article had been reported in the form in which it now
stands, forbidding the States to make anything but gold or silver
coin a tender in payment of debts, or to pass any law impairing
the obligation of contracts, when Mr. Gerry, as reported by Mr.
Madison, "entered into observations inculcating the importance
of public faith, and the propriety of the restraint put on the States
from impairing the obligation of contracts, alleging that Congress
ought to be laid under the like prohibitions," and made a motion
to that effect, he was not seconded. Ib., 546. As an illustration
of the danger of giving too much weight, upon such a question,
to the debates and the votes in the Convention, it may also be
observed that propositions to authorize Congress to grant charters
of incorporation for national objects were strongly opposed, espe-
cially as regarded banks, and defeated. Ib,, 440, 543, 544. The
power of Congress to emit bills of credit, as well as to incorporate
national banks, is now clearly established by decisions to which
we shall presently refer.
166 CASES ON CONSTITUTIONAL LAW.
The words "to borrow money/' as used in the Constitution, to
designate a power vested in the national government, for the safety
and welfare of the whole people, are not to receive that limited
and restricted interpretation and meaning which they would have
in a penal statute, or in an authority conferred, by law or by con-
tract, upon trustees or agents for private purposes.
The power "to borrow money on the credit of the United States"
is the power to raise money for the public use on a pledge of the
public credit, and may be exercised to meet either present or an-
ticipated expenses and liabilities of the government. It includes
the power to issue, in return for the money borrowed, the obliga-
tions of the United States in any appropriate form, of stock, bonds,
bills, or notes; and in whatever form they are issued, being instru-
ments of the national government, they are exempt from taxa-
tion by the governments of the several States. Weston v. Charles-
ton City Council, 2 Pet., 449; Banks v. Mayor, 7 Wall., 16; Bank
v. Supervisors, 7 Wall., 26. Congress has authority to issue these
obligations in a form adapted to circulation from hand to hand
in the ordinary transactions of commerce and business. In order
to promote and facilitate such circulation, to adapt them to use
as currency, and to make them more current in the market, it may
provide for their redemption in coin or bonds, and may make
them receivable in payment of debts to the government. So much
is settled beyond doubt, and was asserted or distinctly admitted
by the judges who dissented from the decision in the Legal Tender
Cases, as well as by those who concurred in that decision. Veazie
Bank v. Fenno, 8 Wall., 533, 548; Hepburn v. Griswold, 8 Wall.,
616, 636; Legal Tender Cases, 12 Wall., 543, 544, 560, 582, 610,
613, 637.
It is equally well settled that Congress has the power to incor-
porate national banks, with the capacity, for their own profit as
well as for the use of the government in its money transactions, of
issuing bills which under ordinary circumstances pass from hand
to hand as money at their nominal value, and which, when so
current, the law has always recognized as a good tender in pay-
ment of money debts, unless specifically objected to at the time of
the tender. United States Bank v. Bank of Georgia, 10 Wheat.,
333, 347; Ward v. Smith, 7 Wall., 447, 451. The power of Con-
gress to charter a bank was maintained in McCulloch v. Maryland,
4 Wheat., 316, and in Osborn v. United States Bank, 9 Wheat.,
738, chiefly upon the ground that it was an appropriate means
for carrying on the money transactions of the government. But
Chief Justice Marshall said: "The currency which it circulates,
JUILLIARD v. GREENMAN. 167
by means of its trade with individuals, is believed to make it a
more fit instrument for the purposes of government than it could
otherwise be; and if this be true, the capacity to carry on this
trade is a faculty indispensable to the character and objects of the
institution." 9 Wheat., 864. And Mr. Justice Johnson, who
concurred with the rest of the court in upholding the power to
incorporate a bank, gave the further reason that it tended to give
effect to "that power over the currency of the country, which the
framers of the Constitution evidently intended to give to Congress
alone." Ib., 873.
The constitutional authority of Congress to provide a currency
for the whole country is now firmly established. In Veazie Bank
v. Fenno, 8 Wall., 533, 548, Chief Justice Chase, in delivering the
opinion of the court, said: "It cannot be doubted that under the
Constitution the power to provide a circulation of coin is given to
Congress. And it is settled by the uniform practice of the govern-
ment, and by repeated decisions, that Congress may constitutionally
authorize the emission of bills of credit." Congress, having under-
taken to supply a national currency, consisting of coin, of treasury
notes of the United States, and of the bills of national banks, is
authorized to impose on all State banks, or national banks, or pri-
vate bankers, paying out the notes of individuals or of State banks,
a tax of ten per cent, upon the amount of such notes so paid out.
Veazie Bank v. Fenno, above cited; National Bank v. United
States, 101 U. S., 1. The reason for this conclusion was stated by
Chief Justice Chase, and repeated by the present Chief Justice, in
these words: "Having thus, in the exercise of undisputed consti-
tutional powers, undertaken to provide a currency for the whole
country, it cannot be questioned that Congress may, constitution-
ally, secure the benefit of it to the people by appropriate legisla-
tion. To this end, Congress has denied the quality of legal tender
to foreign coins, and has provided by law against the imposition of
counterfeit and base coin on the community. To the same end,
Congress may restrain, by suitable enactments, the circulation as
money of any notes not issued under its own authority. Without
this power, indeed, its attempts to secure a sound and uniform
currency for the country must be futile." 8 Wall., 549; 101 U. S., 6.
By the Constitution of the United States, the several States
are prohibited from coining money, emitting bills of credit, or
making anything but gold and silver coin a tender in payment
of debts. But no intention can be inferred from this to deny to
Congress either of these powers. Most of the powers granted to
Congress are described in the eighth section of the first article; the
168 CASES ON CONSTITUTIONAL LAW.
limitations intended to be set to its powers, so as to exclude certain
things which might otherwise be taken to be included in the gen-
eral grant, are defined in the ninth section; the tenth section is
addressed to the States only. This section prohibits the States
from doing some things which the United States are expressly pro-
hibited from doing, as well as from doing some things which the
United States are expressly authorized to do, and from doing some
things which are neither expressly granted nor expressly denied
to the United States. Congress and the States equally are express-
ly prohibited from passing any bill of attainder or ex post facto
law, or granting any title of nobility. The States are forbidden,
while the President and Senate are expressly authorized, to make
treaties. The States are forbidden, but Congress is expressly au-
thorized to coin money. The States are prohibited from emitting
bills of credit; but Congress, which is neither expressly author-
ized nor expressly forbidden to do so, has, as we have already
seen, been held to have the power of emitting bills of credit, and
of making every provision for their circulation as currency, short
of giving them the quality of legal tender for private debts
even by those who have denied its authority to give them this
quality.
/It appears to us to follow, as a logical and necessary conse-
/ quence, that Congress has the power to issue the obligations of the
/ United States in such form, and to impress upon them such quali-
ties 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 borrowing money and issuing
bills or notes of the government for money borrowed, of impress-
; ing upon those bills or notes the quality of being a legal tender
I for the payment of private debts, was a power universally under-
stood 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 legislature, 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. This power has been
distinctly recognized in an important modern case, ably argued and
fully considered, in which the Emperor of Austria, as King of Hun-
gary, obtained from the English Court of Chancery an injunction
against the issue in England, without his license, of notes pur-
1 porting to be public paper money of Hungary. Austria v. Day,
2 Giff., 628, and 3 D. F. & J., 217. The power of issuing bills
of credit, and making them, at the discretion of the legislature, a
JUILLIARD v. GREENMAN. 169
tender in payment of private debts, had long been exercised in this
country by the several Colonies and States; and during the Revo-
lutionary War the States, upon the recommendation of the Con-
gress of the Confederation, had made the bills issued by Congress
a legal tender. See Craig v. Missouri, 4 Pet., 435, 453; Briscoe v.
Bank of Kentucky, 11 Pet., 257, 313, 334-336; Legal Tender
Cases, 12 Wall., 557, 558, 622; Phillips on American Paper Cur-
rency, passim. The exercise of this power not being prohibited to
Congress by the Constitution, it is included in the power expressly
granted to borrow money on the credit of the United States.
This position is fortified by the fact that Congress is vested with
the exclusive exercise of the analogous power of coining money
and regulating the value of domestic and foreign coin, and also
with the paramount power of regulating foreign and interstate
commerce. Under the power to borrow money on the credit of the
United States, and to issue circulating notes for the money bor-
rowed, its -power to define the quality and force of those notes as
currency is as broad as the like power over a metallic currency
under the power to coin money and to regulate the value thereof.
Under the two powers, taken together, Congress is authorized to
establish a national currency, either in coin or in paper, and to
make that currency lawful money for all purposes, as regards the
national government or private individuals.
The power of making the notes of the United States a legal
tender in payment of private debts, being included in the power
to borrow money and to provide a national currency, is not defeated
or restricted by the fact that its exercise may affect the value of
private contracts. If, upon a just and fair interpretation of the
whole Constitution, a particular power or authority appears to be
vested in Congress, it is no constitutional objection to its existence,
or to its exercise, that the property or the contracts of individuals
may be incidentally affected. The decisions of this court, already
cited, afford several examples of this.
Upon the issue of stock, bonds, bills, or notes of the United
States, the States are deprived of their power of taxation to the
extent of the property invested by individuals in such obligations,
and the burden of State taxation upon other private property is
correspondingly increased. The ten per cent, tax, imposed by
Congress on notes of State banks and of private bankers, not only
lessens the value of such notes, but tends to drive them, and all
State banks of issue, out of existence. The priority given to debts
due to the United States over the private debts of an insolvent
170 CASES ON CONSTITUTIONAL LAW.
debtor diminishes the value of these debts, and the amount which
their holders may receive out of the debtor's estate.
So, under the power to coin money and to regulate its value,
Congress may (as it did with regard to gold by the act of June
28th, 1834, c. 95, and with regard to silver by the act of February
28th, 1878, c. 20), issue coins of the same denominations as those
already current by law, but of less intrinsic value than those, by
reason of containing a less weight of the precious metals, and
thereby enable debtors to discharge their debts by the payment of
coins of the less real value. A contract to pay a certain sum in
money, without any stipulation as to the kind of money in which
it shall be paid, may always be satisfied by payment of that sum in
any currency which is lawful money at the place and time at which
payment is to be made. 1 Hale P. C., 192-194; Bac. Ab. Tender,
B. 2; Pothier, Contract of Sale, No. 416; Pardessus, Droit Com-
mercial, Nos. 204, 205; Searight v. Calbraith, 4 Dall., 324. As
observed by Mr. Justice Strong, in delivering the opinion of the
court in the Legal Tender Cases, "Every contract for the payment
of money, simply, is necessarily subject to the constitutional power
of the government over the currency, whatever that power may be,
and the obligation of the parties is, therefore, assumed with refer-
ence to that power." 12 Wall., 549.
Congress, as the legislature of a sovereign nation, being ex-
pressly empowered by the Constitution, "to lay and collect taxes,
to pay the debts and provide for the common defense and general
welfare of the United States," and "to borrow money on the credit
of the United States," and "to coin money and regulate the value
thereof and of foreign coin;" and being clearly authorized, as in-
cidental to the exercise of those great powers, to emit bills of credit,
to charter national banks, and to provide a national currency for
the whole people, in the form of coin, treasury notes, and national
/bank bills; and the power to make the notes of the government a
/legal tender in payment of private debts being one of the powers
I belonging to sovereignty in other civilized nations, and not ex-
[ pressly withheld from Congress by the Constitution; we are irre-
sistibly impelled to the conclusion that the impressing upon the
treasury notes of the United States the quality of being a legal
tender in payment of private debts is an appropriate means, con-
ducive and plainly adapted to the execution of the undoubted
powers of Congress, consistent with the letter and spirit of the
Constitution, and therefore, within the meaning of that instru-
ment, "necessary and proper for carrying into execution the pow-
JUILLIARD v. GREENMAN. 171
ers vested by this Constitution in the government of the United
States."
Such being our conclusion in matter of law, the question wheth-
er at any particular time, in war or in peace, the exigency is such,
by reason of unusual and pressing demands on the resources of
the government, or of the inadequacy of the supply of gold and
silver coin to furnish the currency needed for the uses of the gov-
ernment and of the people, that it is, as matter of fact, wise and
expedient to resort to this means, is a political question, to be de-
termined by Congress when the question of exigency arises, and
not a judicial question, to be afterwards passed upon by the courts.
To quote once more from the judgment in McCulloch v. Maryland:
"Where the law is not prohibited, and is really calculated to effect
any one of the objects intrusted to the government, to undertake
here to inquire into the degree of its necessity would be to pass the
line which circumscribes the judicial department, and to tread on
legislative ground." 4 Wheat., 423.
It follows that the act of May 31st, 1878, c. 146, is constitutional
and valid; and that the Circuit Court rightly held that the tender
in treasury notes, reissued and kept in circulation under that act,
was a tender of lawful money in payment of the defendant's debt
to the plaintiff. Judgment affirmed.
[MR. JUSTICE FIELD delivered a dissenting opinion.]
NOTE. See articles in American Law Keview, IV., 768, by Jus-
tice 0. W. Holmes, and in Harvard Law Eeview, I., 73, by Prof.
James B. Thayer.
IV. COMMERCE.
GIBBONS v. OGDEN.
9 Wheaton, 1. Decided 1824.
EREOR to the court for the trial of impeachments and correction
of errors of the State of New York. Aaron Ogden filed his bill in
the court of chancery of that State, against Thomas Gibbons, set-
ting forth the several acts of the legislature thereof, enacted for
the purpose of securing to Kobert R. Livingston and Robert Fulton
the exclusive navigation of all the waters within the jurisdiction
of that State, with boats moved by fire or steam, for a term of
years which has not yet expired; and authorizing the chancellor
to award an injunction, restraining any person whatever from
navigating those waters with boats of that description. The bill
stated an assignment from Livingston and Fulton to one John R.
Livingston, and from him to the complainant, Ogden, of the right
to navigate the waters between Elizabethtown, and other places
in New Jersey, and the city of New York; and that Gibbons, the
defendant below, was in possession of two steamboats, called The
Stoudinger and The Bellona, which were actually employed in
running between New York and Elizabethtown, in violation of the
exclusive privilege conferred on the complainant, and praying an
injunction to restrain the said Gibbons from using the said boats,
or any other propelled by fire or steam, in navigating the waters
within the territory of New York. The injunction having been
awarded, the answer of Gibbons was filed, in which he stated that
the boats employed by him were duly enrolled and licensed, to be
employed in carrying on the coasting trade, under the act of con-
gress, passed the 18th of February, 1793, c. 8 (1 Stats, at Large,
305), entitled, "An act for enrolling and licensing ships and ves-
sels to be employed in the coasting trade and fisheries, and for
regulating the same." And the defendant insisted on his right,
in virtue of such licenses, to navigate the waters between Eliza-
bethtown and the city of New York, the said acts of the legislature
172
GIBBONS v. OGDEN. 17
of the State of New York to the contrary notwithstanding. At
the hearing, the chancellor perpetuated the injunction, being of
the opinion that the said acts were not repugnant to the consti-
tution and laws of the United States, and were valid. This decree
was affirmed in the court for the trial of impeachments and correc-
tion of errors, which is the highest court of law and equity in the
State, before which the cause could be carried, and it was there-
upon brought to this court by writ of error. . . .
MARSHALL, C. J., delivered the opinion of the court, and, after
stating the case, proceeded as follows:
The appellant contends that this decree is erroneous, because
the laws which purport to give the exclusive privilege it sustains
are repugnant to the constitution and laws of the United States.
They are said to be repugnant,
1. To that clause in the constitution which authorizes congress
to regulate commerce.
2. To that which authorizes congress to promote the progress
of science and useful arts.
The State of New York maintains the constitutionality of these
laws; and their legislature, their council of revision, and their
judges, have repeatedly concurred in this opinion. It is supported
by great names, by names which have all the titles to considera-
tion that virtue, intelligence, and office can bestow. No tribunal
can approach the decision of this question without feeling a just
and real respect for that opinion which is sustained by such author-
ity; but it is the province of this court, while it respects, not to
bow to it implicitly; and the judges must exercise, in the exam-
ination of the subject, that understanding which Providence has
bestowed upon them, with that independence which the people of
the United States expect from this department of the government.
As preliminary to the very able discussions of the constitution
which we have heard from the bar, and as having some influence
on its construction, reference has been made to the political situa-
tion of these States, anterior to its formation. It has been said
that they were sovereign, were completely independent, and were
connected with each other only by a league. This is true. But,
when these allied sovereigns, converted their league into a govern-
ment, when they converted their congress of ambassadors, deputed
to deliberate on their common concerns, and to recommend meas-
ures of general utility, into a legislature; empowered to enact laws
on the most interesting subjects, the whole character in which the
States appear underwent a change, the extent of which must be
174 CASES ON CONSTITUTIONAL LAW.
determined by a fair consideration of the instrument by which that
change was effected.
This instrument contains an enumeration of powers expressly
granted by the people to their government. It has been said that
these powers ought to be construed strictly. But why ought they
to be so constructed? Is there one sentence in the constitution
which gives countenance to this rule? In the last of the enumer-
ated powers, that which grants, expressly, the means for carrying
all others into execution, congress is authorized "to make all laws
which shall be necessary and proper" for the purpose. But this
limitation on the means which may be used, is not extended to the
powers which are conferred; nor is there one sentence in the consti-
tution, which has been pointed out by the gentlemen of the bar, or
which we have been able to discern, that prescribes this rule. We
do not, therefore, think ourselves justified in adopting it. What do
gentlemen mean by a strict construction? If they contend only
against that enlarged construction, which would extend words be-
yond their natural and obvious import, we might question the
application of the term, but should not controvert the principle.
If they contend for that narrow construction which, in support
of some theory not to be found in the constitution, would deny to
the government those powers which the words of the grant, as
usually understood, import, and which are consistent with the
general views and objects of the instrument; for that narrow con-
struction, which would cripple the government, and render it un-
equal to the objects for which it is declared to be instituted, and
to which the powers given, as fairly understood, render it com-
petent; then we cannot perceive the propriety of this strict con-
struction, nor adopt it as the rule by which the constitution is to
be expounded. As men whose intentions require no concealment,
generally employ the words which most directly and aptly express
the ideas they intend to convey, the enlightened patriots who
framed our constitution, and the people who adopted it, must be
understood to have employed words in their natural sense, and to
have intended what they have said. If, from the imperfection of
human language, there should be serious doubts respecting the
extent of any given power, it is a well settled rule that the objects
for which it was given, especially when those objects are ex-
pressed in the instrument itself, should have great influence in
the construction. We know of no reason for excluding this rule
from the present case. The grant does not convey power which
might be beneficial to the grantor, if retained by himself, or
which can enure solely to the benefit of the grantee; but is an
GIBBONS v. OGDEN. 175
investment of power for the general advantage, in the hands of
agents selected for that purpose; which power can never be exer-
cised by the people themselves, but must be placed in the hands of
agents, or lie dormant. We know of no rule for construing the
extent of such powers, other than is given by the language of the
instrument which confers them, taken in connection with the pur-
poses for which they were conferred.
The words are: "Congress shall have power to regulate com-"
merce with foreign nations, and among the several States, and with
the Indian tribes." The subject to be regulated is commerce;
and our constitution being, as was aptly said at the bar, one of
enumeration, and not of definition, to ascertain the extent of the
power, it becomes necessary to settle the meaning of the word.
The counsel for the appellee would limit it to traffic, to buying
and selling, or the interchange of commodities, and do not admit
that it comprehends navigation. This would restrict a general
term, applicable to many objects, to one of its significations.
Commerce, undoubtedly, is traffic, but it is something more, it
is intercourse. It describes the commercial intercourse between
nations, and parts of nations, in all its branches, and is regulated
by prescribing rules for carrying on that intercourse. The mind
can scarcely conceive a system for regulating commerce between
nations which shall exclude all laws concerning navigation, which
shall be silent on the admission of the vessels of the one nation
into the ports of the other, and be confined to prescribing rules for
the conduct of individuals, in the actual employment of buying
and selling, or of barter.
If commerce does not include navigation, the government of
the Union has no direct power over that subject, and can make no
law prescribing what shall constitute American vessels, or requir-
ing that they shall be navigated by American seamen. Yet this
power has been exercised from the commencement of the govern-
ment, has been exercised with the consent of all, and has been
understood by all to be a commercial regulation. All America
understands, and has uniformly understood, the word "commerce"
to comprehend navigation. It was so understood, and must have
been so understood, when the constitution was framed. The power
over commerce, including navigation, was one of the primary ob-
jects for which the people of America adopted their government,
and must have been contemplated in forming it. The convention
must have used the word in that sense, because all have under-
stood it in that sense; and the attempt to restrict it comes too late.
If the opinion that "commerce," as the word is used in the con-
176 CASES ON CONSTITUTIONAL LAW.
stitution, comprehends navigation also, requires any additional
confirmation, that additional confirmation is, we think, furnished
by the words of the instrument itself. It is a rule of construction
acknowledged by all, that the exceptions from a power mark its
extent; for it would be absurd, as well as useless, to except from a
granted power that which was not granted, that which the words
of the grant could not comprehend. If, then, there are in the
constitution plain exceptions from the power over navigation, plain
inhibitions to the exercise of that power in a particular way, it is
a proof that those who made these exceptions, and prescribed these
inhibitions, understood the power to which they applied as being
granted.
The 9th section of the 1st article declares that "no preference
shall be given, by any regulation of commerce or revenue, to the
ports of one State over those of another." This clause cannot be
understood as applicable to those laws only which are passed for
the purposes of revenue, because it is expressly applied to com-
mercial regulations; and the most obvious preference which can
be given to one port over another, in regulating commerce, relates
to navigation. But the subsequent part of the sentence is still
more explicit. It is, "nor shall vessels bound to or from one
State, be obliged to enter, clear, or pay duties in another." These
words have a direct reference to navigation.
The universally acknowledged power of the government to im-
pose embargoes must also be considered as showing that all Amer-
ica is united in that construction which comprehends navigation in
the word "commerce.*' Gentlemen have said, in argument, that
this is a branch of the war-making power, and that an embargo is
an instrument of war, not a regulation of trade. That it may be,
and often is, used as an instrument of war, cannot be denied. An
embargo may be imposed for the purpose of facilitating the equip-
ment or manning of a fleet, or for the purpose of concealing the
progress of an expedition preparing to sail from a particular port.
In these, and in similar cases, it is a military instrument, and par-
takes of the nature of war. But all embargoes are not of this de-
scription. They are sometimes resorted to without a view to war,
and with a single view to commerce. In such case an embargo is
no more a war measure than a merchantman is a ship of war, be-
cause both are vessels which navigate the ocean with sails and
seamen.
When congress imposed that embargo which, for a time, engaged
the attention of every man in the United States, the avowed ob-
ject of the law was the protection of commerce and the avoiding
GIBBONS v. OGDEN. 177
of war. By its friends and its enemies it was treated as a commer-
cial, not as a war, measure. The persevering earnestness and zeal
with which it was opposed, in a part of our country which supposed
its interests to be vitally affected by the act, cannot be forgotten.
A want of acuteness in discovering objections to a measure to which
they felt the most deep-rooted hostility, will not be imputed to
those who were arrayed in opposition to this. Yet they never sus-
pected that navigation was no branch of trade, and was, therefore,
not comprehended in the power to regulate commerce. They did,
indeed, contest the constitutionality of the act, but on a principle
which admits the construction for which the appellant contends.
They denied that the particular law in question was made in pur-
suance of the constitution, not because the power could not act
directly on vessels, but because a perpetual embargo was the an-
nihilation, and not the regulation, of commerce. In terms, they
admitted the applicability of the words used in the constitution to
vessels; an'd that, in a case which produced a degree and an extent
of excitement calculated to draw forth every principle on which
legitimate resistance could be sustained. No example could more
strongly illustrate the universal understanding of the American
people on this subject.
The word used in the constitution, then, comprehends, and has
been always understood to comprehend, navigation within its mean-
ing; and a power to regulate navigation is as expressly granted as
if that term had been added to the word "commerce."
To what commerce does this power extend? The constitution
informs us, to commerce "with foreign nations, and among the
several States, and with the Indian tribes." It has, we believe,
been universally admitted that these words comprehend every
species of commercial intercourse between the United States and
foreign nations. No sort of trade can be carried on between this
country and any other to which this power does not extend. It
has been truly said that commerce, as the word is used in the con-
stitution, is a unit, every part of which is indicated by the term.
If this be the admitted meaning of the word, in its application to
foreign nations, it must carry the same meaning throughout the
sentence, and remain a unit, unless there be some plain intelligible
cause which alters it.
/" The subject to which the power is next applied is to commerce
/ "among the several States." The word "among" means inter-
j mingled with. A thing which is among others is intermingled
\ with them. Commerce among the States cannot stop at the ex-
V 12
178 CASES ON CONSTITUTIONAL LAW.
ternal boundary line of each State, but may be introduced into
the interior.
It is not intended to say that these words comprehend that com-
merce which is completely internal, which is carried on between
man and man in a State, or between different parts of the same
State, and which does not extend to or affect other States. Such
a power would be inconvenient and is certainly unnecessary.
Comprehensive as the word "among" is, it may very properly be
restricted to that commerce which concerns more States than one.
The phrase is not one which would probably have been selected
to indicate the completely interior traffic of a State, because it is
not an apt phrase for that purpose; and the enumeration of the
particular classes of commerce to which the power was to be ex-
tended would not have been made had the intention been to extend
the power to every description. The enumeration presupposes
something not enumerated; and that something, if we regard the
language or the subject of the sentence, must be the exclusively
internal commerce of a Staite. The genius and character of the
whole government seem to be, that its action is to be applied to all
the external concerns of the nation, and to those internal con-
cerns which affect the States generally; but not to those which are
completely within a particular State, which do not affect other
Staites, and with which it is not necessary to interfere for the pur-
pose of executing some of the general powers of the government.
The completely internal commerce of a State, then, may be con-
sidered as reserved for the State itself.
But, in regulating commerce with foreign nations, the power of
congress does not stop at the jurisdictional lines of the several
States. It would be a very useless power if it could not pass those
lines. The commerce of the United States with foreign nations is
that of the whole United States. Every district has a right to
participate in it. The deep streams which penetrate our country
in every direction pass through the interior of almost every State
in the Union, and furnish the means of exercising this right. If
congress has the power to regulate it, that power must be exer-
cised whenever the subject exists. If it exists within the States,
if a foreign voyage may commence or terminate at a port within a
State, then the power of Congress may be .exercised within a
State.
This principle is, if possible, still more clear when applied to
commerce "among the several States." They either join each
other, in which case they are separated by a mathematical line, or
they are remote from each other, in which case other States lie
GIBBONS v. OGDEN. 179
between them. What is commerce "among" them; and how is it
to be conducted? Can a trading expedition between two adjoining
States commence and terminate outside of each? And if the trad-
ing intercourse be between two States remote from each other,
must it not commence in one, terminate in the other, and probably ,
pass through a third? Commerce among the States must., of neces- /
sity, be commerce with the States. In the regulation of trade with
the Indian tribes, the action of the law, especially when the consti-
tution was made, was chiefly within a State . The power of congress,
then, whatever it may be, must be exercised within the territorial
jurisdiction of the several States. The sense of the nation on this
subject is unequivocally manifested by the provisions made in the
laws for transporting goods by land between Baltimore and Provi-
dence, between New York and Philadelphia, and between Phila-
delphia and Baltimore.
We are now arrived at the inquiry, what is this power?
It is the power to regulate; that is, to prescribe the rule by
which commerce is to be governed. This power, like all others
vested in congress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are
prescribed in the constitution. These are expressed in plain terms,
and do not affect the questions which arise in this case, or which
have been discussed at the bar. If, as has always been understood,
the sovereignty of congress, though limited to specified objects, is
plenary as to those objects, the power over commerce with foreign
nations, and among the several States, is vested in congress as ab-
solutely as it would be in a single government, having in its consti-
tution the same restrictions on the exercise of the power as are
found in the Constitution of the United States. The wisdom and
the discretion of congress, their identity with the people, and the
influence which their constituents possess at elections, are, in this,
as in many other instances, as that, for example, of declaring war,
the sole restraints on which they have relied, to secure them from
its abuse. They are the restraints on which the people must often
rely solely, in all representative governments.
The power of congress, then, comprehends navigation withii
the limits of every State in the Union, so far as that navigation
may be, in any manner, connected with "commerce with foreign
nations, or among the several States, or with the Indian tribes."
It may, of consequence, pass the jurisdictional line of New York,)
and act upon the very waters to which the prohibition now undei
consideration applies.
But it has been urged with great earnestness that, although the
180 CASES ON CONSTITUTIONAL LAW.
power of congress to regulate commerce with foreign nations, and
among the several States, be co-extensive with the subject itself,
and have no other limits than are prescribed in the constitution,
yet the States may severally exercise the same power within their
respective jurisdictions. In support of this argument, it is said
*h a * they possessed i<t as an inseparable attribute of sovereignty
before the formation of the constitution, and still retain it, except
so far as they have surrendered it by that instrument; that this
principle results from the nature of the government, and is secured
by the tenth amendment; that an affirmative grant of power is
not exclusive, unless in its own nature it be such that the continued
exercise of it by the former possessor is inconsistent with the
grant, and that this is not of that description.
The appellant, conceding these postulates, except the last, con-
tends that full power to regulate a particular subject implies the
whole power, and leaves no residuum; that a grant of the whole
is incompatible with the existence of a right in another to any
part of it.
Both parties have appealed to the constitution, to legislative
acts, and judicial decisions; and have drawn arguments from all
these sources to support and illustrate the propositions they re-
spectively maintain.
The grant of the power to lay and collect taxes is, like the power
to regulate commerce, made in general terms, and has never been
understood to interfere with the exercise of the same power T3y the
States; and hence has been drawn an argument which has been
applied to the question under consideration. But the two grants
are not, it is conceived, similar in their terms or their nature.
Although many of the powers formerly exercised by the States are
transferred to the government of the Union, yet the State gov-
ernments remain, and constitute a most important part of our
system. The power of taxation is indispensable to their existence,
and is a power which, in its own nature, is capable of residing in,
and being exercised by, different authorities at the same time.
We are accustomed to see it placed, for different purposes, in dif-
ferent hands. Taxation is the simple operation of taking small por-
tions from a perpetually accumulating mass, susceptible of almost
infinite division; and a power in one to take what is necessary for
certain purposes, is not in its nature incompatible with a power in
another to take what is necessary for other purposes. Congress is
authorized to lay and collect taxes, etc., to pay the debts, and pro-
vide for the common defense and general welfare of the United
States. This does not interfere with the power of the States to
GIBBONS v. OGDEN. 181
/iax for the support of their own governments; nor is the exercise
I of that power by the States an exercise of any portion of the
// power that is granted to the United States. In imposing taxes
/ for State purposes, they are not doing what congress is empowered
/ to do. Congress is not empowered to tax for those purposes which
/ are within the exclusive province of the States. When, then, each
government exercises <the power of taxation, neither is exercising
the power of the other. But when a State proceeds to regulate
I commerce with foreign nations, or among the several States, it is
\ exercising the very power that is granted to congress, and is doing
\ the very thing which congress is authorized to do. There is no
analogy, then, between the power of taxation and the power of reg-
ulating commerce.
In discussing the question whether this power is still in the
States, in the case under consideration, we may dismiss from it
the inquiry, whether it is surrendered by the mere grant to con-
gress, or is retained until congress shall exercise the power. "We
may dismiss that inquiry because it has been exercised, and the
regulations which congress deemed it proper to make are now in
full operation. The sole question is, can a State regulate com-
merce witJi foreign nations and among the States while congress
is regulating it?
The counsel for the respondent answer this question in the
affirmaitive, and rely very much on the restrictions in the 10th sec-
tion as supporting their opinion. . . .
These restrictions, then, are on the taxing power, not on that
to regulate commerce; and presuppose the existence of that which
they restrain, not of that which they do not purport to restrain.
But the inspection laws are said to be regulations of com-
merce, and are certainly recognized in the constitution as being
passed in the exercise of a power remaining with the States.
That inspection laws may have a remote and considerable influ-
ence on commerce, will not be denied; but that a power to regu-
late commerce is the source from which the right to pass them
is derived, cannot be admitted. The object of inspection laws
is to improve the quality of articles produced by the labor of
a country, to fit them for exportation, or it may be for domestic
use. They act upon the subject before it becomes an article of
foreign commerce or of commerce among the States, and prepare
it for that purpose. They form a portion of that immense mass
of legislation which embraces everything within the territory of
a State not surrendered to a general government; all which can
be most advantageously exercised by the States themselves. In-
182 CASES ON CONSTITUTIONAL LAW.
spection laws, quarantine laws, health laws of every description,
as well as laws for regulating the internal commerce of a State,
and those which respect turnpike roads, ferries, etc., are com-
ponent parts of this mass.
No direct general power over these objects is granted to con-
gress; and, consequently, they remain subject to State legisla-
tion. If the legislative power of the Union can reach them, it
must be for national purposes; it must be where the power is
expressly given for a special purpose, or is clearly incidental to
some power which is expressly given. It is obvious that the gov-
ernment of the Union, in the exercise of its express powers,
that, for example, of regulating commerce with foreign nations and
among the States, may use means that may also be employed by
a State in the exercise of its acknowledged powers; that, for ex-
ample, of regulating commerce within the State. If congress
license vessels to sail from one port to another in the same State,
the act is supposed to be necessarily incidental to the power ex-
pressly granted to congress, and implies no claim of a direct power
to regulate the purely internal commerce of a State, or to act
directly on its system of police. So if a State, in passing laws
on subjects acknowledged to be within its control, and with a
view to those subjects, shall adopt a measure of the same character
with one which congress may adopt, it does not derive its authority
from the particular power which has been granted, but from some
other which remains with the State, and may be executed by the
same means. All experience shows that the same measureSj or
measures scarcely distinguishable from each other, may flow from
distinct powers; but this does not prove that the powers themselves
are identical. Although the means used in their execution may
sometimes approach each other so nearly as to be confounded, there
are other situations in which they are sufficiently distinct to estab-
lish their individuality.
In our complex system, presenting the rare and difficult scheme
of one general government whose action extends over the whole,
but which possesses only certain enumerated powers; and of
numerous State governments, which retain and exercise all powers
not delegated to the Union, contests respecting power must arise.
Were it even otherwise, the measures taken by the respective gov-
ernments to execute their acknowledged powers would often be
of the same description, and might sometimes interfere. This,
however, does not prove that the one is exercising, or has a right
to exercise, the powers of the other.
GIBBONS v. OGDEN. 183
The acts of congress, passed in 1796 and 1799, 1 empowering and
directing the officers of the general government to conform to,
and assist in, the execution of the quarantine and health laws
of a State, proceed, it is said, upon the idea that these laws are
constitutional. It is undoubtedly true that they do proceed upon
that idea; and the constitutionality of such laws has never, so
far as we are informed, been denied. But they do not imply an
acknowledgment that a State may rightfully regulate commerce
with foreign nations, or among the States; for they do not imply
that such laws are an exercise of that power, or enacted with a view
to it. On the contrary, they are treated as quarantine and health
laws, are so denominated in the acts of congress, and are considered
as flowing from the acknowledged power of a State to provide for
the health of its citizens. But as it was apparent that some of the
provisions made for this purpose, and in virtue of this power,
might interfere with, and be affected by, the laws of the United
States made for the regulation of commerce, congress, in that
spirit of harmony and conciliation which ought always to charac-
terize the conduct of governments standing in the relation .which
that of the Union and those of the States bear to each other, has
directed its officers to aid in the execution of these laws; and has,
in some measure, adapted its own legislation to this object by
making provisions in aid of those of the States. But in making
these provisions the opinion is unequivocally manifested that con-
gress may control the State laws, so far as it may be necessary to
control them, for the regulation of commerce.
The act passed in 1803, 2 prohibiting the importation of slaves
into any State which shall itself prohibit their importation, im-
plies, it is said, an admission that the States possessed the power to
exclude or admit them; from which it is inferred that they pos-
sess the same power with respect to other articles.
If this inference were correct; if this power was exercised, not
under any particular clause in the constitution, but in virtue of a
general right over the subject of commerce, to exist as long as
the constitution itself, it might now be exercised. Any State
might now import African slaves into its own territory. But it is
obvious that the power of the States over this subject, previous
to the year 1808, constitutes an exception to the power of con-
gress to regulate commerce, and the exception is expressed in such
words as to manifest clearly the intention to continue the pre-
existing right of the States to admit or exclude for a limited pe-
1 1 Stats, at Large, 474, 319. 2 3 Stats, at Large, p. 529.
184 CASES ON CONSTITUTIONAL LAW.
riod. The words are, "the migration or importation of such per-
sons as any of the States now existing shall think proper to
admit, shall not be prohibited by the congress prior to the year
1808." The whole object of the exception is, to preserve the power
to those States which might be disposed to exercise it; and its
language seems to "the court to convey this idea unequivocally. The
possession of this particular power, then, during the time limited
in the constitution, cannot be admitted to prove the possession
of any other similar power.
It has been said that the act of August 7, 1789, 3 acknowledges
a concurrent power in the States to regulate the conduct of pilots,
and hence is inferred an admission of their concurrent right with
congress to regulate commerce with foreign nations and amongst
the States. But this inference is not, we think, justified by the
fact. Although congress cannot enable a State to legislate, con-
gress may adopt the provisions of a State on any subject. When
-the government of the Union was brought into existence, it found
a system for the regulation of its pilots in full force in every State.
The a,ct which has been mentioned adopts this system, and gives
it the same validity as if its provisions had been specially made
by congress. But the act, it may be said, is prospective also, and
the adoption of laws to be made in future presupposes the right
in the maker to legislate on the subject.
The act unquestionably manifests an intention to leave this
subject entirely to the States until congress should think proper
to interpose; but the very enactment of such a law indicates
an opinion that it was necessary; that the existing system would
not be applicable to the new state of things unless expressly applied
to it by congress. But this section is confined to pilots within the
"bays, inlets, rivers, harbors, and ports of the United States," which
are, of course, in whole or in part, also within the limits of some
particular State. The acknowledged power of a State to regulate
its police, its domestic trade, and to govern its own citizens, may
enable it to legislate on this subject to a considerable extent; and
the adoption of its system by congress, and the application of it
to the whole subject of commerce, does not seem to the court to
imply a right in the States so to apply it of their own authority.
But the adoption of the State system being temporary, being only
"until further legislative provision shall be made by congress,"
shows conclusively an opinion that congress could control the whole
subject, and might adopt the system of the States, or provide one
of its own.
s 1 Stats, at Large, 54.
GIBBONS v. OGDEN. 185
A State, it is said, or even a private citizen, may construct light-
houses. But gentlemen must be aware that if this proves a power
in a State to regulate commerce, it proves that the same power
is in the citizen. States, or individuals who own lands, may, if
not forbidden by law, erect on those lands what buildings they
please; but this power is entirely distinct from that of regulating
commerce, and may, we presume, be restrained if exercised so as
to produce a public mischief.
These acts were cited at the bar for the purpose of showing an
opinion in congress that the States possess, concurrently with the
legislature of the Union, the power to regulate commerce with
foreign nations and among the States. Upon reviewing them, we
think they do not establish the proposition they were intended
to prove. They show the opinion that the States retain powers
enabling them to pass the laws to which allusion has been made,
not that those laws proceed from the particular power which has
been delegated to congress.
It has been contended by the counsel for the appellant that, as
the word to "regulate" implies in its nature full power over the
thing to be regulated, it excludes, necessarily, the action of all
others that would perform the same operation on the same thing.
That regulation is designed for the entire result, applying to
those parts which remain as they were, as well as to those which
are altered. It produces a uniform whole, which is as much dis-
turbed and deranged by changing what the regulating power de-
signs to leave untouched, as that on which it has operated.
, There is great force in this argument, and the court is not sat-
isfied that it has been refuted.
Since, however, in exercising the power of regulating their own
purely internal affairs, whether of trading or police, the States may
sometimes enact laws, the validity of which depends on their inter-
fering with, and being contrary to, an act of congress passed in
pursuance of the constitution, the court will enter upon the
inquiry whether the laws of New York, as expounded by the high-
est tribunal of that State, have, in their application to this case,
come into collision with an act of congress, and deprived a citizen
of a right to which that act entitles him. Should this collision
exist, it will be immaterial whether those laws were passed in
virtue of a concurrent power "to regulate commerce with foreign
na/tions and among the several States," or, in virtue of a power
to regulate their domestic trade and police. In one case and the
other, the acts of New York must yield to the law of congress, and
186 CASES ON CONSTITUTIONAL LAW.
the decision sustaining the privilege they confer, against a right
given by a law of the Union, must be erroneous. . . .
In pursuing this inquiry a/t the bar, it has been said that the
constitution does not confer the right of intercourse between State
and State. That right derives its source from those laws whose
authority is acknowledged by civilized man throughout the world.
/This is true. The constitution found it an existing right, and
/ gave to congress the power to regulate it. In the exercise of this
power, congress has passed "An act for enrolling or licensing ships
or vessels to be employed in the coasting trade and fisheries, and
for regulating the same." The counsel for the respondent contend
that this act does not give the right to sail from port to port, but
confines itself to regulating a pre-existing right, so far only as to
\ confer certain privileges on enrolled and licensed vessels in its
\exercise.
^ It will at once occur that when a legislature attaches certain
privileges and exemptions to the exercise of a right over which
its control is absolute, the law must imply a power to exercise the
right. The privileges are gone if the right itself be annihilated.
It would be contrary to all reason and to the course of human
affairs to say that a State is unable to strip a vessel of the particu-
lar privileges attendant on the exercise of a right, and yet may
annul the right itself; that the State of New York cannot pre-
vent an enrolled and licensed vessel proceeding from Elizabeth-
town, in New Jersey, to New York, from enjoying, in her course
and on her entrance into port, all the privileges conferred by the act
of congress, but can shut her up in her own port, and prohibit
altogether her entering the waters and ports of another State.
To the court it seems very clear that the whole act on the subject
of the coasting trade, according to those principles which govern
the construction of statutes, implies unequivocally an authority
to licensed vessels to carry on the coasting trade.
But we will proceed briefly to notice those sections which bear
more directly on the subject.
, The first section declares that vessels enrolled by virtue of a pre-
/ vious law, and certain other vessels, enrolled as described in that
/ act, and having a license in force, as is by the act required, "and
no others, shall be deemed ships or vessels of the United States,
\ entitled to the privileges of ships or vessels employed in the coast-
\ ing trade."
V This section seems to the court to contain a positive enactment
that the vessels it describes shall be entitled to the privileges of
ships or vessels employed in the coasting trade. These privileges
GIBBONS v. OGDEN. 187
cannot be separated from the trade, and cannot be enjoyed unless
the trade may be prosecuted. The grant of the privilege is an idle,
empty form, conveying nothing, unless it convey the right to
which the privilege is attached, and in the exercise of which its
whole value consists. To construe these words otherwise than as
entitling the ships or vessels described to carry on the coasting
trade would be, we think, to disregard the apparent intent of
the act.
The 4th section directs the proper officer to grant to a vessel
qualified to receive it, "a license for carrying on the coasting
trade;" and prescribes its form. After reciting the compliance
of the applicant with the previous requisites of the law, the opera-
tive words of the instrument are, "license is hereby granted for the
said steamboat Bellona to be employed in carrying on the coast-
ing trade for one year from the date hereof, and no longei."
These are not the words of the officer; they are the words of
the legislature; and convey as explicitly the authority the act
intended to give, and operate as effectually, as if they had been
inserted in any other part of the act than in the license itself.
The word "license" means permission, or authority; and a
license to do any particular thing is a permission or authority to
do that thing; and if granted by a person having power to grant
it, transfers to the grantee the right to do whatever it purports
to authorize. It certainly transfers to him all the right which
the grantor can transfer to do what is within the terms of the
license. Would the validity or effect of such an instrument be
questioned by the respondent if executed by persons claiming reg-
ularly under the laws of New York?
The license must be understood to be what it purports to be,
a legislative authority to the steamboat Bellona "to be employed
in carrying on the coasting trade for one year from this date."
It has been denied that these words authorize a voyage from
New Jersey to New York. It is true that no ports are specified;
but it is equally true that the words used are perfectly intelligible,
and do confer such authority as unquestionably as if the ports
had been mentioned. The coasting trade is a term well under-
stood. The law has defined it; and all know its meaning per-
fectly. The act describes, with great minuteness, the various op-
erations of a vessel engaged in it; and it cannot, we think, be
doubted that a voyage from New Jersey to New York is one of
those operations.
Notwithstanding the decided language of the license, it has
188 CASES ON CONSTITUTIONAL LAW.
also been maintained that it gives no right to trade, and that its
sole purpose is to confer the American character.
The answer given to this argument, that the American char-
acter is conferred by the enrollment and not by the license, is,
we think, founded too clearly in the words of the law to require
the support of any additional observations. The enrollment of
vessels designed for the coasting trade corresponds precisely with
the registration of vessels designed for the foreign trade, and re-
quires every circumstance which can constitute the American
character. The license can be granted only to vessels already
enrolled, if they be of the burden of twenty tons and upwards, and
requires no circumstance essential to the American character. The
object of the license, then, cannot be to ascertain the character of
the vessel, but to do what it professes to do; that is, to give per-
mission to a vessel already proved by her enrollment to be Amer-
ican to carry on the coasting trade.
But if the license be a permit to carry on the coasting trade,
/ the respondent denies that these boats were engaged in that trade,
/ or that the decree under consideration has restrained them from
/ prosecuting it. The boats of the appellant were, we are told,
employed in the transportation of passengers, and this is no part
I of that commerce which congress may regulate.
V If, as our whole course of legislation on this subject shows, the
power of congress has been universally understood in America to
comprehend navigation, it is a very persuasive, if not a conclu-
sive, argument to prove that the construction is correct; and if
it be correct, no clear distinction is perceived between the power
to regulate vessels employed in transporting men for hire, and
property for hire. The subject is transferred to congress, and no
exception to the grant can be admitted which is not proved by the
words or the nature of the thing. A coasting vessel employed
in the transportation of passengers is as much a portion of the
American marine as one employed in the transportation of a cargo;
and no reason is perceived why such vessel should be withdrawn
from the regulating power of that government, which has been
thought best fitted for the purpose generally. The provisions of
the law respecting native seamen and respecting ownership, are
as applicable to vessels carrying men as to vessels carrying man-
ufactures; and no reason is perceived why the power over the
subject should not be placed in the same hands. The argument
urged at the bar rests on the foundation that the power of con-
, gress does not extend to navigation as a branch of commerce, and
/ can only be applied to that subject incidentally and occasionally.
GIBBONS v. OGDEN. 189
But if that foundation be removed, we must show some plain,
intelligible distinction, supported by the constitution, or by rea-
son, for discriminating between the power of congress over vessels
employed in navigating the same seas. We can perceive no such
distinction.
If we refer to the constitution, the inference to be drawn from
it is rather against the distinction. The section which restrains
congress from prohibiting the migration or importation of such
persons as any of the States may think proper to admit, until the
year 1808, has always been considered as an exception from the
power to regulate commerce, and certainly seems to class migra-
tion with importation. Migration applies as appropriately to vol-
untary, as importation does to involuntary arrivals; and so far
as an exception from a power proves its existence, this section
proves that the power to regulate commerce applies equally to
the regulation of vessels employed in transporting men who pass
from place to place voluntarily, and to those who pass involun-
tarily.
If the power reside in congress, as a portion of the general grant
to regulate commerce, then acts applying that power to vessels
generally must be construed as comprehending all vessels. If none
appear to be excluded by the language of the act, none can be
excluded by construction. Vessels have always been employed, to
a greater or less extent, in the transportation of passengers, and
have never been supposed to be, on that account, withdrawn from
the control or protection of congress. Packets which ply along
the coast, as well as those which make voyages between Europe
and America, consider the transportation of passengers as an im-
portant part of their business. Yet it has never been suspected
that the general laws of navigation did not apply to them.
The Duty Act, sections 23 and 46, 1 contains provisions respect-
ing passengers, and shows that vessels which transport them have
the same rights, and must perform the same duties, with other
vessels. They are governed bv the general laws of navigation.
In the progress of things, this seems to have grown into a par-
ticular employment, and to have attracted the particular atten-
tion of government. Congress was no longer satisfied with com-
prehending vessels engaged specially in this business within those
provisions which were intended for vessels generally; and on the
2d of March, 1819, passed "An act regulating passenger ships and
vessels." 2 This wise and humane law provides for the safety and
1 1 Stats, at Large, 644, 661. 2 3 Stats, at Large, 488.
\
190 CASES ON CONSTITUTIONAL LAW.
comfort of passengers, and for the communication of everything
concerning them which may interest the government, to the de-
partment of State, but makes no provision concerning the entry
of the vessel, or her conduct in the waters of the United States.
This, we think, shows conclusively the sense of congress (if, in-
deed, any evidence to that point could be required), that the pre-
existing regulations comprehended passenger ships among others;
and in prescribing the same duties, the legislature must have con-
sidered them as possessing the same rights.
If, then, it were even true, that The Bellona and The Stoudinger
were employed exclusively in the conveyance of passengers be-
tween New York and New Jersey, it would not follow that this
occupation did not constitute a part of the coasting trade of the
United States, and was not protected by the license annexed to
the answer. But we cannot perceive how the occupation of these
vessels can be drawn into question in the case before the court.
The laws of New York, which grant the exclusive privilege set up,
by the respondent, take no notice of the employment of vessels,
and relate only to the principle by which they are propelled. Those
laws do not inquire whether vessels are engaged in transport-
ing men or merchandise, but whether they are moved by steam
or wind. If by the former, the waters of New York are closed
against them, though their cargoes be dutiable goods, which the
laws of the United States permit them to enter and deliver in
New York. If by the latter, those waters are free to them, though
they should carry passengers only. In conformity with the law,
is the bill of the plaintiff in the state court. The bill does not
complain that The Bellona and The Stoudinger carry passengers,
but that they are moved by steam. This is the injury of which
he complains, and is the sole injury against the continuance of
which he asks relief. The bill does not even allege, specially, that
those vessels were employed in the transportation of passengers,
but says, generally, that they were employed "in the transporta-
tion of passengers, or otherwise." The answer avers only that
they are employed in the coasting trade, and insists on the right to
carry on any trade authorized by the license. No testimony is
taken, and the writ of injunction and decree restrain these licensed
vessels, not from carrying passengers, but from being moved
through the waters of New York by steam, for any purpose what-
eper.
The questions, then, whether the conveyance of passengers be
part of the coasting trade, and whether a vessel can be protected
L that occupation by a coasting license, are not, and cannot be,
GIBBONS v. OGDEN. 191
raised in this case. The real and sole question seems to be, whether
a steam machine, in actual use, deprives a vessel of the privileges
conferred by a license.
In considering this question, the first idea which presents itself,
is that the laws of congress for the regulation of commerce^ do
not look to the principle of which vessels are moved. That sub-
ject is left entirely to individual discretion; and in that vast and
complex system of legislative enactment concerning it, which em-
braces everything which the legislature thought it necessary to
notice, there is not, we believe, one word respecting the peculiar
principle by which vessels are propelled through the water, except
what may be found in a single act, 3 granting a particular privilege
to steamboats. With this exception, every act, either prescribing
duties, or granting privileges, applies to every vessel, whether
navigated by the instrumentality of wind or fire, of sails or ma-
chinery. The whole weight of proof, then, is thrown upon him
who would introduce a distinction to which the words of the law
give no countenance.
If a real difference could be admitted to exist between vessels
carrying passengers and others, it has already been observed that
there is no fact in this case which can bring up that question.
And, if the occupation of steam-boats be a matter of such general
notoriety that the court may be presumed to know it, although
not specially informed by the record, then we deny that the trans-
portation of passengers is their exclusive occupation. It is a mat-
ter of general history, that, in our western waters, their principal
employment is the transportation of merchandise; and all know,
that in the waters of the Atlantic they are frequently so em-
ployed.
But all inquiry into this subject seems to the court to be put
completely at rest, by the act already mentioned, entitled, "An
act for the enrolling and licensing of steamboats."
This act authorizes a steamboat employed, or intended to be
employed, only in a river or bay of the United States, owned
wholly or in part by an alien, resident within the United States, to
be enrolled and licensed as if the same belonged to a citizen of
the United States.
This act demonstrates the opinion of congress, that steamboats
may be enrolled and licensed, in common with vessels using sails.
They are, of course, entitled to the same privileges, and can no
more be restrained from navigating waters, and entering ports
s 2 Stats, at Large, 694.
192 CASES ON CONSTITUTIONAL LAW.
which are free to such vessels, than if they were wafted on their
voyage by the winds, instead of being propelled by the agency of
fire. The one element may be as legitimately used as the other,
for every commercial purpose authorized by the laws of the
Union; and the act of a State inhibiting the use of either to any
vessel having a license under the act of congress, comes, we think,
in direct collision witli that act.
As this decides the cause, it is unnecessary to enter in an
examination of that part of the constitution which empowers con-
gress to promote the progress of science and the useful arts.
[MR. JUSTICE JOHNSON delivered a concurring opinion.]
NOTE. In the courts of New York, the State law had been
upheld as constitutional by Chancellor Kent and his associates.
The reasons for Kent's opinion are given in his Commentaries, i.,
433, 438.
BROWN ET AL. v. THE STATE OF MARYLAND.
12 Wheaton, 419. Decided 1827.
ERROR to the court of appeals of Maryland.
The case is stated in the opinion of the court. . . .
MARSHALL, C. J., delivered the opinion of the court.
This is a writ of error to a judgment rendered in the court of
appeals of Maryland, affirming a judgment of the city court of Bal-
timore, on an indictment found in that court against the plaintiffs
in error, for violating an act of the legislature of Maryland. The
indictment was founded on the 2d section of that act, which is
in these words: "And be it enacted that all importers of foreign
articles or commodities, of dry goods, wares, or merchandise, by
bale or package, or of wine, rum, brandy, whiskey, and other dis-
tilled spirituous liquors, &c., and other persons selling the same by
wholesale, bale or package, hogshead, barrel, or tierce, shall, be-
fore they are authorized to sell, take out a license, as by the orig-
inal act is directed, for which they shall pay fifty dollars; and
in case of neglect or refusal to take out such license, shall be
subject to the same penalties and forfeitures as are prescribed by
the original act to which this is a supplement/' The indictment
charges the plaintiffs in error with having imported and sold one
BROWN v. STATE OF MARYLAND. 193
package of foreign dry goods without having license to do so. A
judgment was rendered against them, on demurrer, for the penalty
which the act prescribes for the offense; and that judgment is now
before this court.
This cause depends entirely on the question whether the legisla-
ture of a State can constitutionally require the importer of foreign
articles to take out a license from the Sta*e, before he shall be
permitted to sell a bale or package so imported.
It has been truly said, that the presumption is in favor of every
legislative act, and -that the whole burden of proof lies on him
who denies its constitutionality. The plaintiffs in error take the
burden upon themselves, and insist that the act under consid-
eration is repugnant to two provisions in the constitution of the
United States.
1. To that which declares that "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."
2. To that which declares that congress shall have power "to
regulate commerce with foreign nations, and among the several
States', and with the Indian tribes."
1. The first inquiry is into the extent of the prohibition upon
States "to lay any imposts or duties on imports or exports." The
counsel for the State of Maryland would cenfine this prohibition
to laws imposing duties on the act of importation or exporta-
tion. The counsel for the plaintiffs in error give them a much
wider scope.
In performing the delicate and important duty of construing
clauses in the constitution of our country, which involve conflict-
ing powers of the government of the Union, and of the respect-
ive States, it is proper to take a view of the literal meaning of
the words to be expounded, of their connection with other words,
and of the general objects to be accomplished by the prohibitory
clause, or by the grant of power.
What, then, is the meaning of the words, "imposts, or duties
on imports or exports?"
An impost, or duty on imports, is a custom or a tax levied on
articles brought into a country, and is most usually secured be-
fore the importer is allowed to exercise his rights of ownership
over them, because evasions of the law can be prevented more
certainly by executing it while the articles are in its custody. It
would not, however, be less an impost or duty on the articles, if
it were to be levied on them after they were landed. The policy
194 CASES ON CONSTITUTIONAL LAW.
and consequent practice of levying or securing the duty before, or
on entering the port, does not limit the power to that state of
things, nor, consequently, the prohibition, unless the true mean-
ing of the clause so confines it. What, then, are "imports"? The
lexicons inform us, they are "things imported." If we appeal to
usage for the meaning of the word, we shall receive the same
answer. They are the articles themselves which are brought into
the country. "A duty on imports," then, is not merely a duty
on the act of importation, but is a duty on the thing imported.
It is not, taken in its literal sense, confined to a duty levied while
the article is entering the country, but extends to a duty levied
after it has entered the country. The succeeding words of the
sentence which limit the prohibition, show the extent in which
it was understood. The limitation is, "except what may be abso-
lutely necessary for executing its inspection laws." Now, the in-
spection laws, so far as they act upon articles for exportation, are
generally executed on land, before the article is put on board the
vessel; so far as they act upon importations, they are generally
executed upon articles which are landed. The tax or duty of
inspection, then, is a tax which is frequently, if not always paid
for service performed on land, while the article is in the bosom
of the country. Yet this tax is an exception to the prohibition
on the States to lay duties on imports or exports. The exception
was made because the tax would otherwise have been within the
prohibition.
If it be a rule of interpretation to which all assent, that the
exception of a particular thing from general words, proves that, in
the opinion of the lawgiver, the thing excepted would be within
the general clause had the exception not been made, we know
no reason why this general rule should not be as applicable to
the constitution as to other instruments. If it be applicable, then
this exception in favor of duties for the support of inspection laws,
goes far in proving that the framers of the constitution classed
taxes of a similar character with those imposed for the purposes
of inspection, with duties on imports and exports, and supposed
them to be prohibited.
If we quit this narrow view of the subject, and passing from the
literal interpretation of the words, look to the objects of the pro-
hibition, we find no reason for withdrawing the act under con-
sideration from its operation.
From the vast inequality between the different States of the
confederacy, as to commercial advantages, few subjects were viewed
with deeper interest, or excited more irritation, than the manner
BROWN v. STATE OF MARYLAND. 195
in which the several States exercised, or seemed disposed to exer-
cise, the power of laying duties on imports. From motives which
were deemed sufficient by the statesmen of that day, the general
power of taxation, indispensably necessary as it was, and jealous
as the States were of any encroachment upon it, was so far abridged
as to forbid them to touch imports or exports, with the single ex-
ception which has been noticed. Why are they restrained from
imposing these duties? Plainly, because, in the general opinion,
the interest of all would be best promoted by placing that whole
subject under the control of congress. Whether the prohibition
to "lay imposts, or duties on imports or exports," proceeded from
an apprehension that the power might be so exercised as to dis-
turb that equality among the States which was generally advan-
tageous, or that harmony between them which it was desirable
to preserve, or to maintain unimpaired our commercial connec-
tions with foreign nations, or to confer this source of revenue on
the government of the Union, or whatever other motive might
have induced the prohibition, it is plain that the object would
be as completely defeated by a power to tax the article in the
hands of the importer the instant it was landed, as by a power to
tax it while entering the port. There is no difference, in effect,
[ between a power to prohibit the sale of an article and a power
to prohibit its introduction into the country. The one would
be a necessary consequence of the other. No goods would be
imported if none could be sold. No object of any description
can be accomplished by laying a duty on importation, which may
not be accomplished with equal certainty by laying a duty on the
thing imported in the hands of the importer. It is obvious, that
the same power which imposes a light duty, can impose a very
heavy one, one which amounts to a prohibition. Questions of
power do not depend on the degree to which it may be exercised.
If it may be exercised at all, it must be exercised at the will
/*of those in whose hands it is placed. If the tax may be levied
i in this form by a State, it may be levied to an extent which will
defeat the revenue by impost, so far as it is drawn from impor-
tations into the particular State. We are told that such wild
and irrational abuse of power is not to be apprehended, and is
not to be taken into view when discussing its existence. All
power may be abused; and if the fear of its abuse is to constitute
an argument against its existence, it might be urged against the
existence of that which is universally acknowledged, and which is
indispensable to the general safety. The States will never be so
ad as to destroy their own commerce, or even to lessen it.
196 CASES ON CONSTITUTIONAL LAW.
We do not dissent from these general propositions. We do not
suppose any State would act so unwisely. But we do not place
the question on that ground.
These arguments apply with precisely the same force against
the whole prohibition. It might, with the same reason, be said
that no State would be so blind to its own interests as to lay
duties on importation which would either prohibit or diminish
its trade. Yet the framers of our constitution have thought this
a power which no State ought to exercise. Conceding, to the full
extent which is required, that every State would, in its legislation
on this subject, provide judiciously for its own interests, it cannot
be conceded that each would respect the interests of others. A
duty on imports is a tax on the article which is paid by the con-
sumer. The great importing States would thus levy a tax on the
non-importing States, which would not be less a tax because their
interest would afford ample security against its ever being so
heavy as to expel commerce from their ports. This would neces-
sarily produce countervailing measures on the part of those States
whose situation was less favorable to importation. For this, among
other reasons, the whole power of laying duties on imports was,
with a single and slight exception, taken from the States. When
we are inquiring whether a particuar act is within this prohi-
bition, the question is not, whether a State may so legislate as to
hurt itself, but whether the act is within the words and mischief
of the prohibitory clause. It has already been shown, that a tax
on the article in the hands of the importer, is within its words;
and we think it too clear for controversy, that the same tax is
within its mischief. We think it unquestionable, that such a tax
has precisely the same tendency to enhance the price of the article,
as if imposed upon it while entering the port.
The counsel for the State of Maryland, insist, with great rea-
son, that if the words of the prohibition be taken in their utmost
latitude, they will abridge the power of taxation, which all admit
to be essential to the States, to an extent which has never yet
been suspected, and will deprive them of resources which are nec-
essary to supply revenue, and which they have heretofore been
admitted to possess. These words must, therefore, be construed
with some limitation; and, if this be admitted, they insist that
entering the country is the point of time when the prohibition
ceases, and the power of the State to tax commences.
It may be conceded, that the words of the prohibition ought
not to be pressed to their utmost extent; that in our complex
system, the object of the powers conferred on the government of
BROWN v. STATE OF MARYLAND. 197
the Union, and the nature of the often conflicting powers which
remain in the States, must always be taken into view, and may
aid in expounding the words of any particular clause. But, while
we admit that sound principles of construction ought to restrain
all courts from carrying the words of the prohibition beyond the
object the constitution is intended .to secure; that there must be
a point of time when the prohibition ceases, and the power of the
State to tax commences; we cannot admit that this point of time
is the instant that the article enters the country. It is, we think,
obvious tha/t this construction would defeat the prohibition.
The. constitutional prohibition on the States to lay a duty on
imports, a prohibition which a vast majority of them must feel
an interest in preserving, may certainly come in conflict with their
acknowledged power to tax persons and property within their
territory. The power, and the restriction on it, though quite
distinguishable when they do not approach each other, may yet,
like the intervening colors between white and black, approach so
nearly as to perplex the understanding, as colors perplex the vision
in marking the distinction between them. Yet the distinction
exists, and must be marked as the cases arise. Till they do arise,
it might be premature to state any rule as being universal in its
application. It is sufficient for the present to say, generally, that
when the importer has so acted upon the thing imported, that it
has become incorporated and mixed up with the mass of property
in the country, it has, perhaps, lost its distinctive character as an
import, and has become subject to the taxing power of the State;
but while remaining the property of the importer, in his ware-
house, in the original form or package in which it was imported,
a tax upon it is too plainly a duty on imports to escape the prohi-
bition in the constitution.
The counsel for the plaintiffs in error contend that the importer
purchases, by payment of the duty to the United States, a right
to dispose of his merchandise, as well as to bring it into the
country; and certainly the argument is supported by strong rea-
son, as well as by the practice of nations, including our own. The
object of importation is sale; it constitutes the motive for paying
the duties; and if the United States possess the power of confer-
ring the right to sell, as the consideration for which the duty is
paid, every principle of fair dealing requires that they should be
understod to confer it. The practice of the most commercial na-
tions conforms to this idea. Duties, according to that practice, are
charged on those articles only which are intended for sale or con-
sumption in the country. Thus, sea stores, goods imported and
198 CASES ON CONSTITUTIONAL LAW.
re-exported in the same vessel, goods landed and carried over land
for the purpose of being re-exported from some other port, goods
forced in by stress of weather, and landed, but not 'for sale, are
exempted from the payment of duties. The whole course of legis-
lation on the subject shows that, in the opinion of the legislature,
the right to sell is connected with the payment of duties.
The counsel for the defendant in error have endeavored to illus-
trate their proposition, that the constitutional prohibition ceases
the instant the goods enter the country, by an array of the conse-
quences which they suppose must follow the denial of it. If the
importer acquires the right to sell by the payment of duties, he
may, they say, exert that right when, where, and as he pleases,
and the State cannot regulate it. He may sell by retail, at auction,
or as an itinerant peddler. He may introduce articles, as gun-
powder, which endanger a city, into the midst of its population;
he may introduce articles which endanger the public health, and
the power of self-preservation is denied. An importer may bring
in goods, as plate, for his own use, and thus retain much valuable
property exempt from taxation.
These objections to the principle, if well founded, would cer-
tainly be entitled to serious consideration. But we think they
will be found, on examination, not to belong necessarily to the
principle, and, consequently, not to prove that it may not be re-
sorted to with safety as a criterion by which to measure the extent
of the prohibition.
/ This indictment is against the importer, for selling a package of
dry goods in the form in which it was imported, without a license.
This state of things is changed if he sells them, or otherwise
mixes them with the general property of the State, by breaking
up his packages, and traveling with them as an itinerant peddler.
In the first case, the tax intercepts the import, as an import a in
its way to become incorporated with the general mass of property,
and denies it the privilege of becoming so incorporated until it
shall have contributed to the revenue of the State. It denies to
the importer the right of using the privilege which he has pur-
chased from the United States, until he shall have also purchased
it from the State. In the last cases, the tax finds the article al-
ready incorporated with the mass of property by the act of the
importer. He has used the privilege he has purchased, and has
himself mixed them up with the common mass, and the law may
treat them as it finds them. The same observations apply to plate,
or other furniture used by the importer.
So, if he sells by auction. Auctioneers are persons licensed by
BROWN v. STATE OF MARYLAND. 199
the State, and if the importer chooses to employ them, he can as
little object to paying for this service, as for any other for which
he may apply to an officer of the State. The right of sale may
very well be annexed to importation, without annexing to it, also,
the privilege of using the officers licensed by the State to make
sales in a peculiar way.
The power to direct the removal of gunpowder is a branch of
the police power, which unquestionably remains, and ought to
remain, with the States. If the possessor stores it himself out of
town, the removal cannot be a duty on imports, because it con-
tributes nothing to the revenue. If he prefers placing it in a
public magazine, it is because he stores it there, in his own opin-
ion, more advantageously than elsewhere. We are not sure that
this may not be classed among inspection laws. The removal or
destruction of infectious or unsound articles is, undoubtedly, an
exercise of that power, and forms an express exception to the pro-
hibition we are considering. Indeed, the laws of the United
States expressly sanction the health laws of a State.
The principle, then, for which the plaintiffs in error contend,
that the importer acquires a right, not only to bring the articles
into the country, but to mix them with the common mass of prop-
erty, does not interfere with the necessary power of taxation which
is acknowledge to reside in the States, to that dangerous extent
which the counsel for the defendants in error seem to apprehend.
It carries the prohibition in the constitution no further than to
prevent the States from doing that which it was the great object
of the constitution to prevent.
But if it should be proved, that a duty on the article itself
would be repugnant to the constitution, it is still argued that this
is not a tax upon the article, but on the person. The State, it is
said, may tax occupations, and this is nothing more.
It is impossible to conceal from ourselves that this is varying
the form without varying the substance. It is treating a prohibi-
tion which is general, as if it were confined to a particular mode
of doing the forbidden thing. All must perceive that a tax on
the sale of an article, imported only for sale, is a tax on the article
itself. It is true the State may tax occupations generally, but this
.tax must be paid by those who employ the individual, or is a tax
on his business. The lawyer, the physician, or the mechanic,
must either charge more on the article in which he deals, or the
thing itself is taxed through his person. This the State has a
right to do, because no constitutional prohibition extends to it.
So, a tax on the occupation of an importer is, in like manner, a
200 CASES ON CONSTITUTIONAL LAW.
tax on importation. It must add to the price of the article,
and be paid by the consumer, or by the importer himself, in like
manner as a direct duty on the article itself would be made.
This the State has not a right to do, because it is prohibited by
the constitution.
In support of the argument that the prohibition ceases the in-
stant the goods are brought into the country, a comparison has
been drawn between the opposite words export and import. As,
to export, it is said, means only to carry goods out of the country;
so, to import, means only to bring them into it. But, suppose we
extend this comparison to the two prohibitions. The States are
forbidden to lay a duty on exports, and the United States are for-
bidden to lay a tax or duty on articles exported from any State.
There is some diversity in language, but none is perceivable in the
act which is prohibited. The United States have the same right
to tax occupations which is possessed by the States. Now, sup-
pose the United States should require every exporter to take out a
license, for which he should pay such tax as congress might think
proper to impose; would government be permitted to shield itself
from the just censure to which this attempt to evade the prohibi-
tions of the constitution would expose it, by saying that this was
a tax on the person, not on the article, and that the legislature
had a right to tax occupations? Or, suppose revenue cutters were
to be stationed off the coast for the purpose of levying a duty on all
merchandise found in vessels which were leaving the United States
for foreign countries; would it be received as an excuse for this
outrage, were the government to say that exportation meant no
more than carrying goods out of the country, and as the pro-
hibition to lay a tax on imports, or things imported, ceased the
instant they were brought into the country, so the prohibition to
tax articles exported ceased when they were carried out of the
country?
We think, then, that the act under which the plaintiffs in error
were indicted, is repugnant to that article of the constitution
which declares that "no State shall lay any impost or duties on
imports or exports."
2. Is it also repugnant to that clause in the constitution which
empowers "congress to regulate commerce with foreign nations,
and among the several States, and with the Indian tribes"?
The oppressed and degraded state of commerce previous to the
adoption of the constitution can scarcely be forgotten. It was
regulated by foreign nations with a single view to their own inter-
ests; and our disunited efforts to counteract their restrictions
BROWN v. STATE OF MARYLAND. 201
were rendered impotent by want of combination. Congress, in-
deed, possessed the power of making treaties; but the inability of
the federal government to enforce them had become so apparent
as to render that power in a great degree useless. Those who felt
the injury arising from this state of things, and those who were
capable of estimating the influence of commerce on the prosperity
of nations, perceived the necessity of giving the control over this
important subject to a single government. It may be doubted
whether any of the evils proceeding from the feebleness of the
federal government, contributed more to that great revolution
which introduced the present system, than the deep and general
conviction that commerce ought to be regulated by congress. It
is not, therefore, matter of surprise that the grant should be as
extensive as the mischief, and should comprehend all foreign com-
merce, and all commerce among the States. To construe the
power so as to impair its efficacy, would tend to defeat an object,
in the attainment of which the American public took, and justly
took, that strong interest which arose from a full conviction of
its necessity.
What, then, is the just extent of a power to regulate commerce
with foreign nations, and among the several States?
This question was considered in the case of Gibbons v. Ogden,
9 Wheat. Rep., 1, in which it was declared to be complete in itself,
and to acknowledge no limitations other than are prescribed by
the constitution. The power is co-extensive with the subject on
which it acts, and cannot be stopped at the external boundary of
a State, but must enter its interior.
We deem it unnecessary now to reason in support of these
propositions. Their truth is proved by facts continually before
our eyes, and was, we think, demonstrated, if they could require
demonstration, in the case already mentioned.
If this power reaches the interior of a State, and may be there
exercised, it must be capable of authorizing the sale of those
articles which it introduces. Commerce is intercourse: one of
its most ordinary ingredients is traffic. It is inconceivable, that
the power to authorize this traffic, when given in the most com-
prehensive terms, with the intent that its efficacy should be com-
plete, should cease at the point when its continuance is indis-
pensable to its value. To what purpose should the power to
allow importation be given, unaccompanied with the power to
authorize a sale of the thing imported? Sale is the object of im-
portation, and is an essential ingredient of that intercourse, of
which importation constitutes a part. It is as essential an ingre-
CASES ON CONSTITUTIONAL LAW..
client, as indispensable to the existence of the entire thing, then,
as importation itself. It must be considered as a component part
of the power to regulate commerce. Congress has a right, not
only to authorize importation, but to authorize the importer to
sell.
If this be admitted, and we think it cannot be denied, what can
be the meaning of an act of congress which authorizes importa-
tion, and offers the privilege for sale at a fixed, price to every per-
son who chooses to become a purchaser? How is it to be construed,
if an intent to deal honestly and fairly, an intent as wise as it is
moral, is to enter into the construction? What can be the use of
the contract, what does the importer purchase, if he does not
purchase the privilege to sell?
What would be the language of a foreign government, which
should be informed that its merchants, after importing according
to law, were forbidden to sell the merchandise imported? What
answer would the United States give to the complaints and just
reproaches to which such an extraordinary circumstance would
expose them? No apology could be received, or even offered.
Such a state of things would break up commerce. It will not
meet this argument', to say, that this state of things will never be
produced; that the good sense of the States is a sufficient security
against it. The constitution has not confided this subject to that
,good sense. It is placed elsewhere. The question is, where does
the power reside? not, how far will it be probably abused? The
power claimed by the State. is.,, in its nature, in conflict with that
given to congress; and the greater or less extent in which it may,
be exercised does not enter into the inquiry concerning its exist-
ence.
We think, then, that if the power to authorize a sale exists in
congress, the conclusion that the right to sell is connected with,
the law permitting importation, as an inseparable incident, is
inevitable.
If the principles we have stated be correct, the result to which
they conduct us cannot be mistaken. Any penalty inflicted on
the importer for selling the article, in his character of importer,
must be in opposition to the act of congress which authorizes im-
portation. Any charge on the introduction and incorporation of
the articles into and with the mass of property in the country,
must be hostile to the power of congress to regulate commerce,
since an essential part of that regulation, and principal object of
it, is, to prescribe the regular means for accomplishing that intro-
duction and incorporation.
BROWN v. STATE OF MARYLAND. 203
The distinction between a tax on the thing imported and on the
person of the importer, can have no influence on this part of the
subject. It is too obvious for controversy that they interfere
equally with the power to regulate commerce.
It has been contended that this construction of the power to
regulate commerce, as was contended in construing the prohibi-
tion to lay duties on imports, would abridge the acknowledged
power of a State to tax its own citizens, or their property within
its territory.
We admit this power to be sacred; but cannot admit that it
ay be used so as to obstruct the free course of a power given to
congress. We cannot admit that it may be used so as to obstruct
or defeat the power to regulate commerce. It has been observed
that the powers remaining with the States may be so exercised
as to come in conflict with those vested in congress. When this
happens, that which is not supreme must yield to that which is
supreme. This great and universal truth is inseparable from the
nature of things, and the constitution has applied it to the often
interfering powers of the general and state governments, as a vital
principle of perpetual operation. It results, necessarily, from this
^principle, that the taxing power of the States must have some
limits. It cannot reach and restrain the action of the national
government within its proper sphere. It cannot reach the admin-
istration of justice in the courts of the Union, or the collection of
the taxes of the United States, or restrain the operation of any
law which congress may constitutionally pass. It cannot interfere
with any regulation of commerce. If the States may tax all per-
sons and property found on their territory, what shall restrain
them from taxing goods in their transit through the State from
one part to another, for the purpose of re-exportation? The laws
of trade authorize this operation, and general convenience re-
quires it. Or what should restrain a State from taxing any article
passing through it, from one State to another, for the purpose of
traffic? or from taxing the transportation of articles passing from
the State itself to another State for commercial purposes? These
cases are all within the sovereign power of taxation, but would obr
viously derange the measures of congress to regulate commerce,
and affect materially the purpose for which that power was given.
We deem it unnecessary to press this argument further, or to give
additional illustrations of it, because the subject was taken up
and considered with great attention, in McCulloch v. The State of
Maryland, 4 W., 316, the decision in which case is, we think, en-
tirely applicable to this.
204 CASES ON CONSTITUTIONAL LAW.
It may be proper to add that we suppose the principles laid
down in this case to apply equally to importations from a sister
State. We do not mean to give any opinion on a tax discriminat-
ing between foreign and domestic articles.
We think there is error in the judgment of the court of appeals
of the State of Maryland, in affirming the judgment of the Balti-
more city court, because the act of the legislature of Maryland,
imposing the penalty for which the said judgment is rendered, is
repugnant to the constitution of the United States, and, conse-
quently, void. The judgment is to be reversed, and the cause
remanded to that court, with instructions to enter judgment in
favor of the appellants.
[MB. JUSTICE THOMPSON gave a dissenting opinion.]
LICENSE CASES.
THURLOW v. THE COMMONWEALTH OF MASSACHU-
SETTS.
FLETCHER v. THE STATE OF RHODE ISLAND.
PEIRCE ET AL. v. THE STATE OF NEW HAMPSHIRE.
5 Howard, 504. Decided 1846.
These three cases came up on writs of error under the 25th sec-
tion of the judiciary act of 1789, 1 and were argued together. . . .
It is not deemed necessary to set out the statutes on which the
indictments were found. Their substance and effect are clearly
stated by the chief justice, as well as by the other judges, in their
opinions, and there was no controversy concerning their construc-
tion, or meaning and effect.
No opinion of the court was pronounced. Each justice gave
his own reasons for affirming the decision of the state courts.
TANET, C. J. In the cases of Thurlow v. The State of Massa-
chusetts, of Fletcher v. The State of Rhode Island, and of Peirce
et al. v. The State of New Hampshire, the judgments of the re-
spective state courts are severally affirmed.
1 1 Stats, at Large, 85.
LICENSE CASES. 205
The justices of this court do not, however, altogether agree in
the principles upon which these cases are decided, and I there-
fore proceed to state the grounds upon which I concur in affirm-
ing the judgments. The first two of these cases depend upon pre-
cisely the same principles; and, although the case against the
State of New Hampshire differs in some respects from the others,
yet there are important principles common to all of them, and
on that account it is more convenient to consider them together.
Each of the cases has arisen upon state laws, passed for the pur-
pose of discouraging the use of ardent spirits within their re-
spective territories, by prohibiting their sale in small quantities,
and without licenses previously obtained from the state authori-
ties. And the validity of each of them has been drawn in ques-
tion, upon the ground that it is repugnant to that clause of the
constitution of the United States which confers upon congress the
power to regulate commerce with foreign nations, and among the
several States. . . .
The constitution of the United States declares that that consti-
tution, and the laws of the United States which shall be made in
pursuance thereof, and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme
law of the land. It follows that a law of congress, regulating com-
merce with foreign nations, or among the several States, is the
supreme law; and if the law of a State is in conflict with it, the
law of congress must prevail, and the state law cease to operate
so far as it is repugnant to the law of the United States.
It is equally clear that the power of congress over this subject
does not extend further than the regulation of commerce with
foreign nations and among the several States; and that beyond
these limits, the States have never surrendered their power over
trade and commerce, and may still exercise it, free from any con-
trolling power on the part of the general government. Every
State, therefore, may regulate its own internal traffic, according
to its own judgment, and upon its own views of the interest and
well-being of its citizens.
I am not aware that these principles have ever been ques-
tioned. The difficulty has always arisen on their application; and
that difficulty is now presented in the Rhode Island and Massa-
chusetts cases, where the question is, how far a State may regulate
or prohibit the sale of ardent spirits, the importation of which
from foreign countries has been authorized by congress. Is such
a law a regulation of foreign commerce, or of the internal traffic
of the State?
206 CASES ON CONSTITUTIONAL LAW.
It is unquestionably no easy task to mark, by a certain and
definite line, the division between foreign and domestic commerce,
and to fix the precise point, in relation to every imported article,
where the paramount power of congress terminates, and that of
the State begins. The constitution itself does not attempt to
define these limits. They cannot be determined by the laws of
congress or the States, as neither can, by its own legislation, en-
large its own powers, or restrict those of the other. And as the
constitution itself does not draw the line, the question is neces-
sarily one for judicial decision, and depending altogether upon
the words of the constitution.
This question came directly before the court, for the first time,
in the case of Brown v. The State of Maryland, 12 Wheat., 419.
And the court there held that an article authorized by a law of
congress to be imported, continued to be a part of the foreign com-
merce of the country while it remained in the hands of the im-
porter for sale, in the original bale, package, or vessel in which
it was imported; that the authority given to import necessarily
carried with it the right to sell the imported article in the form
and shape in which it was imported; and that no State, either
by direct assessment, or by requiring a license from the importer
before he was permitted to sell, could impose any burden upon him
or the property imported beyond what the law of congress had
itself imposed; but that, when the original package was broken
up, for use or for retail by the importer, and also when the com-
modity had passed from his hands into the hands of a purchaser,
it ceased to be an import, or a part of foreign commerce, and be-
came subject to the laws of the State, and might be taxed for
state purposes, and the sale regulated by the State, like any other
property. This I understand to be substantially the decision in
the case of Brown v. The State of Maryland, drawing the line
between foreign commerce, which is subject to the regulation of
congress, and internal or domestic commerce, which belongs to
the States, and over which congress can exercise no control.
I argued the case in behalf of the State, and endeavored to
maintain that the law of Maryland, which required the importer
as well as other dealers to take out a license before he could sell,
and for which he was to pay a certain sum to the State, was valid
and constitutional; and certainly I at that time persuaded myself
that I was right, and thought the decision of the court restricted
the powers of the State more than a sound construction of the
constitution of the United States would warrant. But further and
more mature reflection has convinced me that the rule laid down
LICENSE CASES. 20?
by the supreme court is a just and safe one, and perhaps the best
that could have been adopted for preserving the right of the
United States on the one hand, and of the States on the other,
and preventing collision between them. The question, I have
already said, was a very difficult one for the judicial mind. In
the nature of things, the line of division is in some degree vague
and indefinite, and I do not see how it could be drawn more
accurately and correctly, or more in harmony with the obvious
intention and object of this provision in the constitution. Indeed,
goods imported, while they remain in the hands of the importer,
in the form and shape in which they were brought into the coun-
try, can in no just sense be regarded as a part of that mass of prop-
erty in the State usually taxed for the support of the state govern-
ment. The immense amount of foreign products used and con-
sumed in this country are imported, landed, and offered for sale
in a few commercial cities, and a very small portion of them are
intended or expected to be used in the State in which they are
imported. A great (perhaps the greater) part imported, in some
of the cities, is not owned or brought in by citizens of the State,
but by citizens of other States, or foreigners. And while they
are in the hands of the importer for sale, in the form and shape
in which they were introduced, and in which they are intended to
be sold, they may be regarded as merely in transitu, and on their
way to the distant cities, villages, and country for which they are
destined, and where they are expected to be used and consumed,
and for the supply of which they were in truth imported. And a
tax upon them while in this condition, for state purposes, whether
by direct assessment or, indirectly, by requiring a license to sell,
would be hardly more justifiable in principle than a transit duty
upon the merchandise when passing through a State. A tax in any
shape upon imports is a tax on the consumer, by enhancing the
price of the commodity. And if a State is permitted to levy it in
any form, it will put it in the power of a maritime importing
State to raise a revenue for the support of its own government
from citizens of other States, as certainly and effectually as if the
tax was laid openly and without disguise as a duty on imports.
Such a power in a State would defeat one of the principal ob-
jects of forming and adopting the constitution. It cannot be done
directly, in the shape of a duty on imports, for that is expressly
prohibited. And as it cannot be done directly, it could hardly
be a just and sound construction of the constitution which would
enable a State to accomplish precisely the same thing under an-
other name, and in a different form.
208 CASES ON CONSTITUTIONAL LAW.
Undoubtedly a State may impose a tax upon its citizens in
proportion to the amount they are respectively worth; and the
importing merchant is liable to this assessment like any other
citizen, and is chargeable according to the amount of his prop-
erty, whether it consist of money engaged in trade, or of imported
goods which he proposes to sell, or any other property of which
he is the owner. But a tax of this description stands upon a
very different footing from a tax on the thing imported, while it
remains a part of foreign commerce, and is not introduced into
the general mass of property in the State. Nor, indeed, can it
even influence materially the price of the commodity to the con-
sumer, since foreigners, as well as citizens of other States, who
are not chargeable with the tax, may import goods into the same
place and offer them for sale in the same market, and with whom
the resident merchant necessarily enters into competition.
Adopting, therefore, the rule as laid down in Brown v. The
State of Maryland, 12 W., 419, I proceed to apply it to the cases
of Massachusetts and Rhode Island. The laws of congress regu-
lating foreign commerce authorize the importation of spirits, dis-
tilled liquors, and brandy, in casks or vessels not containing less
than a certain quantity, specified in the laws upon this subject.
Now, if the state laws in question came in collision with those
acts of Congress, and prevented or obstructed the importation or
sale of these articles by the importer in the original cask or vessel
in which they were imported, it would be the duty of this court
to declare them void.
It has, indeed, been suggested, that, if a State deems the traffic
in ardent spirits to be injurious to its citizens, and calculated to
introduce immorality, vice, and pauperism into the State, it may
constitutionally refuse to permit its importation, notwithstand-
ing the laws of congress; and that a State may do this upon the
same principles that it may resist and prevent the introduction
of disease, pestilence, or pauperism from abroad. But it must be
remembered that disease, pestilence, and pauperism are not sub-
jects of commerce, although sometimes among its attendant evils.
They are not things to be regulated and trafficked in, but to be
prevented, as far as human foresight or human means can guard
against them. But spirits and distilled liquors are universally
admitted to be subjects of ownership and property, and are there-
fore subjects of exchange, barter, and traffic, like any other com-
modity in which a right of property exists. And congress, under
its general power to regulate commerce with foreign nations, may
prescribe what article of merchandise shall be admitted, and what
LICENSE CASES. 209
excluded; and may therefore admit, or not, as it shall seem best,
the importation of ardent spirits. And inasmuch as the laws of
congress authorize their importation, no State has a right to pro-
hibit their introduction.
But I do not understand the law of Massachusetts or Ehode
Island as interfering with the trade in ardent spirits while the
article remains a part of foreign commerce, and is in the hands of
the importer for sale, in the cask or vessel in which the laws of
congress authorize it to be imported. These state laws act alto-
gether upon the retail or domestic traffic within their respective
borders. They act upon the article after it has passed the line of
foreign commerce, and become a part of the general mass of
property in the State. These laws may, indeed, discourage im-
ports, and diminish the price which ardent spirits would otherwise
bring. But although a State is bound to receive and to permit
the sale by the importer of any article of merchandise which con-
gress authorizes to be imported, it is not bound to furnish a
market for it, nor to abstain from the passage of any law which it
may deem necessary or advisable to guard the health or morals
of its citizens, although such law may discourage importation, or
diminish the profits of the importer, or lessen the revenue of the
general government. And if any State deems the retail and in-
ternal traffic in ardent spirits injurious to its citizens, and calcu-
lated to produce idleness, vice, or debauchery, I see nothing in
the constitution of the United States to prevent it from regulat-
ing and restraining the traffic, or from prohibiting it altogether,
if it thinks proper. Of the wisdom of this policy, it is not my
province or my purpose to speak. Upon that subject, each State
must decide for itself. I speak only of the restrictions which the
constitution and laws of the United States have imposed upon the
States. And as the laws of Massachusetts and Rhode Island are
not repugnant to the constitution of the United States, and do
not come in conflict with any law of congress passed in pursuance
of its authority to regulate commerce with foreign nations and
among the several States, there is no ground upon which this
court can declare them to be void.
I now come to the New Hampshire case, in which a different
principle is involved, the question, however, arising under the
same clause in the constitution, and depending on its construction.
The law of New Hampshire prohibits the sale of distilled spirits,
in any quantity, without a license from the selectmen of the town
in which the party resides. The plaintiffs in error, who were
merchants in Dover, in New Hampshire, purchased a barrel of
14
210 CASES ON CONSTITUTIONAL LAW.
gin in Boston, brought it to Dover, and sold it in the cask in which
it was imported, without a license from the selectmen of the town.
For this sale they were indicted, convicted, and fined, under the
law above mentioned.
The power to regulate commerce among the several States is
granted to congress in the same clause, and by the same words, as
the power to regulate commerce with foreign nations, and is co-
extensive with it. And, according to the doctrine in Brown v.
Maryland, the article in question, at the time of the sale, was sub-
ject to the legislation of congress.
The present case, however, differs from Brown v. The State of
Maryland in this, that the former was one arising out of com-
merce with foreign nations, which congress had regulated by law;
whereas the present is a case of commerce between two States, in
relation to which congress has not exercised its power. Some acts
of congress have indeed been referred to in relation to the coasting
trade. But they are evidently intended merely to prevent smug-
gling, and do not regulate imports or exports from one State to
another. This case differs also from the cases of Massachusetts
and Ehode Island; because, in these two cases, the laws of the
States operated upon the articles after they had passed beyond
the limits of foreign commerce, and consequently were beyond the
control and power of congress. But the law of New Hampshire
acts directly upon an import from one State to another, while in
the hands of the importer for sale, and is therefore a regulation of
commerce, acting upon the article while it is within the admitted
jurisdiction of the general government, and subject to its control
and regulation.
The question therefore brought up for decision is, whether a
State is prohibited by the constitution of the United States from
making any regulations of foreign commerce, or of commerce with
another State, although such regulation is confined to its own ter-
ritory and made for its own convenience or interest, and does not
come in conflict with any law of congress. In other words, wheth-
er the grant of power to congress is of itself a prohibition to the
States, and renders all state laws upon the subject null and void.
This is the question upon which the case turns; and I do not see
how it can be decided upon any other ground, provided we adopt
the line of division between foreign and domestic commerce as
marked out by the court in Brown v. The State of Maryland. I
proceed, therefore, to state my opinion upon it.
It is well known that upon this subject a difference of opinion
has existed, and still exists, among the members of this court.
LICENSE CASES. 211
But with every respect for the opinion of my brethren with whom
I do not agree, it appears to me to be very clear, thai the mere
grant of power to the general government cannot, upon any just
principles of construction, be construed to be an absolute prohibi-
tion to the exercise of any power over the same subject by the
States. The controlling and supreme power over commerce with
foreign nations and the several States is undoubtedly conferred
upon congress. Yet, in my judgment, the State may, neverthe-
less, for the safety or convenience of trade, or for the protection
of the health of its citizens, make regulations of commerce for its
own ports and harbors, and for its own territory; and such regula-
tions are valid unless they come in conflict with a law of congress.
Such evidently, I think, was the construction which the consti-
tution universally received at the time of its adoption, as appears
from the legislation of congress and of the several States; and a
careful examination of the decisions of this court will show,, that,
so far from sanctioning the opposite doctrine, they recognize and
maintain the power of the States.
The language in which the grant of power to the general govern-
ment is made, certainly furnishes no warrant for a different con-
struction, and there is no prohibition to the States. Neither can
it be inferred by comparing the provisions upon this subject with
those that relate to other powers granted by the constitution to
the general government. On the contrary, in many instances,
after the grant is made, the constitution ^proceeds to prohibit the
exercise of the same power by the States in express terms; in
some cases absolutely, in others without the consent of congress.
And if it was intended to forbid the States from making any reg-
ulations of commerce, it is difficult to account for the omission to
prohibit it, when that prohibition has been so carefully and dis-
tinctly inserted in relation to other powers, where the action of
the State over the same subject was intended to be entirely ex-
cluded. But if, as I think, the framers of the constitution (know-
ing that a multitude of minor regulations must be necessary,
Avhich congress amid its great concerns could never find time to
consider and provide) intended merely to make the power of the
federal government supreme upon this subject over that of the
States, then the omission of any prohibition is accounted for, and
is consistent with the whole instrument. The supremacy of 'the
laws of congress, in cases of collision with state laws, is secured
in the article which declares that the laws of congress, passed in
pursuance of the powers granted, shall be the supreme law; and
it is only where both governments may legislate on the same sub-
212 CASES ON CONSTITUTIONAL LAW.
ject that this article may operate. For if the mere grant of power
to the general government was in itself a prohibition to the States,
there would seem to be no necessity for providing for the suprem-
acy of the laws of congress, as all state laws upon the subject
would be ipso facto void, and there could, therefore, be no such
thing as conflicting laws, nor any question about the supremacy of
conflicting legislation. It is only where both may legislate on the
subject that the question can arise.
I have said that the legislation of congress and the States has
conformed to this construction from the foundation of the gov-
ernment. This is sufficiently exemplified in the laws in relation
to pilots and pilotage, and the health and quarantine laws.
In relation to the first, they are admitted on all hands to be-
long to foreign commerce, and to be subject to the regulations of
congress, under the grant of power of which we are speaking.
Yet they have been continually regulated by the maritime States,
as fully and entirely since the adoption of the constitution as
they were before; and there is but one law of congress 1 making
any specific regulation upon the subject, and that passed as late
as 1837, and intended, as it is understood, to alter only a single
provision of the New York law, leaving the residue of its
provisions entirely untouched. It is true, that the act of
1789 2 provides that pilots shall continue to be regulated by
the laws of the respective States then in force, or which
may thereafter be passed, until congress shall make provision on
the subject. And undoubtedly congress had the power, by assent-
ing to the state laws then in force, to make them its own, and
thus make the previous regulations of the States the regulations
of the general government. But it is equally clear, that, as to all
future laws by the States, if the constitution deprived them of the
power of making any regulations on the subject, an act of con-
gress could not restore it. For it will hardly be contended that
an act of congress can alter the constitution, and confer upon a
State a power which the constitution declares it shall not possess.
And if the grant of power to the United States to make regula-
tions of commerce is a prohibition to the States to make any regu-
lation upon the subject, congress could no more* restore to the
States the power of which it was thus deprived, than it could
authorize them to coin money, or make paper money a tender
in the payment of debts, or to do any other act forbidden to them
by the constitution. Every pilot law in the commercial States
i 5 Stats, at Large, 153. 2 i ibid., 54.
LICENSE CASES. 213
has, it is believed, been either modified or passed since the act of
1789 adopted those then in force; and the provisions since made
are all void, if the restriction on the power of the States now con-
tended for should be maintained; and the regulations made, the
duties imposed, the securities required, and penalties inflicted by
these various state laws are mere nullities, and could not be en-
forced in a court of justice. It is hardly necessary to speak of the
mischiefs which such a construction would produce to those who
are engaged in shipping, navigation, and commerce. Up to this
time their validity has never been questioned. On the contrary,
they have been repeatedly recognized and upheld by the decisions
of this court; and it will be difficult to show how this can be
done, except upon the construction of the constitution which I
am now maintaining. So, also, in regard to health and quaran-
tine laws. They have been continually passed by the States ever
since the adoption of the constitution, and the power to pass them
recognized by acts of congress, and the revenue officers of the
general government directed to assist in their execution. Yet all
of these health and quarantine laws are necessarily, in some de-
gree, regulations of foreign commerce in the ports and harbors
of the State. They subject the ship, and cargo, and crew to the
inspection of a health officer appointed by the State; they prevent
the crew and cargo from landing until the inspection is made,
and destroy the cargo if deemed dangerous to health. And dur-
ing all this time the vessel is detained at the place selected for the
quarantine ground by the state authority. The expenses of these
precautionary measures are also usually, and I believe universally,
charged upon the master, the owner, or the ship, and the amount
regulated by the state law, and not by congress. Now, so far as
these laws interfere with shipping, navigation, or foreign com-
merce, or impose burdens upon either of them, they are unques-
tionably regulations of commerce. Yet, as I have already said,
the power has been continually exercised by the States, has been
continually recognized by congress ever since the adoption of the
constitution, and constantly affirmed and supported by this court
whenever the subject came before it.
The decisions of this court will, also, in my opinion, when care-
fully examined, be found to sanction the construction I am main-
taining. It is not my purpose to refer to all of the cases in which
this question has been spoken of, but only to the principal and
leading ones; and,
First, to Gibbons v. Ogden, 9 Wheat., 1, because this is the
case usually referred to and relied on to prove the exclusive power
214 CASES ON CONSTITUTIONAL LAW.
of congress and the prohibition to the States. It is true that one
or two passages in that opinion, taken by themselves, and de-
tached from the context, would seem to countenance this doctrine.
And, indeed, it has always appeared to me that this controversy
has mainly arisen out of that case, and that this doctrine of the
exclusive power of congress, in the sense in which it is now con-
tended for, is comparatively a modern one, and was never seriously
put forward in any case until after the decision of Gibbons v.
Ogden, although it has been abundantly discussed since. Still,
it seems to me to be clear, upon a careful examination of that case,
that the expressions referred to do not warrant the inference
drawn from them, and were not used in the sense imputed to
them; and that the opinion in that case, when taken altogether
and with reference to the subject-matter before the court, estab-
lishes the doctrine that a State may, in the execution of its powers
of internal police, make regulations of foreign commerce; and that
such regulations are valid, unless they come into collision with a
law of congress. Upon examining that opinion, it will be seen
that the court, when it uses the expressions which are supposed
to countenance the doctrine of exclusive power in congress, is com-
menting upon the argument of counsel in favor of equal powers
on this subject in the States and the general government, where
neither party is bound to yield to the other; and is drawing the
distinction between cases of concurrent powers and those in which
the supreme or paramount power was granted to congress. It
therefore very justly speaks of the States as exercising their own
powers in laying taxes for state purposes, although the same thing
is taxed by congress; and as exercising the powers granted to
congress when they make regulations of commerce. In the first
case, the state power is concurrent with that of the general gov-
ernment, is equal to it, and is not bound to yield. In the second,
it is subordinate and subject to the superior and controlling power
conferred upon congress.
Moreover the court distinctly admits, on pages 205, 206, that
a State may, in the execution of its police and health laws, make
regulations of commerce, but which congress may control. It is
very clear, that, so far as these regulations are merely internal,
and do not operate on foreign commerce, or commerce among the
States, they are altogether independent of the power of the gen-
eral government and cannot be controlled by it. The power of
control, therefore, which the court speaks of, presupposes that
they are regulations of foreign commerce, or commerce among the
States. And if a State, with a view to its police or health, may
LICENSE CASES. 215
make valid regulations of commerce which yet fall within the
controlling power of the general government, it follows that the
State is not absolutely prohibited from making regulations of for-
eign commerce within its own territorial limits, provided they do
not come in conflict with the laws of congress.
It has been said, indeed, that quarantine and health laws are
passed by the States, not by virtue of a power to regulate com-
merce, but by virtue of their police powers, and in order to guard
the lives and health of their citizens. This, however, cannot be
said of the pilot laws, which are yet admitted to be equally valid.
But what are the police powers of a State? They are nothing
more or less than the powers of government inherent in every
sovereignty to the extent of its dominions. And whether a State
passes a quarantine law, or a law to punish offenses, or to establish
courts of justice, or requiring certain instruments to be recorded,
or to regulate commerce within its own limits, in every case it
exercises the 'same power; that is to say, the power of sover-
eignty, the power to govern men and things within the limits of
its dominion. It is by virtue of this power that it legislates; and
its authority to make regulations of commerce is as absolute as
its power to pass health laws, except in so far as it has been
restricted by the constitution of the United States. And when
the validity of a state law making regulations of commerce is
drawn into question in a judicial tribunal, the authority to pass
it cannot be made to depend upon the motives that may be sup-
posed to have influenced the legislature, nor can the court inquire
whether it was intended to guard the citizens of the State from
pestilence and disease, or to make regulations of commerce for the
interest and convenience of trade.
Upon this question, the object and motive of the State are of
no importance, and cannot influence the decision. It is a ques-
tion of power. Are the States absolutely prohibited by the con-
stitution from making any regulations of foreign commerce? If
they are, then such regulations are null and void, whatever may
have been the motive of the State, or whatever the real object of
the law; and it requires no law of congress to control or annul
them. Yet the case of Gibbons v. Ogden, 9 Wheat., 1, unques-
tionably affirms that such regulations may be made by a State,
subject to the controlling power of congress. And if this may be
done, it necessarily follows that the grant of power to the federal
government is not an absolute and entire prohibition to the States,
but merely confers upon congress the superior and controlling
power. And to expound the particular passages hereinbefore
216 CASES ON CONSTITUTIONAL LAW.
mentioned in the manner insisted upon by those who contend for
the prohibition, would be to make different parts of that
opinion inconsistent with each other, an error which I am quite
sure no one will ever impute to the very eminent jurist by whom
the opinion was delivered.
And that the meaning of the court in the case of Gibbons v.
Ogden was such as I have insisted on, is, I think, conclusively
proved by the case of Willson et al. v. The Blackbird Creek Marsh
Company, 2 Pet., 251, 252. In that case, a dam authorized by
a state law had been erected across a navigable creek, so as to
obstruct the commerce above it. And the validity of the state
law was objected to, on the ground that it was repugnant to the
constitution of the United States, being a regulation of commerce.
But the court says: "The repugnancy of the law of Delaware to
the constitution is placed entirely on its repugnancy to the power
to regulate commerce with foreign nations, and among the several
States; a power which has not been so exercised as to affect the
question," and then proceeds to decide that the law of Delaware
could not "be considered as repugnant to the power to regulate
commerce in its dormant state, or as being in conflict with any
law passed on the subject."
The passages I have quoted show that the validity of the state
law was maintained because it was not in conflict with a law of
congress, although it was confessedly within the limits of the
power granted.. And it is worthy of remark, that the counsel for
the plaintiff in error in that case relied upon Gibbons v. Ogden,
as conclusive authority to show the unconstitutionality of the
state law, no doubt placing upon the passages I have mentioned
the construction given to them by those who insist upon the
exclusiveness of the power. This case, therefore, was brought
fully to the attention of the court. And the decision in the last
case, and the grounds on which it was placed, in my judgment,
show most clearly what was intended in Gibbons v. Ogden; and
that in that case, as well as in the case of Willson et al. v. The
Blackbird Creek Marsh Company, the court held that a state law
was not invalid merely because it made regulations of commerce,
but that its invalidity depended upon its repugnancy to a law of
congress passed in pursuance of the power granted. And it is
worthy, also, of remark, that the opinion in both of these cases
was delivered by Chief Justice Marshall, and I consider his opin-
ion in the latter one as an exposition of what he meant to decide
in the former.
In the case of the City of New York v. Miln, 11 Pet., 130, the
LICENSE CASES. 217
question as to the power of the States upon this subject was very
fully discussed at the bar. But no opinion was expressed upon
it by the court, because the case did not necessarily involve it,
and there was great diversity of opinion on the bench. Conse-
quently the point was left open, and has never been decided in
any subsequent case in this court.
For my own part, I have always regarded the cases of Gibbons
v. Ogden, 9 Wheat., 1, and Willson et al. v. The Blackbird Creek
Marsh Company, 2 Pet., 245, as abundantly sufficient to sanction
the construction of the constitution which in my judgment is
the true one. Their correctness has never been questioned; and
I forbear, therefore, to remark on the other cases in which this
subject has been mentioned and discussed.
It may be well, however, to remark, that in analogous cases,
where, by the constitution of the United States, power over a
particular subject is conferred on congress without any prohibition
to the States, the same rule of construction has prevailed. Thus
in the case of Houston v. Moore, 5 Wheat., 1, it was held that
the grant of power to the federal government to provide for organ-
izing, arming, and disciplining the militia, did not preclude the
States from legislating on the same subject, provided the law of
the State was not repugnant to the law of congress. And every
State in the Union has continually legislated on the subject, and
I am not aware that the validity of these laws has ever been dis-
puted, unless they came in conflict with the law of congress.
The same doctrine was held in the case of Sturges v. Crownin-
shield, 4 Wheat., 196, under the clause in the constitution which
gives to congress the power to establish uniform laws on the sub-
ject of bankruptcies throughout the United States.
And in the case of Chirac v. Chirac, 2 Wheat., 269, which arose
under the grant of power to establish a uniform rule of natural-
ization, where the court speak of the power of congress as exclu-
sive, they are evidently merely sanctioning the argument of coun-
sel stated in the preceding sentence, which placed the invalidity
of the naturalization under the law of Maryland, not solely upon
the grant of power in the constitution, but insisted that the Mary-
land law was "virtually repealed by the constitution of the United
States, and the act of naturalization enacted by congress." Un-
doubtedly it was so repealed, and the opposing counsel in the case
did not dispute it. For the law of the United States covered
every part of the Union, and there could not, therefore, by possi-
bility, be a state law which did not come in conflict with it. And,
indeed, in this case, it might well have been doubted whether the
218 CASES ON CONSTITUTIONAL LAW.
grant in the constitution itself did not abrogate the power of
the States, inasmuch as the constitution also provided that the
citizens of each State should be entitled to all the privileges and
immunities of citizens in the several States; and it would seem
to be hardly consistent with this provision to allow any one State,
after the adoption of the constitution, to exercise a power which,
if it operated at all, must operate beyond the territory of the State,
and compel other States to acknowledge as citizens those whom it
might not be willing to receive.
In referring to the opinions of those who sat here before us,
it is but justice to them, in expounding their language, to keep
in mind the character of the case they were deciding. And this
is more especially necessary in cases depending upon the construc-
tion of the constitution of the United States, where, from the
great public interests which must always be involved in such ques-
tions, this court have usually deemed it advisable to state very
much at large the principles and reasoning upon which their judg-
ment was founded, and to refer to and comment on the leading
points made by the counsel on either side in the argument. And
I am not aware of any instance in which the court have spoken
of the grant of power to the general government as excluding all
State power over the subject, unless they were deciding a case
where the power had been exercised by congress, and a state law
came in conflict with it. In cases of this kind, the power of Con-
gress undoubtedly excludes and displaces that of the State; be-
cause, wherever there is collision between them, the law of con-
gress is supreme. And it is in this sense only, in my judgment,
that it has been spoken of as exclusive in the opinions of the
court to which I have referred. The case last mentioned is a
striking example; for there the language of the court, affirming
in the broadest terms the exclusiveness of the power, evidently
refers to the argument of counsel stated in the preceding sen-
tence.
Upon the whole, therefore, the law of New Hampshire is, in iny
judgment, a valid one. For, although the gin sold was an import
from another State, and congress have clearly the power to reg-
ulate such importations, under the grant of power to regulate com-
merce among the several States, yet, as congress has made no
regulation on the subject, the traffic in the article may be lawfully
regulated by the State as soon as it is landed in its territory, and
a tax imposed upon it, or a license required, or the sale altogether
prohibited, according to the policy which the State may suppose
to .be its interest or duty to pursue.
THE PASSENGER CASES. 219
The judgment of the state courts ought, therefore, in my opin-
ion, to be affirmed in each of the three cases before us. ...
[MESSRS. JUSTICES MCLEAN, CATHON, DANIEL, WOODBURY,
and GRIER also gave opinions. MR. JUSTICE NELSON concurred
in the opinions of the CHIEF JUSTICE and of MR. JUSTICE
CATRON] .
THE PASSENGER CASES.
SMITH v. TURNER. NORRIS v. BOSTON.
7 Howard, 283. Decided 1848.
There were writs of error, the first to the court for the trial
of impeachments, &c., of the State of New York, the second, to
the supreme judicial court of the State of Massachusetts, under
the 2oth section of the judiciary act of 1789, 1 Stats, at Large,
85. The cases will be found succinctly but clearly stated in the
opinions of Justice McLean ... of Justice Catron . . .
and of Justice Grier. . . .
SMITH v. TURNER.
McLEAN, J. Under the general denomination of health laws
in New York, and by the 7th section of an act relating to the
marine hospital, it is provided, that "the health commissioners
shall demand and be entitled to receive, and in case of neglect
or refusal to pay, shall sue for and recover, in his name of office,
the following sums from the master of every vessel that shall
arrive in the port of New York, namely:
"1. From the master of every vessel from a foreign port, for
himself and each cabin passenger, $1.50; for each steerage passen-
ger, mate, sailor, or mariner, $1.
"2. From the master of each coasting vessel, for each person
on board, $0.25; but no coasting vessel from the States of New
Jersey, Connecticut, and Rhode Island shall pay for more than
one voyage in each month, computing from the first voyage in
each year."
The 8th section provides that the money so received, shall be
denominated "hospital moneys." And the 9th section gives "each
220 CASES ON CONSTITUTIONAL LAW.
master paying hospital moneys, a right to demand and recover
from each person the sum paid on his account." The 10th sec-
tion declares any master, who shall fail to make the above pay-
ments within twenty-four hours after the arrival of his vessel in
the port, shall forfeit the sum of $100. By the llth section, the
commissioners of health are required to account annually to the
comptroller of the State for all moneys received by them for the
use of the marine hospital; "and if such money shall, in any one
year, exceed the sum necessary to defray the expenses of their trust,
including their own salaries, and exclusive of such expenses a?
are to be borne and paid as a part of the contingent charges of
the city of New York, they shall pay over such surplus to the
treasurer of the Society for the Reformation of Juvenile Delin-
quents in the city of New York, for the use of the society."
The plaintiff in error was master of the British ship Henry Bliss,
which vessel touched at the port of New York in the month of
June, 1841, and landed 290 steerage passengers. The defendant
in error brought an action of debt on the statute against the
plaintiff, to recover $1 for each of the above passengers. A de-
murrer was filed, on the ground that the statute of New York was
a regulation of commerce, and in conflict with the constitution
of the United States. The supreme court of the State overruled
the demurrer, and the court of errors affirmed the judgment. This
brings before this court, under the 25th section of the judiciary
act, the constitutionality of the New York statute.
I will consider the case under two general heads:
1. Is the power of congress to regulate commerce an exclusive
power?
2. Is the statute of New York a regulation of commerce?
[In answer to the first question citations are given from Holmes
v. Jennison, 14 Pet., 570; Houston v. Moore, 5 Wheat., 23; Gib-
bons v. Ogden, 9 Wheat., 196; Brown v. Maryland, 12 Wheat.,
446; New York v. Miln, 11 Pet., 158; Sturges v. Crowninshield,
4 Wheat., 122; Wilson v. The Blackbird Creek Marsh Co., 2 Pet.,
250, and The Federalist, No. 32.]
Whether I consider the nature and object of the commercial
power, the class of powers with which it is placed, the decision
of this court in the case of Gibbons v. Ogden, 9 Wheat., 1, reit-
erated in Brown v. The State of Maryland, 12 Wheat., 419, and
often reasserted by Mr. Justice Story, who participated in those
decisions, I am brought to the conclusion that the power "to reg-
ulate commerce with foreign nations, and among the several
States," by the constitution, is exclusively vested in congress.
THE PASSENGER CASES. 221
I come now to inquire, under the second general proposition, Is
the statute of New York a regulation of foreign commerce?
All commercial action within the limits of a State, and which
does not extend to any other State or foreign country, is exclu-
sively under state regulation. Congress have no more power to
control this than a State has to regulate commerce "with foreign
nations and among the several States." And yet Congress may
tax the property within a State, of every description, owned by its
citizens, on the basis provided in the constitution, the same as a
State may tax it. But if congress should impose a tonnage duty
on vessels which ply between ports within the same State, or
require such vessels to take out a license, or impose a tax on per-
sons transported in them, the act would be unconstitutional and
void. But foreign commerce and commerce among the several
States, the regulation of which, with certain constitutional ex-
ceptions, is exclusively vested in congress, no State can regulate.
In giving the commercial power to congress, the States did
not part with that power of self-preservation which must be in-
herent in every organized community. They may guard against
the introduction of anything which may corrupt the morals, or en-
danger the health or lives of their citizens. Quarantine or health
laws have been passed by the States, and regulations of police for
their protection and welfare. The inspection laws of a State
apply chiefly to exports, and the State may lay duties and imposts
on imports or exports, to pay the expense of executing those laws.
But a State is limited to what shall be "absolutely necessary" for
that purpose. And still further to guard against the abuse of
this power, it is declared that "the net produce of all duties and
imposts laid by a 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."
The cautious manner in which the exercise of this commercial
power by a State is guarded, shows an extreme jealousy of it by
the convention; and no doubt the hostile regulations of commerce
by the States, under the confederation, had induced this jealousy.
No one can read this provision, and the one which follows it in
relation to tonnage duties, without being convinced that they
cover, and were intended to cover, the entire subject of foreign
commerce. A criticism on the term "import," by which to limit
the obvious meaning of this paragraph, is scarcely admissible in
construing so grave an instrument.
Commerce is defined to be "an exchange of commodities." But
this definition does not convey the full meaning of the term. It
222 CASES ON CONSTITUTIONAL LAW.
includes "navigation and intercourse." That the transportation
of passengers is a part of commerce, is not now an open question.
In Gibbons v. Ogden, this court say: "No clear distinction is
perceived between the powers to regulate vessels in transporting
men for hire, and property for hire." The provision of the consti-
tution, that "the migration or importation of such persons as
any of the States now existing shall think proper to admit, shall
not be prohibited by congress prior to the year 1808," is a restric-
tion on the general power of congress to regulate commerce. In
reference to this clause, this court say, in the above case: "This
section proves that the power to regulate commerce applies equally
to the regulation of vessels employed in transporting men who
pass from place to place voluntarily, and to those who pass invol-
untarily."
To encourage foreign emigration was a cherished policy of this
country at the time the constitution was adopted. As a branch
of commerce, the transportation of passengers has always given
a profitable employment to our ships, and, within a few years past,
has required an amount of tonnage nearly equal to that of im-
ported merchandis'e.
Is this great branch of our commerce left open to state regu-
lation on the ground that the prohibition refers to an import,
and a man is not an import?
Pilot laws, enacted by the different States, have been referred
to as commercial regulations. That these laws do regulate com-
merce, to a certain extent, is admitted; but from what authority
do they derive their force? Certainly, not from the States. . By
the fourth section of the act of the 7th of August, 1789, 1 it is
provided: "That all pilots in the bays, inlets, rivers, harbors, and
ports of the United States, shall continue to be regulated in
conformity with the existing laws of the States respectively, where-
in such pilots may be, or with such laws as the States may re-
spectively hereafter enact for the purpose, until further legisla-
tive provision shall be made by congress." These State laws, by
adoption, are the laws of congress, and as such, effect is given
to them. So the laws of the States which regulate the practice
of their courts, are adopted by congress to regulate the practice
of the federal courts. But these laws, so far as they are adopted,
are as much the laws of the United States, and it has often been
so held, as if they had been specifically enacted by congress. A
repeal of them by the State, unless future changes in the acts be
1 1 Stats, at Large, 54.
THE PASSENGER ' CASES. 223
also adopted, does not affect their force in regard to federal action.
In the above instances, it has been deemed proper for con-
gress to legislate, by adopting the law of the States. And it is
not doubted that this has been found convenient to the public
service. Pilot laws were in force in every commercial State on the
seaboard when the constitution was adopted; and on the intro-
duction of a new system, it was prudent to preserve, as far as
practicable, the modes of proceeding with which the people of
the different States were familiar. In regard to pilots, it was
not essential that the laws should be uniform, their duties could
be best regulated by an authority acquainted with the local cir-
cumstances under which they were performed; and the fact that
ihe same system is continued, shows that the public interest has
required no change.
No one has yet drawn the line clearly, because, perhaps, no one
can draw it, between the commercial power of the Union, and the
municipal power of a State. Numerous cases have arisen, involv-
ing these powers, which have been decided, but a rule has neces-
sarily been observed as applicable to the circumstances of each
case. And so must every case be adjudged. A State cannot
regulate foreign commerce, but it may do many things which more
or less affect it. It may tax a ship or other vessel used in com-
merce the same as other property owned by its citizens. A State
may tax the stages in which the mail is transported; but this does
not regulate the conveyance of the mail any more than taxing a
ship regulates commerce. And yet, in both instances, the tax
on the property in some degree affects its use.
An inquiry is made whether congress, under "the power to
regulate commerce among the several States/' can impose a tax
for the use of canals, railroads, turnpike roads, and bridges, con-
structed by a State, or its citizens? I answer, that congress has
no such power. The United States cannot use any one of these
works without paying the customary tolls. The tolls are imposed,
not as a tax, in the ordinary sense of that term, but as com-
pensation for the increased facility afforded by the improvement.
The act of New York now under consideration is called a health
law. It imposes a tax on the master and every cabin passenger of
a vessel from a foreign port of $1.50; and of $1 on the mate, each
steerage passenger, sailor, or mariner. And the master is made
responsible for the tax. he having a right to exact it of the others.
The funds so collected are denominated hospital moneys, and are
applied to the use of the marine hospital; the surplus to be paid
to the treasurer of the Society for the Reformation of Juvenile
224 CASES ON CONSTITUTIONAL LAW.
Delinquents in the city of New York, for the use of that society.
To call this a health law would seem to be a misapplication of
the term. It is difficult to perceive how a health law can he ex-
tended to the reformation of juvenile offenders. On the same
principle, it may be made to embrace all offenders, so as to pay
the expenses incident to an administration of the criminal law.
And with the same propriety, it may include the expenditures of
any branch of the civil administration of the city of New York,
or of the State. In fact, I can see no principle on which the
fund can be limited, if it may be used as authorized by the act.
The amount of the tax is as much within the discretion of the
legislature of New York as the objects to which it may be applied.
It is insisted, that if the act, as regards the hospital fund, be
/within the power of the State, the application of a part of the
/ fund to other objects, as provided in the act, cannot make it un-
/ constitutional. This argument is unsustainable. If the State has
/ power to impose a tax to defray the necessary expenses of a health
regulation, and this power being exerted, can the tax be increased
I so as to defray the expenses of the state government? This is
\^ within the principle asserted.
The case of The City of New York v. Miln, 11 Pet., 102, is
relied on with great confidence, as sustaining the act in ques-
tion. As I assented to the points ruled in that case, consistency,
unless convinced of having erred, will compel me to support the
law now before us, if it be the same in principle. The law in
Miln's case required that "the master or commander of any ship
or other vessel arriving at the port of New York shall, within
twenty-four hours after his arrival, make a report, in writing,
on oath or affirmation, to the mayor of the city of New York, of
the name, place of birth, and last legal settlement, age, and occu-
pation of every person brought as a passenger; and of all per-
sons permitted to land at any place during the voyage, or go on
board of some other vessel, with the intention of proceeding to
said city; under the penalty on such master or commander, and
the owner or owners, consignee or consignees, of such ship or
vessel, severally and respectively, of $75 for each individual not
so reported." And the suit was brought against Miln, as con-
signee of the ship Emily, for the failure of the master to make
report of the passengers on board of his vessel.
In their opinion, this court say: "The law operated on the
territory of New York, over which that State possesses an acknowl-
edged and undisputed jurisdiction for every purpose of internal
regulation;" and "on persons whose rights and duties are rightfully
THE PASSENGER CASES. 225
prescribed and controlled by the laws of the respective States,
within whose territorial limits they are found." This law was
considered as an internal police regulation, and as not interfering
with commerce.
A duty was not laid upon the vessel or the passengers, but the
report only was required from the master, as above stated. Now,
every State has an unquestionable right to require a register of
the names of the persons who come within it to reside temporarily
or permanently. This was a precautionary measure to ascertain
the rights of the individuals, and the obligations of the public,
under any contingency which might occur. It opposed no obstruc-
tion to congress, imposed no tax or delay, but acted upon the
master, owner, or consignee of the vessel, after the termination
of the voyage, and when he was within the territory of the State,
mingling with its citizens, and subject to its laws.
But the health law, as it is called, under consideration, is alto-
gether different in its objects and means. It imposes a tax or
duty on the passengers, officers, and sailors, holding the master
responsible for the amount at the immediate termination of the
voyage, and, necessarily, before the passengers have set their feet
on land. The tax on each passenger, in the discretion of the legis-
lature, might have been $5 or $10, or any other sum, amounting
even to a prohibition of the transportation of passengers; and the
professed object of the tax is as well for the benefit of juvenile
offenders as for the marine hospital. And it is not denied that a
considerable sum thus received has been applied to the former
object. The amount and application of this tax are only impor-
tant to show the consequences of the exercise of this power by the
States. The principle involved is vital to the commercial power
of the Union.
The transportation of passengers 'is regulated by congress. More
than two passengers for every five tons of the ship or vessel are
prohibited, under certain penalties; and the master is required to
report to the collector a list of the passengers from a foreign port,
stating the age, sex, and occupation of each, and the place of their
destination. In England, the same subject is regulated by act of
parliament, and the same thing is done, it is believed, in all com-
mercial countries. If the transportation of passengers be a branch
of commerce, of which there can be no doubt, it follows that the
act of New York, in imposing this tax, is a regulation of com-
merce. It is a tax upon a commercial operation, upon what may,
in effect, be called an import. In a commercial sense, no just
distinction can be made, as regards the law in question, between
15
226 CASES ON CONSTITUTIONAL LAW.
the transportation of merchandise and passengers. For the trans-
portation of both, the ship-owner realizes a profit, and each is the
subject of a commercial regulation by congress. When the mer-
chandise is taken from the ship, and becomes mingled with the
property of the people of the State, like other property, it is sub-
ject to the local law; but until this shall take place, the mer-
chandise is an import, and is not subject to the taxing power of
the State, and the same rule applies to passengers. When they
leave the ship and mingle with the citizens of the State, they
become subject to its laws.
In Gibbons v. Ogden, the court held that the act of laying
"duties or imposts on imports or exports" is derived from the tax-
ing power; and they lay much stress on the fact that this power
is given in the same sentence as the power to "lay and collect
taxes." "The power," they say, "to regulate commerce is given"
in a separate clause, "as being entirely distinct from the right to
levy taxes and imposts, and as being a new power, not before con-
ferred;" and they remark, that, had not the State been prohibited,
they might, under the power to tax, have levied "duties on im-
ports or exports." 9 Wheat., 201.
The constitution requires that all "duties and imposts shall be
uniform," and declares that "no preferences shall be given by
-any regulation of commerce or revenue to the ports of one State
/over those of another." Now, it is inexplicable to me how thir-
teen or more independent States could tax imports under these
provisions of the constitution. The tax must be uniform through-
out the Union; consequently, the exercise of the power by any one
State would be unconstitutional as it would destroy the uniformity
of the tax. To secure this uniformity was one of the motives
which led to the adoption of the constitution. The want of it
produced collisions in the commercial regulations of the States.
But if, as is contended, these provisions of the constitution oper-
ate only on the federal government, and the States are free to
regulate commerce by taxing its operations in all cases where
they are not expressly prohibited, the constitution has failed
to accomplish the great object of those who adopted it.
These provisions impose restrictions on the exercise of the com-
mercial power, which was exclusively vested in congress; and is
as binding on the States as any other exclusive power with which
it is classed in the constitution.
It is immaterial under what power duties on imports are im-
posed. That they axe the principal means by which commerce
is regulated, no one can question. Whether duties shall be im-
THE PASSENGER CASES. 227
posed with the view to protect our manufactures, or for purposes
of revenue only, has always been a leading subject of discussion in
congress; and also what foreign articles may be admitted free of
duty. The force of the argument, that things untouched by the
regulating power have been equally considered with those of the
same class on which it has operated, is not admitted by the coun-
sel for the defendant. But does not all experience sustain the
argument? A large amount of foreign articles brought into this
country for several years, have been admitted free of duty. Have
not these articles been considered by congress? The discussion
in both houses of congress, the report by the committees of both,
and the laws that have been enacted, show that they have been
duly considered.
Except to guard its citizens against diseases and paupers, the
municipal power of a State cannot prohibit the introduction of
foreigners brought to this country under the authority of con-
gress. It may deny to them a residence, unless they shall give
security to indemnify the public should they become paupers. The
slave States have the power, as this court held in Groves v. Slaugh-
ter, to prohibit slaves from being brought into them as mer-
chandise. But this was on the ground that such a prohibition
did not come within the power of congress "to regulate commerce
among the several States." It is suggested that, under this view
of the commercial power, slaves may be introduced into the free
States. Does any one suppose that congress can ever revive the
slave-trade? And if this were possible, slaves, thus introduced,
would be free.
As early as May 27, 1796, 1 congress enacted, that "the Presi-
dent be authorized to direct the revenue-officers commanding forts
and revenue cutters, to aid in the execution of quarantine, and
also in the execution of the health laws of the States respectively."
And by the act of Feb. 25, 1799, 2 which repealed the above act,
more enlarged provisions were enacted, requiring the revenue-offi-
cers of the United States to conform to and aid in the execution
of the quarantine and health laws of the States. In the first sec-
tion of this law there is a proviso that "nothing therein shall
enable any State to collect a duty of tonnage or impost without
the consent of congress." A proviso limits the provisions of the
act into which it is introduced. But this proviso may be con-
sidered as not restricted to this purpose. It shows with what
caution congress guarded the commercial power, and it is an
1 1 Stats, at Large, 474. 2 1 ib., 619.
228 CASES ON CONSTITUTIONAL LAV/.
authoritative provision against its exercise by the States. An
impost, in its enlarged sense, means any tax or tribute imposed
by authority, and applies as well to a tax on persons as to a
tax on merchandise. In this sense it was no doubt used in the
above act. Any other construction would be an imputation on
the intelligence of congress.
If this power to tax passengers from a foreign country belongs
to a State, a tax, on the same principle, may be imposed on all
persons coming into or passing through it from any other State
of the Union. And the New York statute does in fact lay a
tax on passengers on board of any coasting-vessel which arrives
at the port of New York, with an exception of passengers in ves-
sels from New Jersey, Connecticut, and Ehode Island, who are
required to pay for one trip in each month. All other passengers
pay the tax every trip.
If this may be done in New York, every other State may do
the same, on all the lines of our internal navigation. Passengers
on a steamboat which plies on the Ohio, the Mississippi, or on
any of our other rives, or on the lakes, may be required to pay
a tax, imposed at the discretion of each State within which the
boat shall touch. And the same principle will sustain a right in
every State to tax all persons who shall pass through its terri-
tory on railroad cars, canal boats, stages, or in any other manner.
This would enable a State to establish and enforce a non-inter-
course with every other State.
The 9th section of the first article of the constitution declares:
"Nor shall vessels bound to or from one State, be obliged to
enter, clear, or pay duties in another." But if the commercial
power of the Union over foreign commerce does not exempt pas-
sengers brought into the country from state taxation, they can
claim no exemption under the exercise of the same power among
the States. In McCulloch v. The State of Maryland, 4 Wheat.,
431, this court say: "That there is a plain repugnance in con-
ferring on one government a power to control the constitutional
measures of another, which other, with respect to those very meas-
ures, is declared to be supreme over that which exerts the control,
is a proposition not to be denied."
The officers and crew of the vessel are as much the instruments
of commerce as the ship, and yet they are taxed under this health
law of New York as such instruments. The passengers are taxed
as passengers, being the subjects of commerce from a foreign
country. By the 14th article of the treaty of 1794, 3 with Eng-
s 8 Stats, at Large, 116.
THE PASSENGER CASES. 229
land, it is stipulated that the people of each country may freely
come, with their ships and cargoes, to the other, subject only to
the laws and statutes of the two countries respectively. The stat-
utes here referred to are those of the federal government, and not
of the States. The general government only is known in our
foreign intercourse.
By the 46th section of the act of March, 1799, 1 the wearing
apparel and other personal baggage, and the tools or implements
of a mechanical trade, from a foreign port, are admitted free of
duty. These provisions of the treaty and of the act are still in
force, and they have a strong bearing on this subject. They are,
in effect, repugnant to the act of New York.
It is not doubted that a large portion, perhaps nine-tenths, of
the foreign passengers landed at the port of New York pass
through the State to other places of residence. At such places,
therefore, pauperism must be increased much more by the influx
of foreigners than in the city of New York. If, by reason of com-
merce, a burden is thrown upon our commercial cities, congress
should make suitable provisions for their relief. And I have no
doubt this will be done.
The police power of the State cannot draw within its jurisdic-
tion objects which lie beyond it. It meets the commercial power
of the Union in dealing with subjects under the protection of that
power, yet it can only be exerted under peculiar emergencies, and
to a limited extent. In guarding the safety, the health, and morals
of its citizens, a State is restricted to appropriate and constitu-
tional means. If extraordinary expense be incurred, an equitable
claim to an indemnity can give no power to a State to tax objects
not subject to its jurisdiction.
The attorney-general of New York admitted that if the com-
mercial power were exclusively vested in congress, no part of it
can be exercised by a State. The soundness of this conclusion
is not only sustainable by the decisions of this court, but by every
approved rule of construction. That the power is exclusive seems
to be as fully established as any other power under the consti-
tution, which has been controverted.
A tax or duty upon tonnage, merchandise, or passengers is a
regulation of commerce, and cannot be laid by a State, except
under the sanction of congress and for the purposes specified in
'the constitution. On the subject of foreign commerce, including
the transportation of passengers, congress have adopted such reg-
ulations as they deemed proper, taking into view our relations
il Stats, at Large, 661.
230 CASES ON CONSTITUTIONAL LAW.
with other countries. And this covers the whole ground. The
act of New York which imposes a tax on passengers of a ship from
a foreign port, in the manner provided, is a regulation of foreign
commerce, which is exclusively vested in congress; and the act is,
therefore, void.
NORRIS v. CITY OF BOSTON.
This is a writ of error, which brings before the court the judg-
ment of the supreme court of the State of Massachusetts.
"An act relating to alien passengers," passed the 20th of April,
1837, by the legislature of Massachusetts, contains the following
provisions:
" 1. When any vessel shall arrive at any port or harbor
within this State, from any port or place without the same, with
alien passengers on board, the officer or officers w r hom the mayor
and aldermen of the city, or the selectmen of the town, where
it is proposed to land such passengers, are hereby authorized and
required to appoint, shall go on board such vessels and examine
into the condition of said passengers.
" 2. If, on such examination, there shall be found, among
said passengers, any lunatic, idiot, maimed, aged, or infirm person,
incompetent, in the opinion of the officer so examining, to main-
tain themselves, or who have been paupers in any other countn r ,
no such alien passenger shall be permitted to land, until the mas-
ter, owner, consignee, or agent of such vessel shall have given to
such city or town a bond in the sum of $1,000, with good and
sufficient security, that no such lunatic or indigent passenger shall
become a city, town, or state charge within ten years from the date
of said bond.
" 3. No alien passenger, other than those spoken of in the
preceding section, shall be permitted to land, until the master,
owner, consignee, or agent of such vessel shall pay to the regularly
appointed boarding officer the sum of two dollars for each passen-
ger so landing; and the money so collected shall be paid into
the treasury of the city or town, to be appropriated, as the city or
town may direct, for the support of foreign paupers/'
The plaintiff being an inhabitant of St. John's, in the Province
of New Brunswick and kingdom of Great Britain, arriving in
the port of Boston, from that place, in command of a schooner
called The Union Jack, which had on board nineteen alien passen-
gers, for each of which two dollars were demanded of the plaintiff,
and paid by him, on protest that the exaction was illegal. An
THE PASSENGER CASES. 231
action being brought, to recover back this money, against the city
of Boston, in the court of common pleas, under the instructions
of the court, the jury found a verdict for the defendant, on which
judgment was entered, and which was affirmed on a writ of error
to the supreme court.
Under the 1st and 2d sections of the above act, the persons
appointed may go on board of a ship from a foreign port, which
arrives at the port of Boston with alien passengers on board, and
examine whether any of them are lunatics, idiots, maimed, aged,
or infirm, incompetent to maintain themselves, or have been
paupers in any other country, and not permit such persons to be
put on shore, unless security shall be given that they shall not
become a city, town, or state charge. This is the exercise of an
unquestionable power in the State to protect itself from foreign
paupers and other persons who would be a public charge; but the
nineteen alien passengers for whom the tax was paid .did not
come, nor any one of them, within the second section. The tax
of two dollars was paid by the master for each of these passengers
before they were permitted to land. This, according to the view
taken in the above case of Smith v. Turner, was a regulation of
commerce, and not being within the power of the State, the act
imposing the tax is void.
The fund thus raised was no doubt faithfully applied for the
support of foreign paupers, but the question is one of power, and
not of policy. The judgment of the supreme court, in my opin-
ion, should be reversed, and this cause be remanded to that court,
with instructions to carry out the judgment of this court.
NOEKIS v. CITY OF BOSTON, AND SMITH v. TUKNER.
WAYNE, J. I agree with Mr. Justice McLean, Mr. Justice
Catron, Mr. Justice McKinley, and Mr. Justice Grier, that the
laws of Massachusetts and New York, so far as they are in ques-
tion in these cases, are unconstitutional and void. I would not
say so if I had any, the least, doubt of it; for, I think it obliga-
tory upon this court, when there is a doubt of the unconstitutional-
ly of a law, that its judgment should be in favor of its validity. I
have formed my conclusions in these cases with this admission
constantly in mind.
Before stating, however, what they are, it will be well for me
to say that the four judges and myself, who concur in giving the
judgment in these cases, do not differ in the grounds upon which
our judgment has been formed, except in one particular, in no
way at variance with our united conclusion; and that is, that a
232 CASES ON CONSTITUTIONAL LAW.
majority of us do not think it necessary in these cases to reaffirm,
with our brother McLean, what this court has long since decided,
that the constitutional power to regulate "commerce with foreign
nations, and among the several States, and with the Indian tribes,"
is exclusively vested in congress, and that no part of it can be
exercised by a State.
I believe it to be so, just as it is expressed in the preceding sen-
tence. And in the sense in which those words were used by this
court in the case of Gibbons v. Ogden, 9 Wheat., 198. All that
was decided in that case remains unchanged by any subsequent
opinion or judgment of this court. Some of the judges of it have,
in several cases, expressed opinions that the power to regulate
commerce is not exclusively vested in Congress. But they are
individual opinions, without judicial authority to overrule the
contrary conclusion, as it was given by this court in Gibbons v.
Ogden.
Still, I do not think it necessary to reaffirm that position in
these cases as a part of our judgments upon them. . . .
In my view, ... I think the court means now to decide:
1. That the acts of New York and Massachusetts imposing a
tax upon passengers, either foreigners or citizens, coming into the
ports in those States, either in foreign vessels or vessels of the
United States, from foreign nations or from ports in the United
States, are unconstitutional and void, being in their nature regula-
tions of commerce contrary to the grant in the constitution to con-
gress of the power to regulate commerce with foreign nations and
among the several States.
2. That the States of this Union cannot constitutionally tax
the commerce of the United States for the purposes of paying any
expense incident to the execution of their police laws; and that
the commerce of the United States includes an intercourse of
persons, as well as the importation of merchandise.
3. That the acts of Massachusetts and New York in question
in these cases conflict with treaty stipulations existing between
the United States and Great Britain, permitting the inhabitants
of the two countries "freely and securely to come, with their ships
and cargoes, to all places, ports, and rivers in the territories of each
country to which other foreigners are permitted to come, to enter
into the same, and to remain and reside in any parts of said terri-
tories, respectively; also, to hire and occupy houses and warehouses
for the purposes of their commerce, and generally the merchants
and traders of each nation respectively shall enjoy the most com-
plete protection and security for their commerce, but subject al-
THE PASSENGER CASES. 233
ways to the laws and statutes of the two countries respectively;"
and that said laws are therefore unconstitutional and void.
4. That the congress of the United States having by sundry
acts, passed at different times, admitted foreigners into the United
/ States with their personal luggage and tools of trade, free from
all duty or imposts, the acts of Massachusetts and New York,
imposing any tax upon foreigners or immigrants for any purpose
whatever, whilst the vessel is in transitu to her port of destina-
tion, though said vessel may have arrived within the jurisdictional
limits of either of the States of Massachusetts and New York,
and before the passengers have been landed, are in violation of
id acts of congress, and therefore unconstitutional and void.
5. That the acts of Massachusetts and New York, so far as they
impose any obligation upon the owners or consignees of vessels,
or upon the captains of vessels or freighters of the same, arriving
in the ports of the United States within the said States, to pay
any tax or duty of any kind whatever, or to be in any way re-
sponsible for the same, for passengers arriving in the United
States, or coming from a port in the United States, are unconsti-
tutional and void, being contrary to the constitutional grant to
congress of the power to regulate commerce with foreign nations
and among the several States, and to the legislation of congress
under the said power, by which the United States have been laid
off into collection districts, and ports of entry established within
the same, and commercial regulations prescribed, under which
vessels, their cargoes and passengers, are to be admitted into the
ports of the United States, as well from abroad as from other ports
of the United States. That the act of New York now in ques-
tion, so far as it imposes a tax upon passengers arriving in vessels
from other ports in the United States, is properly in this case
before this court for construction, and that the said tax is uncon-
stitutional and void. That the ninth section of the first article of
the constitution includes within it the migration of other persons,
as well as the importation of slaves, and in terms recognizes that
other persons, as well as slaves, may be the subjects of importation
and commerce.
6. That the 5th clause of the 9th section of the 1st article
of the constitution, which declares that "no preference shall be
/ given by any regulation of commerce or revenue to the ports of
/ one State over those of another State; nor shall vessels bound to
\ or from one State, be obliged to enter, clear, or pay duties in an-
\ other," is a limitation upon the power of congress to regulate corn-
Amerce for the purpose of producing entire commercial equality
234 CASES ON CONSTITUTIONAL LAW.
within the United States, and also a prohibition upon the States
to destroy such equality by any legislation prescribing a condition
upon which vessels bound from one State; shall enter the ports of
another State.
7. That the acts of Massachusetts and Xew York, so far as
they impose a tax upon passengers, are unconstitutional and void,
because each of them so far conflicts with the first clause of the
eighth section of the first article of the constitution, which en-
joins that all duties, imposts, and excises shall be uniform through-
out the United States; because the constitutional uniformity en-
joined in respect to duties and imposts is as real and obligatory
upon the States, in the absence of all legislation by congress, as if
the uniformity had been made by the legislation of congress; and
that such constitutional uniformity is interfered with and de-
stroyed by any State imposing any tax upon the intercourse of
persons from State to State, or from foreign countries to the
United States.
/ 8. That the power in cpngress to regulate commerce with for-
eign nations and among the several States, includes navigation
( upon the high seas, and in the bays, harbors, lakes, and navigable
waters within the United States, and that any tax by a State in
any way affecting the right of navigation, or subjecting the ex-
ercise of the right to a condition, is contrary to the aforesaid grant.
9. That the States of this Union may, in the exercise of their
police powers, pass quarantine and health laws, -interdicting ves-
sels coming from foreign ports, or ports within the United States,
from landing passengers and goods, prescribe the places and time
for vessels to quarantine, and impose penalties upon persons for
violating the same; and that such laws, though affecting com-
merce in its transit, are not regulations of commerce prescribing
terms upon which merchandise and persons shall be admitted into
the ports of the United States, but precautionary regulations to
prevent vessels engaged in commerce from introducing disease
into the ports to which they are bound; and that the States may,
in the exercise of such police power, without any violation of the
power in congress to regulate commerce, exact from the owner or
consignee of a quarantined vessel, and from the passengers on
board of her, such fees as will pay to the State the cost of their
detention and of the purification of the vessel, cargo, and apparel
of the persons on board. . . .
[CHIEF JUSTICE TANEY, with whom JUSTICE NELSON con-
curred, and JUSTICES DANIEL and WOODBUKY delivered dissent-
ing opinions.]
COOLEY v. BOARD OF WARDENS OF PHILADELPHIA. 235
COOLEY v. THE BOARD OF WARDENS OF THE PORT
OF PHILADELPHIA.
12 Howard, 299. Decided 1851.
THE case is stated in the opinion of the court. . . .
CURTIS, J., delivered the opinion of the court.
These cases are brought here by writs of error to the supreme
court of the commonwealth of Pennsylvania.
They are actions to recover half-pilotage fees under the 29th
section of the act of the legislature of Pennsylvania, passed on the
second day of March, 1803. The plaintiff in error alleges that the
highest court of the State has decided against a right claimed by
him under the constitution of the United States. That right is,
to be exempted from the payment of the sums of money, demanded
pursuant to the state law above referred to, because that law con-
travenes several provisions of the constitution of the United
States.
The particular section of the State law drawn in question is as
follows: "That every ship or vessel arriving from, or bound to
any foreign port or place, and every ship or vessel of the burden
of seventy-five tons or more, sailing from, or bound to any port
not within the River Delaware, shall be obliged to receive a pilot.
And it shall be the duty of the master of every such ship or vessel,
within thirty-six hours next after the arrival of such ship or vessel
at the city of Philadelphia, to make report to the master-warden
of the name of such ship or vessel, her draught of water, and the
name of the pilot who shall have conducted her to the port. And
when any such vessel shall be outward bound, the master of such
vessel shall make known to the wardens the name of such vessel,
and of the pilot who .is to conduct her to the capes, and her
draught of water at that time. And it shall be the duty of the
wardens to enter every such vessel in a book to be by them kept
for that purpose, without fee or reward. And if the master of any
ship or vessel shall neglect to make such report, he shall forfeit
and pay the sum of $60. And if the master of any such ship or
vessel shall refuse or neglect to take a pilot, the master, owner, or
consignee of such vessel shall forfeit and pay to the warden afore-
said, a sum equal to the half-pilotage of such ship or vessel, to the
use of the Society for the Relief, etc., to be recovered as pilotage
in the manner hereinafter directed: Provided always, that where
it shall appear to the warden that in case of an inward bound vessel,
CASES ON CONSTITUTIONAL LAW.
a pilot did not offer before she had reached Reedy Island; or, in
case of an outward bound vessel, that a pilot could not be ob-
tained for twenty-four hours after such vessel was ready to de-
part, the penalty aforesaid, for not having a pilot, shall not be
incurred." This is one section of "An Act to establish a Board of
Wardens for the Port of Philadelphia, and for the Regulation of
Pilots and Pilotages, etc.," and the scope of the act is, in con-
formity with the title, to regulate the whole subject of the pilotage
of that port.
We think this particular regulation concerning half-pilotage fees
is an appropriate part of a general system of regulations of this
subject. Testing it by the practice of commercial States and coun-
tries legislating on this subject, we find it has usually been deemed
necessary to make similar provisions. Numerous laws of this
kind are cited in the learned argument of the counsel for the de-
fendant in error; and their fitness, as part of a system of pilotage,
in many places, may be inferred from their existence in so many
different States and countries. Like other laws, they are framed
to meet the most usual cases, quce frequentius accidunt; they rest
upon the propriety of securing lives and property exposed to the
perils of a dangerous navigation, by taking on board a person pe-
culiarly skilled to encounter or avoid them; upon the policy of dis-
couraging the commanders of vessels from refusing to receive such
persons on board at the proper times and places; and upon the
expediency, and even intrinsic justice, of not suffering those who
have incurred labor, and expense, and danger, to place themselves
in a position to render important service generally necessary, to
go unrewarded, because the master of a particular vessel either
rashly refuses their proffered assistance, or, contrary to the gen-
eral experience, does not need it. There are many cases, in which
an offer to perform, accompanied by present ability to perform,
is deemed by law equivalent to performance. The laws of com-
mercial States and countries have made an offer of pilotage serv-
ice one of those cases; and we cannot pronounce a law which does
this to be so far removed from the usual and fit scope of laws for
the regulation of pilots and pilotage, as to be deemed, for this
cause, a covert attempt to legislate upon another subject under the
appearance of legislating on this one.
It is urged that the second section of the act of the legislature
of Pennsylvania, of the llth of June, 1832, proves that the State
had other objects in view than the regulation of pilotage. That
section is as follows:
"And be it further enacted, by the authority aforesaid, that
COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 237
from and after the first day of July next, no health-fee or half-
pilotage shall be charged on any vessel engaged in the Pennsyl-
vania coal trade."
It must be remembered, that the fair objects of a law imposing
half-pilotage when a pilot is not received, may be secured, and at
the same time some classes of vessels exempted from such charge.
Thus, the very section of the act of 1803, now under consideration,
does not apply to coasting vessels of less burden than seventy-five
tons, nor to those bound to, or sailing from, a port in the Kiver
Delaware. The purpose of the law being to cause masters of such
vessels as generally need a pilot, to secure one, and to secure to
the pilots a fair remuneration for cruising in search of vessels, or
waiting for employment in port, there is an obvious propriety in
having reference to the number, size, and nature of employment
of vessels frequenting the port; and it will be found, by an ex-
amination of the different systems of these regulations, which
have from time been made in this and other countries, that the
legislative discretion has been constantly exercised in making dis-
criminations, founded on differences both in the character of the
trade, and the tonnage of vessels engaged therein.
We do not perceive anything in the nature or extent of this
particular discrimination in favor of vessels engaged in the coal
trade, which would enable us to declare it to be other than a fair
exercise of legislative discretion, acting upon the subject of the
regulation of the pilotage of this port of Philadelphia, with a view
to operate upon the masters of those vessels, who, as a general
rule, ought to take a pilot, and with the further view of relieving
from the charge of half-pilotage such vessels as from their size,
or the nature of their employment, should be exempted from con-
tributing to the support of pilots, except so far as they actually
receive their services. In our judgment, though this law of 183?
has undoubtedly modified the 29th section of the act of 1803, and
both are to be taken together as giving the rule on this subject
of half-pilotage, yet this change in the rule has not changed the
nature of the law, nor deprived it of the character and attributes
of a law for the regulation of pilotage.
Nor do we consider that the appropriation of the sums received
under this section of the act, to the use of the society for the relief
of distressed and decayed pilots, their widows and children, has
any legitimate tendency to impress on it the character of a revenue
law. Whether these sums shall go directly to the use of the indi-
vidual pilots by whom the service is tendered, or shall form a
common fund, to be administered by trustees for the benefit of
238 CASES ON CONSTITUTIONAL LAW.
such pilots and their families as may stand in peculiar need of it,
is a matter resting in legislative discretion, in the proper exercise
of which the pilots alone are interested.
For these reasons, we cannot yield our assent to the argument
that this provision of law is in conflict with the second and third
clauses of the tenth section of the first article of the constitution,
which prohibit a State, without the assent of congress, from lay-
ing any imposts or duties on imports or exports, or tonnage. This
provision of the constitution was intended to operate upon sub-
jects actually existing and well understood when the constitution
was formed. Imposts and duties on imports, exports, and ton-
nage were then known to the commerce of the civilized world to
be as distinct from fees and charges for pilotage, and from the
penalties by which commercial States enforced their pilot-laws,
as they were from charges for wharfage or towage, or any other
local port-charges for services rendered to vessels or cargoes; and
to declare that such pilot-fees or penalties are embraced within
the words imposts or duties on imports, exports, or tonnage, would
be to confound things essentially different, and which must have
been known to be actually different by those who use this lan-
guage. It cannot be denied that a tonnage duty, or an impost
on imports or exports, may be levied under the name of pilot
dues or penalties; and certainly it is the thing, and not the name,
which is to be considered. But, having previously stated that, in
this instance, the law complained of does not pass the appropriate
line which limits laws for the regulation of pilots and pilotage,
the suggestion that this law levies a duty on tonnage or on im-
ports or exports is not admissible; and, if so, it also follows that
this law is not repugnant to the first clause of the eighth section
of the first article of the constitution, which declares that all
duties, imposts, and excises shall be uniform throughout the
United States; for, if it is not to be deemed a law levying a duty,
impost, or excise, the want of uniformity throughout the United
States is not objectionable. Indeed, the necessity of conforming
regulations of pilotage to the local peculiarities of each port, and
the consequent impossibility of having its charges uniform
throughout the United States, would be sufficient of itself to prove
that they could not have been intended to be embraced within
this clause of the constitution; for it cannot be supposed uni-
formity was required, when it must have been known to be im-
practicable.
It is further objected that this law is repugnant to the fifth
clause of the ninth section of the first article of the constitution,
COOLEY v. BOARD OF WARDENS OF PHILADELPHIA. 239
namely: "No preference shall be given, by any regulation of
commerce or revenue, to the ports of one State over those of an-
other; nor shall vessels, to or from one State, be obliged to enter,
clear, or pay duties in another."
But, as already stated, pilotage fees are not duties within the
meaning of the constitution; and, certainly, Pennsylvania does
not give a preference to the port of Philadelphia, by requiring the
masters, owners, or consignees of vessels sailing to or from that
port, to pay the charges imposed by the twenty-ninth section of
the act of 1803. It is an objection to, and not a ground of prefer-
ence of a port, that a charge of this kind must be borne by vessels
entering it; and, accordingly, the interests of the port require,
and generally produce, such alleviations of these charges as its
growing commerce from time to time renders consistent with the
general policy of the pilot laws. This State, by its act of the 24th
of March, 1851, has essentially modified the law of 1803, and fur-
ther exempted many vessels from the charge now in question.
Similar changes may be observed in the laws of New York, Massa-
chusetts, and other commercial States, and they undoubtedly
spring from the conviction that burdens of this kind, instead of
operating to give a preference to a port, tend to check its com-
merce, and that sound policy requires them to be lessened and re-
moved as early as the necessities of the system will allow.
In addition to what has been said respecting each of these con-
stitutional objections to this law, it may be observed that similar
laws have existed and been practised on in the States since the
adoption of the federal constitution; that, by the act of the 7th
of August, 1789, 1 Stats, at Large, 54, congress declared that all
pilots in the bays, inlets, rivers, harbors, and ports of the United
States, shall continue to be regulated in conformity with the exist-
ing laws of the States, etc.; and that this contemporaneous con-
struction of the constitution since acted on with such uniformity
in a matter of much public interest and importance, is entitled
to great weight, in determining whether such a law is repug-
nant to the constitution, as levying a duty not uniform through-
out the United States, or, as giving a preference to the ports of
one State over those of another, or, as obliging vessels to or from
one State to enter, clear, or pay duties in another. Stuart v.
Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat., 304; Cohens v.
The Commonwealth of Virginia, 6 Wheat., 264; Prigg v. The
Commonwealth of Pennsylvania, 16 Pet., 621.
The opinion of the court is, that the law now in question is
240 CASES ON CONSTITUTIONAL LAW.
not repugnant to either of the above-mentioned clauses of the
constitution.
It remains to consider the objection that it is repugnant to the
third clause of the eighth section of the first article. "The con-
gress shall have power to regulate commerce with foreign nations
and among the several States, and with the Indian tribes."
That the power to regulate commerce includes the regulation
of navigation, we consider settled. And when we look to the
nature of the service performed by pilots, to the relations which
that service and its compensations bear to navigation between the
several States, and between the ports of the United States and
foreign countries, we are brought to the conclusion, that the
regulation of the qualifications of pilots, of the modes and times
of offering and rendering their services, of the responsibilities
which shall rest upon them, of the powers they shall possess, of
the compensation they may demand, and of the penalties by which
their rights and duties may be enforced, do constitute regulations
of navigation, and consequently of commerce, within the just
meaning of this clause of the constitution.
The power to regulate navigation is the power to prescribe rules
in conformity with which navigation must be carried on. It ex-
tends to the persons who conduct it, as well as to the instruments
used. Accordingly, the first congress assembled under the con-
stitution passed laws, requiring the masters of ships and vessels
of the United Slates to be citizens of the United States, and estab-
lished many rules for the government and regulation of officers
and seamen. 1 Stats, at Large, 55, 131. These have been from
time to time added to and changed, and we are not aware that
their validity has been questioned.
Now, a pilot, so far as respects the navigation of the vessel in
that part of the voyage which is his pilotage-ground, is the tem-
porary master charged with the safety of the vessel and cargo, and
of the lives of those on board, and intrusted with the command of
the crew. He is not only one of the persons engaged in navigation,
but he occupies a most important and responsible place among
those thus engaged. And if congress has power to regulate the
seamen who assist the pilot in the management of the vessel, a
power never denied, we can perceive no valid reason why the pilot
should be beyond the reach of the same power. It is true that,
according to the usages of modern commerce on the ocean, the pilot
is on board only during a part of the voyage between ports of dif-
ferent States, or between ports of the United States and foreign
countries; but if he is on board for such a purpose and during so
COOLEY v. BOARD OP WARDENS OF PHILADELPHIA. 241
much of the voyage as to be engaged in navigation, the power to
regulate navigation extends to him while thus engaged, as clearly
as it would if he were to remain on board throughout the whole
passage, from port to port. For it is a power which extends to
every part of the voyage, and may regulate those who conduct or
assist in conducting navigation in one part of a voyage as much
as in another part, or during the whole voyage.
Nor should it be lost sight of, that this subject of the regulation
of pilots and pilotage has an intimate connection with, and an
important relation to, the general subject of commerce with for-
eign nations and among the several States, over which it was one
main object of the constitution to create a national control.
Conflicts between the laws of neighboring States, and discrimina-
tions favorable or adverse to commerce with particular foreign
nations, might be created by state laws regulaiting pilotage, deeply
affecting that equality of commercial rights, . and that freedom
from state interference, which those who formed the constitution
were so anxious to secure, and which the experience of more than
half a century has taught us to value so highly. The apprehen-
sion of this danger is not speculative merely. For, in 1837, con-
gress actually interposed to relieve the commerce of the country
from serious embarrassment, arising from the laws of different
States, situate upon waters which are the boundary between them.
This was done by an enactment of the 2d of March, 1837, 1 in
the following words:
"Be it enacted, that it shall and may be lawful for the master
or commander of any vessel coming into or going out of any port
situate upon waters which are the boundary between two States,
to employ any pilot duly licensed or authorized by the laws of
either of the States bounded on the said waters, to pilot said vessel
to or from said port, any law, usage, or custom to the contrary
notwithstanding."
The act of 1789, 1 Stats, at Large, 54, already referred to, con-
tains a clear legislative exposition of the constitution by the first
congress, to the effect that the power to regulate pilots was con-
ferred on congress by the constitution; as does also the act of
March the 3d, 1837, the terms of which have just been given. The
weight to be allowed to this contemporaneous construction, and
the practice of congress under it, has, in another connection, been
adverted to. And a majority of the court are of opinion, that a
regulation of pilots is a regulation of commerce, within the grant
to congress of the commercial power, contained in the third clause
of the eighth section of the first article of the constitution.
16 i 5 Stats, at Large, 153.
242 CASES ON CONSTITUTIONAL LAW.
It becomes necessary, therefore, to consider whether this law of
Pennsylvania, being a regulation of commerce, is valid.
The act of congress of the 7th of August, 1789, 4, is as
follows:
"That all pilots in the bays, inlets, rivers, harbors, and ports of
the United States shall continue to be regulated in conformity
with the existing laws of the States, respectively, wherein such
pilots may be, or with such laws as the States may respectively
hereafter enact for the purpose, until further legislative provision
shall be made by congress."
If the law of Pennsylvania, now in question, had been in exist-
ence ait the date of this act of congress, we might hold it to have
been adopted by congress, and thus made a law of the United
States, and so valid. Because this act does, in effect, give the
force of an act of congress, to the then existing state laws on this
subject, so long as they should continue unrepealed by the State
which enacted them.
But the law on which these actions are founded, was not enacted
till 1803. What effect then can be attributed to so much of the
act of 1789 as declares that pilots shall continue to be regulated
in conformity "with such laws as the States may respectively here-
after enact for the purpose, until further legislative provision
shall be made by congress"?
If the States were divested of the power to legislate on this
subject by the grant of the commercial power to congress, it is
plain this act could not confer upon them power thus to legislate.
If the constitution excluded the States from making any law
regulating commerce, certainly congress cannot regrant, or in any
manner reconvey to the States that power. And yet this act of
1789 gives its sanction only to laws enacted by the States. This
necessarily implies a constitutional power to legislate; for only a
rule created by the sovereign power of a State acting in its legis-
lative capacity, can be deemed a law enacted by a State; and if
the State has so limited its sovereign power that it no longer ex-
tends to a particular subject, manifestly it cannot, in any proper
sense, be said to enact laws thereon. Entertaining these views,
we are brought directly and unavoidably to the consideration of
the question, whether the grant of the commercial power to con-
gress did per se deprive the States of all power to regulate pilots.
This question has never been decided by this court, nor, in our
judgment, has any case depending upon all the considerations
which must govern this one, come before this court. The grant
of commercial power to "congress does not contain any terms
COOLEY v. BOARD OF WARDENS OF PHILADELPHIA. 243
which expressly exclude the States from exercising an authority
over its subject-matter. If they are excluded, it must be be-
cause the nature of the power thus granted to congress requires
that a similar authority should not exist in the States. If it were
conceded on the one side that the nature of this power, like that
to legislate for the District of Columbia, is absolutely and totally
repugnant to the existence of similar power in the States, proba-
bly no one would deny that the grant of the power to congress,
as effectually and perfectly excludes the States from all future
legislation on the subject, as if express words had been used to
exclude them. And on the other hand, if it were admitted that
the existence of this power in congress, like the power of taxa-
tion, is compatible with the existence of a similar power in the
States, then it would be in conformity with the contemporary
exposition of the constitution (Federalist, \No. 32), and with the
judicial construction given from time to time by this court; after
the most deliberate consideration, to hold that the mere grant
of such a power to congress, did not imply a prohibition on the
States to exercise the same power; that it is not the mere exist-
ence of such a power, but its exercise by congress, which may be
incompatible with the exercise of the same power by the States,
and that the States may legislate in the absence of congressional
regulations. Sturges v. Crowninshield, 4 Wheat., 193; Houston
v. Moore, 5 Wheat., 1; Wilson v. Blackbird Creek Co., 2 Pet., 251.
The diversities of opinion, therefore, which have existed on this
subject have arisen from the different views taken of the nature
of this power. But when the nature of a power like this is
spoken of, when it is said that the nature of the power requires
that it should be exercised exclusively by congress, it must be in-
tended to refer to the subjects of that power, and to say they are
of such a nature as to require exclusive legislation by congress.
Now, the power to regulate commerce, embraces a vast field, con-
taining not only many, but exceedingly various subjects, quite
unlike in their nature; some imperatively demanding a single
uniform rule, operating equally on the commerce of the United
States in every port; and some, like the subject now in question,
as imperatively demanding that diversity, which alone can meet
the local necessities of navigation.
Either absolutely to affirm, or deny that the nature of this
power requires exclusive legislation by congress, is to lose sight
of the nature of the subjects of this power, and to assert con-
cerning all of them, what is really applicable but to a part. What-
ever subjects of this power are in their nature national, or admit
244 CASES ON CONSTITUTIONAL LAW.
only of one uniform system, or plan of regulation, may justly be
said to be of such a nature as to require exclusive legislation by
congress. That this cannot be affirmed of laws for the regulation
of pilots and pilotage, is plain. The act of 1789 contains a clear
and authoritative declaration by the first congress, that the nature
of this subject is such that until congress should find it necessary
to exert its power, it should be left to the legislation of the States;
that it is local and not national; that it is likely to be the best
provided for, not by one system, or plan of regulation, but by as
many as the legislative discretion of the several States should deem
applicable to the local peculiarities of the ports within their limits.
Viewed in this light, so much of this act of 1789, as declares
that pilots shall continue to be regulated "by such laws as the
States may respectively hereafter enact for that purpose," instead
of being held to be inoperative, as an attempt to confer on the
States a power to legislate, of which the constitution had deprived
them, is allowed an appropriate and important signification. It
manifests the understanding of congress, at the outset of the gov-
ernment, that the nature of this subject is not such as to require
its exclusive legislation. The practice of the States, and of the
national government, has been in conformity with this declara-
tion, from the origin of the national government to this time;
and the nature of the subject when examined, is such as to leave
no doubt of the superior fitness and propriety, not to say the ab-
solute necessity, of different systems of regulation, drawn from
local knowledge and experience, and conformed to local wants.
How, then, can we say that, by the mere grant of power to regu-
late commerce, the States are deprived of all the power to legis-
late on this subject, because from the nature of the power the
legislation of congress must be exclusive? This would be to affirm
that the nature of the power is, in this case, something different
from the nature of the subject to which, in such case, the power
extends, and that the nature of the power necessarily demands, in
all cases, exclusive legislation by congress, while the nature of one
of the subjects of that power, not only does not require such ex-
clusive legislation, but may be best provided for by many different
systems enacted by the States, in conformity with the circum-
stances of the ports within their limits. In construing an instru-
ment designed for the formation of a government, and in deter-
mining the extent of one of its important grants of power to
legislate, we can make no such distinction between the nature of
the power and the nature of the subject on which that power was
intended practically to operate, nor consider the grant more ex-
COOLEY v. BOARD OF WARDENS OF PHILADELPHIA. 245
tensive by affirming of the power, what is not true of its subject
now in question.
It is the opinion of a majority of the court that the mere grant
to congress of the power to regulate commerce, did not deprive
the States of power to regulate pilots, and that although congress
has legislated on this subject, its legislation manifests an inten-
tion, with a single exception, not to regulate this subject, but to
leave its regulation to the several States. To these precise ques-
tions, which are all we are called on to decide, this opinion must
be understood to be confined. It does not extend to the question
what other subjects, under the commercial power, are within the
exclusive control of congress, or may be regulated by the States
in the absence of all congressional legislation; nor to the general
question, how far any regulation of a subject by congress may be
deemed to operate as an exclusion of all legislation by the States
upon the same subject. We decide the precise questions before us,
upon what we deem sound principles, applicable to this particular
subject in the state in which the legislation of congress has left
it. We go no further.
We have not adverted to the practical consequences of holding
that the States possess no power to legislate for the regulation of
pilots, though in our apprehension these would be of the most
serious importance. For more than sixty years this subject has
been acted on by the States, and the systems of some of them
created and of others essentially modified during that period. To
hold that pilotage fees and penalties demanded and received dur-
ing that time have been illegally exacted, under color of void laws,
would work an amount of mischief which a clear conviction of
constitutional duty, if entertained, must force us to occasion, but
which could be viewed by no just mind without deep regret. Nor
would the mischief be limited to the past. If congress were now
to pass a law adopting the existing state laws, if enacted without
authority, and in violation of the constitution, it would seem to
us to be a new and questionable mode of legislation.
If the grant of commercial power in the constitution has de-
prived the States of all power to legislate for the regulation of
pilots, if their laws on this subject are mere usurpations upon the
exclusive power of the general government, and utterly void, it
may be doubted whether congress could, with propriety, recognize
them as laws, and adopt them as its own. acts; and how are the
legislatures of the States to proceed in future, to watch over and
amend these laws, as the progressive wants of a growing com-
merce will require, when the members of those legislatures are
246 CASES ON CONSTITUTIONAL LAW.
made aware that they cannot legislate on this subject without vio-
lating the oaths they have taken to support the constitution of
the United States?
We are of opinion that this state law was enacted by virtue of a
power, residing in the State to legislate, that it is not in conflict
with any law of congress; that it does not interfere with any
system which congress has established by making regulations, or
by intentionally leaving individuals to their own unrestricted
action; that this law is therefore valid, and the judgment of the
supreme court of Pennsylvania in each case must be affirmed.
McLean, J., and Wayne, J., dissented; and Daniel, J., although
he concurred in the judgment of the court, yet dissented from its
reasoning.
[MESSRS. JUSTICES McLEAN and DANIEL delivered separate
opinions.]
CASE OF THE STATE FREIGHT TAX.
READING RAILROAD COMPANY v. PENNSYLVANIA.
15 Wallace, 232. Decided 1872.
[The facts are sufficiently stated in the opinion of the court.]
MR. JUSTICE STRON T G delivered the opinion of the court.
We are called upon, in this case, to review a judgment of the
Supreme Court of Pennsylvania, affirming the validity of a stat-
ute of the State, which the plaintiffs in error allege to be repug-
nant to the Federal Constitution.
The case presents the question whether the statute in ques-
tion, so far as it imposes a tax upon freight taken up within the
State and carried out of it, or taken up outside the State and de-
livered within it, or, in different words, upon all freight other
than that taken up and delivered within the State, is not repug-
nant to the provision of the Constitution of the United States
which ordains "that Congress shall have power to regulate com-
merce with foreign nations and among the several States," or in
conflict with the provision that "no State shall, without the con-
sent of Congress, lay any imposts or duties on imports or exports,
except what may be absolutely necessary for executing its inspec-
tion laws."
THE STATE FREIGHT TAX. 247
The question is a grave one. It calls upon us to trace the line,
always difficult to be traced, between the limits of State sov-
ereignty in imposing taxation, and the power and duty of the
Federal government to protect and regulate interstate commerce.
While, upon the one hand, it is of the utmost importance that the
State should possess the power to raise revenue for all the pur-
poses of a State government, by any means, and in any manner
not inconsistent with the powers which the people of the States
have conferred upon the General Government, it is equally im-
portant that the domain of the latter should be preserved free
from invasion, and that no State legislation should be sustained
which defeats the avowed purposes of the Federal Constitution,
or which assumes to regulate, or control subjects committed by
that Constitution exclusively to the regulation of Congress.
Before proceeding, however, to a consideration of the direct
question whether the statute is in direct conflict with any pro-
vision of the Constitution of the United States, it is necessary to
have a clear apprehension of the subject and the nature of the tax
imposed by it. It has repeatedly been held that the constitution-
ality, or unconstitutionally of a State tax is to be determined,
not by the form or agency through which it is to be collected, but
by the subject upon which the burden is laid. This was decided
in the cases of Bank of Commerce v. New York City, 1 in The
Bank Tax Case, 2 Society for Savings v. Coite, 3 and Provident
Bank v. Massachusetts. 4 In all these cases it appeared that the
bank was required by the statute to pay the tax, but the decisions
turned upon the question, what was the subject of the tax, upon
what did the burden really rest, not upon the question from whom
the State exacted payment into its treasury. Hence, where it
appeared that the ultimate burden rested upon the property of the
bank invested in United States securities, it was held unconsti-
tutional, but where it rested upon the franchise of the bank, it
was sustained.
Upon what, then, is the tax imposed by the act of August 25th,
1864, to be considered as laid? Where does the substantial bur-
den rest? Very plainly it was not intended to be, nor is it in fact,
a tax upon the franchise of the carrying companies, or upon their
property, or upon their business measured by the number of tons
of freight carried. On the contrary, it is expressly laid upon the
freight carried. The companies are required to pay to the State
treasurer for the use of the Commonwealth, "on each two thousand
1 2 Black, 620. s 6 Id., 594.
2 2 Wallace, 200. * Ib., 611.
248 CASES ON CONSTITUTIONAL LAW.
pounds of freight so carried," a tax at the specified rate. And
this tax is not proportioned to the business done in transporta-
tion. It is the same whether the freight be moved one mile or
three hundred. If freight be put upon a road and carried at all,
tax is to be paid upon it, the amount of the tax being determined
by the character of the freight. And when it is observed that the
act provides "where the same freight shall be carried over and
upon different but continuous lines, said freight shall be charge-
able with tax as if it had been carried upon one line, and the whole
tax shall be paid by such one of said companies as the State
treasurer may select and notify thereof," no room is left for doubt.
The provision demonstrates that the tax has no reference to the
business of 'the companies. In the case of connected lines thou-
sands of tons may be carried over the line of one company without
any liability of that company to pay the tax. The State treasurer
is to decide which of several shall pay the whole. There is still
another provision in the act which shows that the burden of the
tax was not intended to be imposed upon the companies desig-
nated by it, neither upon their franchises, their property, or
their business. The provision is as follows: "Corporations whose
lines of improvements are used by others for the transportation
of freight, and whose only earnings arise from tolls charged for
such use, are authorized to add the tax hereby imposed to said
tolls, and to collect the same therewith." Evidently this con-
templates a liability for the tax beyond that of the company re-
quired to pay it into the treasury, and it authorizes the burden
to be laid upon the freight carried, in exemption of the corpora-
tion owning the roadway. It carries the tax over and beyond the
carrier to the thing carried. Improvement companies, not them-
selves authorized to act as carriers, but having only power to con-
struct and maintain roadways, charging tolls for the use thereof,
are generally limited by their charters in the rates of toll they are
allowed to charge. Hence the right to increase the tolls to the
extent of the tax was given them in order that the tax might come
from the freight transported, and not from the treasury of the
companies. It required no such grant to companies which not
only own their roadway, but have the right to transport thereon.
Though the tolls they may exact are limited, their charges for
carriage are not. They can, therefore, add the tax to the charge
for transportation without further authority. 5 In view of these
s Vide Boyle v. The Reading ley Railroad Co.'s Appeal, 62 Id.,
Railroad Company, 54 Pennsyl- 218.
vania State, 310; Cumberland Val-
THE STATE FREIGHT TAX. 249
provisions of the statute it is impossible to escape from the con-
viction that the burden of the tax rests upon the freight trans-
ported, or upon the consignor or consignee of the freight (im-
posed because the freight is transported), and that the company
authorized to collect the tax and required to pay it into the State
treasury is, in effect, only a tax-gatherer. The practical operation
of the law has been well illustrated by another 6 when commenting
upon a statute of the State of Delaware very similar to the one
now under consideration. He said, "The position of the carrier
under this law is substantially that of one to whom public taxes
are farmed out who undertakes by contract to advance to the
government a required revenue with power by suit or distress to
collect a like amount out of those upon whom the tax is laid. The
only imaginable difference is, that, in the case of taxes farmed
out, the obligation to account to the government is voluntarily
assumed by contract, and not imposed by law, as upon the carrier
under this act; also, that different means are provided for raising
the tax out of those ultimately chargeable with it."
Considering it, then, as manifest that the tax demanded by the
act is imposed, not upon the company, but upon the freight car-
ried, and because carried, we proceed to inquire whether, so far
as it affects commodities transported through the State, or from
points without the State to points within it, or from points within
the State to points without it, the act is a regulation of interstate
commerce. Beyond all question the transportation of freight, or
of the subjects of commerce, for the purpose of exchange or sale,
is a constituent of commerce itself. This has never been doubted,
and probably the transportation of articles of trade from one
State to another was the prominent idea in the minds of the
framers of the Constitution, when to Congress was committed the
power to regulate commerce among the several States. A power
to prevent embarrassing restrictions by any State was the thing
desired. The power was given by the same words and in the
same clause by which was conferred power to regulate commerce
with foreign nations. It would be absurd to suppose that the
transmission of the subjects of trade from the State to the buyer,
or from the place of production to the market, was not contem-
plated, for without that there could be no consummated trade
either with foreign nations or among the States. In his work
on the Constitution, 7 Judge Story asserts that the sense in which
Chancellor Bates in Clarke v. 7 1057.
Philadelphia, Wilmington, and
Baltimore Railroad Co.
250 CASES ON CONSTITUTIONAL LAW.
the word commerce is used in that instrument includes not only
traffic, but intercourse and navigation. And in the Passenger
Cases, 8 it was said: "Commerce consists in selling the superfluity,
in purchasing articles of necessity, as well productions as manu-
factures, in buying from one nation and selling to another, or in
transporting the merchandise from the seller to the buyer to gain
the freight." Nor does it make any difference whether this inter-
change of commodities is by land or by water. In either case
the bringing of the goods from the seller to the buyer is com-
merce. Among the States it must have been principally by land
when the Constitution was adopted.
Then, why is not a tax upon freight transported from State
to State a regulation of interstate transportation, and, therefore,
a regulation of commerce among the States? Is it not prescribing
a rule for the transporter, by which he is to be controlled in
bringing the subjects of commerce into the State, and in taking
them out? The present case is the best possible illustra-
tion. The legislature of Pennsylvania has in effect declared
that every ton of freight taken up within the State and carried
out, or taken up in other States and brought within her limits,
shall pay a specified tax. The payment of that tax is a condition
upon which is made dependent the prosecution of this branch of
commerce. And as there is no limit to the rate of taxation she
may impose, if she can tax at all, it is obvious the condition
may be made so onerous that an interchange of commodities with
other States would be rendered impossible. The same power that
may impose a tax of two cents per ton upon coal carried out of
the State, may impose one of five dollars. Such an imposition,
whether large or small, is a restraint of the privilege or right
to have the subjects of commerce pass freely from one State
to another without being obstructed by the intervention of State
lines. It would hardly be maintained, we think, that had the
State established custom-houses on her borders, wherever a rail-
road or canal comes to the State line, and demanded at these
houses a duty for allowing merchandise to enter or to leave the
State upon one of those railroads or canals, such an imposition
would not have been a regulation of commerce with her sister
States. Yet it is difficult to see any substantial difference be-
tween the supposed case and the one we have in hand. The
goods of no citizen of New York, New Jersey, Ohio, or of any
other State, may be placed upon a canal, railroad, or steamboat
s 7 Howard, 416.
THE STATE FREIGHT TAX. 251
within the State for transportation any distance, either into or
out of the State, without being subjected to the burden. Nor
can it make any difference that the legislative purpose was to
raise money for the support of the State government, and not
to regulate transportation. It is not the purpose of the law,
but its effect, which we are now considering. Nor is it at all
material that the tax is levied upon all freight, as well that
which is wholly internal as that embarked in interstate trade.
We are not at this moment inquiring further than whether tax-
ing goods carried because they are carried is a regulation of car-
riage. The State may tax its internal commerce, but if an act
to tax interstate or foreign commerce is unconstitutional, it is not
cured by including in its provisions subjects within the domain
of the State. Nor is a rule prescribed for carriage of goods
through, out of, or into a State any the less a regulation of trans-
portation because the same rule may be applied to carriage which
is wholly internal. Doubtless a State may regulate its internal
commerce as it pleases. If a State chooses to exact conditions
for allowing the passage or carriage of persons or freight through
it into another State, the nature of the exaction is not changed
by adding to it similar conditions for allowing transportation
wholly within the State.
"We may notice here a position taken by the defendants in
error, and stoutly defended in the argument, that the tax levied,
instead of being a regulation of commerce, is compensation for
the use of the works of internal improvement constructed under
the authority of the State and by virtue of franchises granted
by the State; in other words, that it is a toll for the use of the
highways, a part of which, in right of her eminent domain, the
State may order to be paid into her treasury. . . . :
All this, however, is abstract and apart from the case before
us. That the act of 1864 was not intended to assert a claim for
the use of the public works, or a claim for a part of the tolls, is
too apparent to escape observation. The tax was imposed upon
freight carried by steamboat companies, whether incorporated by
the State or not, and whether exercising privileges granted by the
State or not. It reaches freight passing up and down the Dela-
ware and the Ohio rivers carried by companies who derive no
rights from grants of Pennsylvania, who are exercising no part
of her eminent domain; and, as we have noticed heretofore, the
tax is not proportioned to services rendered, or to the use made
of canals or railways. It is the same whether the transportation
be long or short. It must therefore be considered an exaction, in
252 CASES ON CONSTITUTIONAL LAW.
right of alleged sovereignty, from freight transported, or the right
of transportation out of, or into, or through the State a burden
upon interstate intercourse.
If, then, this is a tax upon freight carried between States, and
a tax because of its transportation, and if such a tax is in effect
a regulation of interstate commerce, the conclusion seems to be
inevitable that it is in conflict with the Constitution of the United
States. It is not necessary to the present case to go at large into
the much-debated question whether the power given to Congress
by the Constitution to regulate commerce among the States is ex-
clusive. In the earlier decisions of this court it was said to have
been so entirely vested in Congress that no part of it can be
exercised by a State. 1 It has, indeed, often been argued, and
sometimes intimated, by the court that, so far as Congress has
not legislated on the subject, the States may legislate respecting
interstate commerce. Yet, if they ..can, why may they not add
regulations to commerce with "foreign nations beyond those made
by Congress, if not inconsistent with them, for the power over
both foreign and interstate commerce is conferred upon the Fed-
eral Legislature by the same words. And certainly it has never
yet been decided by this court that the power to regulate inter-
state, as well as foreign commerce, is not exclusively in Congress.
Cases that have sustained State Iaws 2 alleged to be regulations of
commerce among the States, have been such as related to bridges
or dams across streams wholly within a State, police or health
laws, or subjects of a kindred nature, not strictly commercial reg-
ulations. The subjects were such, as in Oilman v. Philadelphia, 2
it was said "can be best regulated by rules and provisions suggest-
ed by the varying circumstances of different localities, and limited
in their operation to such localities respectively." However this
may be, the rule has been asserted with great clearness, that when-
ever the- subjects over which a power to regulate commerce is as-
serted are in their nature national, or admit of one uniform sys-
tem or plan of regulation, they may justly be said to be of
such a nature as to require exclusive legislation by Congress. 3
Surely transportation of passengers or merchandise through a
State, or from one State to another, is of this nature. It is of
national importance that over that subject there should be but
one regulating power, for if one State can directly tax persons
1 Gibbons v. Ogden, 9 Wheaton, a Cooley v. Port Wardens, 12
1; Passenger Cases, 7 Howard, Howard, 299; Oilman v. Philadel-
283. phia, supra; Crandall v. The State
2 3 Wallace, 713. of Nevada, 6 Wallace, 42.
THE STATE FREIGHT TAX. 253
or property passing through it, or tax them indirectly by levying
a tax upon their transportation, every other may, and thus com-
mercial intercourse between States remote from each other may
be destroyed. The produce of Western States may thus be effect-
ually excluded from Eastern markets, for though it might bear
the imposition of a single tax, it would be crushed under the load
of many. It was to guard against the possibility of such com-
mercial embarrassments, no doubt, that the power of regulating
commerce among the States was conferred upon the Federal gov-
ernment.
In Almy v. The State of California, 4 it was held by this court
that a law of the State imposing a tax upon bills of lading for
gold or silver transported from that State to any port or place
without the State, was substantially a tax upon the transporta^-
tion itself, and was therefore unconstitutional. True, the deci-
sion was rested on the ground that it was a tax upon exports, and
subsequently, in Woodruff v. Parham, 5 the court denied the cor-
rectness of the reasons given for the decision; but they said at the
same time the case was well decided for another reason, viz., that
such a tax was a regulation of commerce a tax imposed upon
the transportation of goods from one State to another, over the
high seas, in conflict with that freedom of transit of goods and
persons between one State and another, which is within the rule
laid down in Crandall v. Nevada, 6 and with the authority of Con-
gress to regulate commerce among the States.
In Crandall v. The State of Nevada, where it appeared that
the legislature of the State had enacted that there should "be
levied 'and collected a capitation tax of one. dollar upon every
person leaving the State by any railroad, stage-coach, or other
vehicle engaged or employed in the business of transporting pas-
sengers for hire," and required the proprietors, owners, and cor-
porations so engaged to make monthly reports of the number of
persons carried, and to pay the tax, it was ruled that though re-
quired to be paid by the carriers, the tax was a tax upon passen-
gers, for the privilege of being carried out of the State, and
not a tax on the business of the carriers. For that reason it
was held that the law imposing it was invalid, as in conflict with
the Constitution of the United States. A majority of the court,
it is true, declined to rest the decision upon the ground that the
tax was a regulation of interstate commerce, and therefore be-
yond the power of the State to impose, but all the judges agreed
4 24 Howard, 169. e 6 Id., 35.
8 Wallace, 123.
254 CASES ON CONSTITUTIONAL LAW.
that the State law was unconstitutional and void. The Chief Jus-
tice and Mr. Justice Clifford thought the judgment should have
been placed exclusively on the ground that the act of the State
legislature was inconsistent with the power conferred upon Con-
gress io regulate commerce among the several States, and it does
not appear that the other judges held that it was not thus in-
consistent. In any view of the case, however, it decides that a
Staite cannot tax persons for passing through, or out of it. Inter-
state transportation of passengers is beyond the reach of a State
legislature. And if State taxation of persons passing from one
State to another, or a State tax upon interstate transportation
of passengers is unconstitutional, a fortiori, if possible, is a State
tax upon the carriage of merchandise from State to State in con-
flict with the Federal Constitution. Merchandise is the sub-
ject of commerce. Transportation is essential to commerce; and
every burden laid upon it is pro tanto a restriction. Whatever,
therefore, may be the true doctrine respecting the exclusiveness of
the power vested in Congress to regulate commerce among the
States, we regard it as established that no State can impose a tax
upon freight transported from State to State, or upon the trans-
porter because of such transportation.
But while holding this, we recognize fully the power of each
State to tax at its discretion its own internal commerce, and the
franchises, property, or business of its own corporations, so that
interstate intercourse, trade, or commerce, be not embarrassed or
restricted. That must remain free.
The conclusion of the whole is that, in our opinion, the act of
the legislature of Pennsylvania of August 25th, 1864, so far as
it applies to articles carried through the State, or articles taken
up in the State and carried out of it, or articles taken up without
the State and brought into it, is unconstitutional and void.
Judgment reversed, and the record is remitted for further pro-
ceedings in accordance with this opinion.
MB. JUSTICE SWAYNE (with whom concurred MR. JUSTICE
DAVIS), dissenting.
I dissent from the opinion just read. In my judgment, the tax
is imposed upon the business of those required to pay it. The
tonnage is only the mode of ascertaining the extent of the busi-
ness. That no discrimination is made between freight carried
wholly within the State, and that brought into or carried through
or out of it, sets this, as I think, in a clear light, and is con-
clusive on the subject.
PENSACOLA TEL. CO. v. WESTERN UNION TEL. CO. 255
PENSACOLA TELEGRAPH COMPANY v. WESTERN
UNION TELEGRAPH COMPANY.
96 U. S., 1. Decided 1877.
APPEAL from the Circuit of the United States for the Northern
District of Florida. . . . [The Pensacola Telegraph Co. was
incorporated in 1866 by the State of Florida, and granted the
exclusive right to establish and maintain telegraph lines in cer-
tain counties of Florida. Later, in 1874, the legislature of Flor-
ida empowered a railroad company to erect a telegraph line within
the territory of the exclusive grant to the Pensacola Company. In
1866, prior to the passage of the first of these acts, Congress had
enacted that telegraph lines might be established "through and
over any portion of the public domain of the United States, over
and along any of the military and post roads of the United
States which have been or may hereafter be declared such by
act of Congress, and over, under, or across the navigable streams
and waters of the United States." In June, 1867, the defend-
ants had filed with the Postmaster-General their acceptance of
the terms of the act, as required by law. In 1874 the railroad
company above mentioned authorized the defendant to erect a
telegraph line upon its right of way, whereupon the plaintiff
sought 'to enjoin the construction and use of the line.]
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
Since the case of Gibbons v. Ogden (9 Wheat., 1), it has never
been doubted that commercial intercourse is an element of com-
merce which comes within the regulating power of Congress.
Post-offices and post-roads are established to facilitate the trans-
mission of intelligence. Both commerce and the postal service
are placed within the power of Congress, because, being national
in their operation, they should be under the protecting care of
the national government.
The powers thus granted are-not confined to the instrumental-
ities of commerce, or the postal system known or in use when
the Constitution was adopted, but they keep pace with the prog-
ress of the country, and adapt themselves to the new develop-
ments of times and circumstances. They extend from the horse
with its rider to the stage-coach, from the sailing-vessel to the
steam-boat, from the coach and the steam-boat to the railroad,
and from the railroad to the telegraph, as these new agencies are
256 CASES ON CONSTITUTIONAL LAW.
successively brought into use to meet the demands of increasing
population and wealth. They were intended for the government
of the business to which they relate, at all times and under all
circumstances. As they were entrusted to the general govern-
ment for the good of the nation, it is not only the right, but the
duty, of Congress to see to it that intercourse among the States
and the transmission of intelligence are not obstructed or unnec-
essarily encumbered by State legislation.
The electric telegraph marks an epoch in the progress of time.
In a little more than a quarter of a century it has changed the
habits of business, and become one of the necessities of commerce.
It is indispensable as a means of inter-communication, but es-
pecially is it so in commercial transactions. The statistics of the
business before the recent reduction in rates show that more
than eighty per cent of all the messages sent by telegraph related
to commerce. Goods are sold and money paid upon telegraphic
orders. Contracts are made by telegraphic corespondence, car-
goes secured, and the movement of ships directed. The tele-
graphic announcement of the markets abroad regulates prices at
home, and a prudent merchant rarely enters upon an important
transaction without using the telegraph freely to secure informa-
tion.
It is not only important to the people, but to the govern-
ment. By means of it the heads of departments in Washington
are kept in close communication with all their various agencies
at home and abroad, and can know at almost any hour, by in-
quiry, what is transpiring anywhere that affects the interest they
have in charge. Under such circumstances, it cannot for a mo-
ment be doubted that this powerful agency of commerce and
inter-communication comes within the controlling power of Con-
gress, certainly as against hostile State legislation. In fact, from
the beginning, it seems to have been assumed that Congress might
aid in developing the system; for the first telegraph line of any
considerable extent ever erected was built between "Washington
and Baltimore, only a little more than thirty years ago, with
money appropriated by Congress for that purpose (5 Stat., 618);
and large donations of land and money have since been made
to aid in the construction of other lines (12 Stat., 489, 772; 13
id., 365; 14 id., 292). It is not necessary now to inquire
whether Congress may assume the telegraph as part of the posial
service, and exclude all others from its use. The present case
is satisfied, if we find that Congress has power, by appropriate
PENSACOLA TEL. CO. v. WESTERN UNION TEL. CO. 257
legislation, to prevent the States from placing obstructions in the
way of its usefulness.
The government of the United States, within the scope of its
powers, operates upon every foot of territory under its jurisdic-
tion. It legislates for the whole nation, and is not embarrassed
by State lines. Its peculiar duty is to protect one part of the
country from encroachments by another upon the national rights
which belong to all.
The State of Florida has attempted to confer upon a single
corporation the exclusive right of transmitting intelligence by
telegraph over a certain portion of its territory. This embraces
the two westernmost counties of the State, and extends from
Alabama to the Gulf. No telegraph line can cross the State from
east to west, or from north to south, within these counties, except
it passes over this territory. Within it is situated an important
seaport, at which business centers, and with which those engaged
in commercial pursuits have occasion more or less to communi-
cate. The United States have there also the necessary machin-
ery of the national government. They have a navy-yard, forts,
custom-houses, courts, post-offices, and the appropriate officers
for the enforcement of the laws. The legislation of Florida, if
sustained, excludes all commercial intercourse by telegraph be-
tween the citizens of the other States and those residing upon
this territory, except by the employment of this corporation. The
United States cannot communicate with their own officers by tele-
graph except in the same way. The State, therefore, clearly has
attempted to regulate commercial intercourse between its citizens
and those of other States, and to control the transmission of all
telegraphic correspondence within its own jurisdiction.
It is unnecessary to decide how far this might have been done
if Congress had not acted upon the same subject, for it has acted.
The statute of July 24, 1866, in effect, amounts to a prohibi-
tion of all State monopolies in this particular. It substantially
declares, in the interest of commerce and the convenient trans-
mission of intelligence from place to place by the government of
the United States and its citizens, that the erection of telegraph
lines shall, so far as State interference is concerned, be free to
all who will submit to the conditions imposed by Congress, and
that corporations organized under the laws of one State for
constructing and operating telegraph lines shall not be excluded
by another from prosecuting their business within its jurisdiction,
if they accept the terms proposed by the national government for
this national privilege. To this extent, certainly, the statute is
17
258 CASES ON CONSTITUTIONAL LAW.
a legitimate regulation of commercial intercourse among the
States, and is appropriate legislation to carry into execution the
powers of Congress over the postal service. It gives no foreign
corporation the right to enter upon private property without the
consent of the owner and erect the necessary structures for its
business; hut it does provide, that, whenever the consent of the
owner is obtained, no State legislation shall prevent the occupa-
tion of post-roads for telegraph purposes by such corporations as
are willing to avail themselves of its privileges.
It is insisted, however, that the statute extends only to such
military and post roads as are upon the public domain; but this,
we think, is not so. The language is, "Through and over any por-
tion of the public domain of the United States, over and along any
of the military or post roads of the United States which have been
or may hereafter be declared such by act of Congress, and over,
under, or across the navigable streams or waters of the United
States." There is nothing to indicate an intention of limiting
the effect of the words employed, and they are, therefore, to be
given their natural and ordinary signification. Read in this way,
the grant evidently extends to the public domain, the military and
post roads, and the navigable waters of the United States. These
are all within the dominion of the national government to the
extent of the national powers, and are, therefore, subject to legit-
imate congressional regulation. Xo question arises as to the au-
thority of Congress to provide for the appropriation of private
property to the uses of the telegraph, for no such attempt has
been made. The use of public property alone is granted. If pri-
vate property is required, it must, so far as the present legisla-
tion is concerned, be obtained by private arrangement with its
owner. No compulsory proceedings are authorized. State sov-
ereignty under the Constitution is not interfered with. Only na-
tional privileges are granted.
The State law in question, so far as it confers exclusive rights
upon the Pensacola Company, is certainly in conflict with this
legislation of Congress. To that extent it is, therefore, inopera-
tive as against a corporation of another State entitled to the priv-
ileges of the act of Congress. Such being the case, the charter of
the Pensacola Company does not exclude the Western Union Com-
pany from the occupancy of the right of way of the Pensacola and
Louisville Railroad Company under the arrangement made for
that purpose. . . .
Upon principles of comity, the corporations of one State are
permitted to do business in another, unless it conflicts with the
GLOUCESTER FERRY CO. v. PENNSYLVANIA. 259
law, or unjustly interferes with the rights of the citizens of the
State into which they come. Under such circumstances, no cit-
izen of a State can enjoin a foreign corporation from pursuing
its business. Until the State acts in its sovereign capacity, indi-
vidual citizens cannot complain. The State must determine for
itself when the public good requires that its implied assent to the
admission shall be withdrawn. Here, so far from withdrawing
its assent, the State, by its legislation of 1874, in effect, invited
foreign telegraph corporations to come in. Whether that legisla-
tion, in the absence of congressional action, would have been suffi-
cient to authorize a foreign corporation to construct and operate
a line within the two counties named, we need not decide; but
we are clearly of the opinion, that, with such action and a right
of way secured by private arrangement with the owner of the
land, this defendant corporation cannot be excluded by the pres-
ent complainant.
Decree affirmed.
MR. JUSTICE FIELD and MR. JUSTICE HUNT dissented.
GLOUCESTER FERRY COMPANY v. PENNSYLVANIA.
114 U. S., 196. Decided 1885.
[The Gloucester Ferry Company, a New Jersey corporation,
established a ferry in 1865 between Gloucester, New Jersey, and
Philadelphia. At each place it had a dock; the one at Glouces-
ter it owns, the one at Philadelphia it leases. Its entire busi-
ness consists in ferrying passengers and freight across the river.
It has never had any property, real or personal, in Pennsylvania,
other than the lease of the dock mentioned. Its boats are reg-
istered at the port of Camden, New Jersey, and remain in Penn-
sylvania only long enough to discharge and receive passengers
and freight. On June, 7, 1879, a statute was passed in Penn-
sylvania imposing taxes, with certain exceptions, on all corpora-
tions, domestic or foreign, doing business or employing capital in
Pennsylvania. In July, 1880, the State of Pennsylvania stated
an account against the company showing the sum of $2,593.96 to
be due the Commonwealth for taxes from 1865 to 1879. An
appeal was taken to the Court of Common Pleas of Philadelphia.]
The Court of Common Pleas held that the taxes could not be
260 CASES ON CONSTITUTIONAL LAW.
lawfully levied, for there was no other business carried on by the
company in Pennsylvania except the landing and receiving of
passengers and freight, which is a part of the commerce of the
country, and protected by the Constitution from the imposition
of burdens by State legislation. It, therefore, gave judgment in
^avor of the company. The case being carried on a writ of error
to the Supreme Court of the State, the judgment was reversed
and judgment ordered in favor of the Commonwealth for the
amount mentioned. To review this latter judgment, the case
was brought here. . . .
ME. JUSTICE FIELD delivered the opinion of the court. He
stated the facts as above recited, and continued:
. The Supreme Court of the State, in giving its decision in this
case, stated that the single question presented for consideration
was whether the company did business within the State of Penn-
sylvania during the period for which the taxes. were imposed; and
it held that it did do business there because it landed and received
passengers and freight at its wharf in Philadelphia, observing that
its whole income was derived from the transportation of freight
and passengers from its wharf at Gloucester to its wharf at Phila-
delphia, and from its wharf at Philadelphia to its wharf at Glouces-
ter; that at each of these points its main business, namely, the
receipt and landing of freight and passengers, was transacted;
that for such business it was dependent as much upon the one
place as upon the other; that, as it could hold the wharf at
Gloucester, which it owned in fee, only by purchase by virtue of
the statutory will of the Legislature of Xew Jersey, so it could
hold by lease the one in Philadelphia only by the implied consent
of the Legislature of the Commonwealth; and that, therefore, it
"was dependent equally, not only for its business, but its power
to do that business, upon both States, and might, therefore, be
taxed by both." 98 Penn. St., 105, 116.
As to the first reason thus expressed, it may be answered that
the business of landing and receiving passengers and freight at
the wharf in Philadelphia is a necessary incident to, indeed is a
part of, their transportation across the Delaware Eiver from New
Jersey. Without it that transportation would be impossible.
Transportation implies the taking up of persons or property at
some point and putting them down at another. A tax, therefore,
upon such receiving and landing of passengers and freight is a
tax upon their transportation; that is, upon the commerce be-
tween the two States involved in such transportation.
GLOUCESTER FERRY CO. v. PENNSYLVANIA. 261
It matters not that the transportation is made in ferry-boats,
which pass between the States every hour of the day. The means
of transportation of persons and freight between the States does
not change the character of the business as one of commerce, nor
does the time within which the distance between the States may
be traversed. Commerce among the States consists of intercourse
and traffic between their citizens, and includes the transportation
of persons and property, and the navigation of public waters for
that purpose, as well as the purchase, sale, and exchange of com-
modities. The power to regulate that commerce, as well as com-
merce with foreign nations, vested in Congress, is the power to
prescribe the rules by which it shall be governed, that is, the con-
ditions upon which it shall be conducted; to determine when it
shall be free and when subject to duties or other exactions. The
power also embraces within its control all the instrumentalities
by which that commerce may be carried on, and the means by
which it may be aided and encouraged. The subjects, therefore,
upon which the power may be exerted are of infinite variety.
While with reference to some of them, which are local and lim-
ited in their nature or sphere of operation, the States may pre-
scribe regulations until Congress intervenes and assumes control
of them; yet, when they are national in their character, and re-
quire uniformity of regulation affecting alike all the States, the
power of Congress is exclusive. Necessarily that power alone can
prescribe regulations which are to govern the whole country.
And it needs no argument to show that the commerce with for-
eign nations and between the States, which consists in the trans-
portation of persons and property between them, is a subject
of national character, and requires uniformity of regulation. Con-
gress alone, therefore, can deal with such transportation; its non-
action is a declaration that it shall remain free from burdens im-
posed by State legislation. Otherwise there would be no protec-
tion against conflicting regulations of different States, each legis-
lating in favor of its own -citizens and products, and against those
of other States. It was from apprehension of such conflicting
and discriminating State legislation, and to secure uniformity of
regulation, that the power to regulate commerce with foreign
nations and among the States was vested in Congress.
Nor does it make any difference whether such commerce is car-
ried on by individuals or by corporations. "Welton v. Missouri,
91 U. S., 275; Mobile v. Kimball, 102 U. S., 691. As was said,
in Paul v. Virginia, 8 Wall., 168, at the time of the formation
of the Constitution, a large part of the commerce of the world
262 CASES ON CONSTITUTIONAL LAW.
was carried on by corporations; and the East India Company, the
Hudson Bay Company, the Hamburgh Company, the Levant Com-
pany, and the Virginia Company were mentioned as among the
corporations which, from the extent of their operations, had be-
come celebrated throughout the commercial world. The grant of
power is general in its terms, making no reference to the agencies
by which commerce may be carried on. It includes commerce
by whomsoever conducted, whether by individuals or by cor-
porations. At the present day, nearly all enterprises of a commer-
cial character, requiring for their successful management large
expenditures of money, are conducted by corporations. The usual
means of transportation on the public waters, where expedition
is desired, are vessels propelled by steam; and the ownership of
a line of such vessels generally requires an expenditure exceeding
the resources of single individuals. Except in rare instances, it is
only by associated capital furnished by persons united in cor-
porations, that the requisite means are provided for such expendi-
tures.
As to the second reason given for the decision below, that the
company could not lease its wharf in Philadelphia except by the
implied consent of the Legislature of the Commonwealth, and
thus is dependent upon the Commonwealth to do its business, and
therefore can be taxed there, it may be answered that no foreign
or interstate commerce can be carried on with the citizens of
a State without the use of a wharf, or other place within its limits
on which passengers and freight can be landed and received, and
the existence of power in a State to impose a tax upon the cap-
ital of all corporations engaged in foreign or interstate commerce
for the use of such places would be inconsistent with and en-
tirely subversive of the power vested in Congress over such com-
merce. Nearly all the lines of steamships and of sailing vessels
between the United States and England, France, Germany, and
other countries of Europe, and between the United States and
South America, are owned by corporations; and if by reason of
landing or receiving passengers and freight at wharves, or other
places in a State, they can be taxed by the S<tate on their capital
stock on the ground that they are thereby doing business within
her limits, the taxes which may be imposed may embarrass, im-
pede, and even destroy such commerce with the citizens of the
State. If such a tax can be levied at all, its amount will rest
in the discretion of the State. It is idle to say that the interests
of the State would prevent oppressive taxation. Those engaged
in foreign and interstate commerce are not bound to trust to
GLOUCESTER FERRY CO. v. PENNSYLVANIA. 263
its moderation in that respect; they require security. And they
may rely on the power of Congress to prevent any interference by
the State until the act of commerce, the transportation of passen-
gers and freight, is completed. The only interference of the State
with the landing and receiving of passengers and freight, which is
permissible, is confined to such measures as will prevent con-
fusion among the vessels, and collision between them, insure their
safety and convenience, and facilitate the discharge or receipt
of their passengers and freight, which fall under the general
head of port regulations, of which we shall presently speak.
It is true that the property of corporations engaged in for-
eign or interstate commerce, as well as the property of corpora-
tions engaged in other business, is subject to State taxation, pro-
vided always it be within the jurisdiction of the State. As
said by Chief Justice Marshall in McCulloch v. Maryland, 4
Wheat., 316, 429, "all subjects over which the sovereign power of
a State extends are objects of taxation; but those over which it
does not extend are, upon the soundest principles, exempt from
taxation. This proposition may almost be pronounced self-evi-
dent/' . . . [Here follows a discussion of Hays v. Pacific Mail
Steamship Co., 17 Howard, 596; Morgan v. Parham, 16 Wallace,
471; St. Louis v. The Ferry Co., 11 Wallace, 423, and Kailroad
Co. v. Pennsylvania, 15 Wallace, 300.]
In the recent case of Commonwealth of Pennsylvania v. Stand-
ard Oil Co., 101 Penn. St., 119, the liability of foreign corpora-
tions doing business within that State is elaborately considered by
its Supreme Court. The corporation was doing business there, and
it was contended on the part of the Commonwealth that the tax
should be imposed upon all of the capital stock of the com-
pany; while on the other side it was urged that only so much of
the stock was intended, by the statute, to be taxed as was repre-
sented by property of the company invested and used in the
State. In giving its decision the court said that it had been
repeatedly decided and was settled law that a tax upon the cap-
ital stock of a company is a tax upon its property and assets (cit-
ing to that effect a large number of decisions); that it was un-
doubtedly competent for .the legislature to lay a franchise or li-
cense tax upon foreign corporations for the privilege of doing
business within the State, but that the tax in that case was in
no sense a license tax; that the State had never granted a license
to the Standard Oil Company to do business there, but merely
taxed its property, that is, its capital stock, to the extent that it
brought such property within its borders in the transaction of its
264 CASES ON CONSTITUTIONAL LAW.
business; that the position of the Commonwealth, that a for-
eign corporation entering the State to do business brought its
entire capital, was ingenious but unsound; that it was a funda-
mental principle that, in order to be taxed, the person must have
a domicil in the State, and the thing must have a situs therein;
that persons and property in transitu could not be taxed; that the
domicil of a corporation was in the State of its origin and it
could not emigrate to another sovereignty; that the domicil of the
Standard Oil Company was in Ohio, and when it sent its agents
into the State to transact business it no more entered the State
in point of fact than any other foreign corporation, firm, or in-
dividual who sent an agent there to open an office or branch
house, or brought its capital there constructively; that it would
be as reasonable to assume that a business firm in Ohio brought
its entire capital there because it sent its agent to establish a
branch of its business, as to hold that the Standard Oil Com-
pany, by employing certain persons in the State to transact a
portion of its business, thereby brought all its property or cap-
ital stock within the jurisdiction of the State; that there was
neither reason nor authority for such a proposition; that the
company was taxable only to the extent that it brought its prop-
erty within the State; and that its capital stock, as mentioned
in the act of the legislature, must be construed to mean so much
of the capital stock as was measured by the property actually
brought within the State by the company in the transaction of
its business. The justice who delivered the opinion of the court
added, speaking for himself, that he conceded the power of the
Commonwealth to exclude foreign corporations altogether from
her borders, or to impose a license tax so heavy as to amount
to the same thing; but he denied, great and searching as her
taxing power is, that she could tax either persons or property
not within her jurisdiction. "A foreign corporation," he said,
"'has no domicil here, and can have none; hence it cannot be
said to draw to itself the constructive possession of its property
located elsewhere. There are a large number of foreign insurance
companies doing business here under license from the State. Some
of them have a very large capital. It is usually invested at the
domicil of the company. If the position of the Commonwealth
is correct, she can tax the entire property of the Eoyal Insurance
Company, although the same is located almost wholly in Eng-
land, or the assets of the New York Mutual, located in New
York."
Under this decision there is no property held by the Gloucester
GLOUCESTER FERRY CO. v. PENNSYLVANIA. 265
Ferry Company, which can be the subject of taxation in Pennsyl-
vania, except the lease of the wharf in that State. Whether that
wharf is taxed to the owner or to the lessee it matters not, for no
question here is involved in such taxation. It is admitted that it
could be taxed by the State according to its appraised value. The
ferry-boats of the company are registered at the port of Camden
in New Jersey, and according to the decisions in Hays v. The
Pacific Mail Steamship Co., and in Morgan v. Parham, they can
be taxed only at their home port. According to the decision
in the Standard Oil Company case, and by the general law on
the subject, the company has no domicil in Pennsylvania, and
its capital stock representing its property is held outside of its
limits. It is solely, therefore, for the business of the company in
landing and receiving passengers at the wharf in Philadelphia that
the tax is laid, and that business, as already said, is an essential
part of the transportation between the States of New Jersey and
Pennsylvania, which is itself interstate commerce. While it is
conceded that the property in a State belonging to a foreign cor-
poration engaged in foreign or interstate commerce may be taxed
equally with like property of a domestic corporation engaged in
that business, we are clear that a tax or other burden imposed
on the property of either corporation because it is used to carry
on that commerce, or upon the transportation of persons or prop-
erty, or for the navigation of the public waters over which the
transportation is madej is invalid and void as an interference
with, and an obstruction of, the power of Congress in the regula-
tion of such commerce. This proposition is supported by many
adjudications. . . .
[Here follow statements of Gibbons v. Ogden, 9 Wheaton, 1;
Steamship Co. v. Port Wardens, 6 Wallace, 31; Beading Eailroad
Co. v. Pennsylvania, 15 Wallace, 232; and Henderson v. The
Mayor of New York, 92 U. S., 259.]
\
These cases would seem to be decisive of the character of the
business which is the subject of taxation in the present case. Ee-
ceiving and landing passengers and freight is incident to their
transportation. Without both there could be no such thing as
their transportation across the river Delaware. The transporta-
tion, as to passengers, is not completed until, as said in the Hen-
derson case, they are disembarked at the pier of the city to which
they are carried; and, as to freight, until it is landed upon such
pier. And all restraints by exactions in the form of taxes upon
such transportation, or upon acts necessary to its completion, are
266 CASES ON CONSTITUTIONAL LAW.
so many invasions of the exclusive power of Congress to regu-
late that portion of commerce between the States.
The cases where a tax or toll upon vessels is allowed to meet
the expenses incurred in improving the navigation of waters tra-
versed by them, as by the removal of rocks, the construction of
dams and locks to increase the depth of water and thus extend
the line of navigation, or the construction of canals around falls,
rest upon a different principle. The tax in such cases is con-
sidered merely as compensation for the additional facilities thus
provided in the navigation of the waters. Kellogg v. Union Co.,
12 Conn., 7; Thames Bank v. Lovell, 18 Conn., 500; McReynolds
v. Smallhouse, 8 Bush, 447.
Upon similar grounds, what are termed harbor dues or port
charges, exacted by the State from vessels in its harbors, or from
their owners, for other than sanitary purposes, are sustained. We
say for other than sanitary purposes; for the power to prescribe
regulations to protect the health of the community, and prevent
the spread of disease, is incident to all local municipal author-
ity, however much such regulations may interfere with the move-
ments of commerce. But, independently of such measures, the
State may prescribe regulations for the government of vessels
whilst in its harbors; it may provide for their anchorage or moor-
ing, so as to prevent confusion and collision; it may designate the
wharves at which they shall discharge and receive their passengers
and cargoes and require their removal from- the wharves when not
thus engaged, so as to make room for other vessels. It may appoint
officers to see that the regulations are carried out, and impose
penalties for refusing to obey the directions of such officers; and
it may impose a tax upon vessels sufficient to meet the expenses
attendant upon the execution of the regulations. The author-
ity for establishing regulations of this character is found in the
right and duty of the supreme power of the State to provide for
the safety, convenient use, and undisturbed enjoyment of prop-
erty within its limits; and charges incurred in enforcing the
regulations may properly be considered as compensation for the
facilities thus furnished to the vessels. Vanderbilt v. Adams,
7 Cowen, 349, 351. Should such regulations interfere with the
exercise of the commercial power of Congress, they may at any
time be superseded by its action. It was not intended, however,
by the grant to Congress to supersede or interfere with the power
of the States to establish police regulations for the better protec-
tion and enjoyment of property. Sometimes, indeed, as remarked
by Mr. Cooley, <the line of distinction between what constitutes an
GLOUCESTER FERRY CO. v. PENNSYLVANIA. 267
interference with commerce and what is a legitimate police reg-
ulation is exceedingly dim and shadowy, and he acids: "It is
not doubted that Congress has the power to go beyond the gen-
eral regulations of commerce which it is accustomed to estab-
lish, and to descend to the most minute directions if it shall be
deemed advisable, and that to whatever extent ground shall be
covered by those directions, the exercise of State power is ex-
cluded. Congress may establish police regulations as well as the
States, confining their operations to the subjects over which it is
given control by the Constitution; but as the general police power
can better be exercised under the provisions of the local author-
ity, and mischiefs are not likely to spring therefrom so long as
the power to arrest collision resides in the National Congress, the
regulations which are made by Congress do not often exclude the
establishment of others by the State covering very many particu-
lars." Cooley's Constitutional Limitations, 732.
The power of the States to regulate matters of internal police
includes the establishment of ferries as well as the construction
of roads and bridges. In Gibbons v. Ogden, Chief Justice Mar-
shall said that laws respecting ferries, as well as inspection laws,
quarantine laws, health laws, and laws regulating the internal
commerce of the States, are component parts of an immense mass
of legislation, embracing everything within the limits of a State
not surrendered to the general government; but in this lan-
guage he plainly refers to ferries entirely within the State, and
not to ferries transporting passengers and freight between the
States and a foreign country; for the power vested in Congress,
he says, comprehends every species of commercial intercourse be-
tween the United States and foreign countries. No sort of trade,
he adds, can be carried on between this country and another to
which the power does not extend; and what is true of foreign
commerce is also true of commerce between States over the waters
separating them. Ferries between one of the States and a foreign
country cannot be deemed, therefore, beyond the control of Con-
gress under the commercial power. They are necessarily governed
by its legislation on the importation and exportation of merchan-
dise and the immigration of foreigners, that is, are subject to its
regulation in that respect; and if they are not beyond the control
of the commercial power of Congress, neither are ferries over
wafers separating States. Congress has passed various laws re-
specting such international and interstate ferries, the validity of
which is not open to question. It has provided that vessels used
exclusively as ferry-boats, carrying passengers, baggage, and mer-
268 CASES ON CONSTITUTIONAL LAW.
chandise, shall not be required to enter and clear, nor shall their
masters be required to present manifests, or to pay entrance or
clearance fees, or fees for receiving or certifying manifests; "but
they shall, upon arrival in the United States, be required to re-
port such baggage and merchandise to the proper officer of the
customs, according to law," Eev. Stat., 2792; that the lights
for ferry-boats shall be regulated by such rules as the Board of
Supervising Inspectors of Steam Vessels shall prescribe, Kev.
Stat., 4233, Rule 7; that any foreign railroad company or cor-
poration, whose road enters the United States by means of a ferry
or tug-boat, may own such boat, and that it shall be subject
to no other or different restrictions or regulations in such employ-
ment than if owned by a citizen of the United States, Rev. Stat.,
4370; that the hull and boilers of every ferry-boat propelled
by steam shall be inspected, and provisions of law for 'the better
security of life, which may be applicable to them, shall, by reg-
ulations of the supervising inspectors, be required to be com-
plied with before a certificate of inspection be granted; and that
they shall not be navigated without a licensed engineer and a
licensed pilot, Rev. Stat., 4426.
It is true that, from the earliest period in the history of the
government, the States have authorized and regulated ferries, not
only over waters entirely within their limits, but over waters
separating them; and it may be conceded that in many respects,
the States can more advantageously manage such inter-State fer-
ries than the general government; and that the privilege of keep-
ing a ferry, with a right to take toll for passengers and freight,
is a franchise grantable by the State, to be exercised within
such limits and under such regulations as may be required for
the safety, comfort, and convenience of the public. Still the
fact remains that such a ferry is a means, and a necessary means,
of commercial intercourse between the States bordering on their
dividing waters, and it must, therefore, be conducted without the
imposition by the States of taxes or other burdens upon the com-
merce between them. Freedom from such impositions does not,
of course, imply exemption from reasonable charges, as com-
pensation for the carriage of persons, in the way of tolls or fares,
or from the ordinary taxation to which other property is subjected,
any more than like freedom of transportation on land implies
such exemption. Reasonable charges for the use of property,
either on water or land, are not an interference with the freedom
of transportation between the States secured under the commer-
cial power of Congress. Packet Co. v. Keokuk, 95 U. S., 80;
LEISY v. HARDIN. 269
Packet Co. v. St. Louis, 100 U. S., 423; Vicksburg v. Tobin, 100
U. S., 430; Packet Co. v. Catlettsburg, 105 U. S., 559; Transporta-
tion Co. v. Parkersburg, 107 U. S., 691. That freedom implies
exemption from charges other than such as are imposed by way
of compensation for the use of the property employed, or for
facilities afforded for its use, or as ordinary taxes upon the value
of the property. How conflicting legislation of the two States on
the subject of ferries on waters dividing them is to be met and
treated is not a question before us for consideration. Pennsylvania
has never attempted to exercise its power of establishing and reg-
ulating ferries across the Delaware Eiver. Any one, so far as
her laws, are concerned, is free, as we are informed, to establish
such ferries as he may choose. No license fee is exacted from
ferry-keepers. She merely exercises the right to designate the
places of landing, as she does the places of landing for all vessels
engaged in commerce. The question, therefore, respecting the tax
in the present case is not complicated by any action of that State
concerning ferries. However great her power, no legislation on
her part can imnose a tax on that portion of inter-State commerce
which is involved in the transportation of persons and freight,
whatever be the instrumentality by which it is carried on.
It follows that upon the case stated the tax upon the ferry com-
pany was illegal and void.
TJie judgment of the Supreme Court of the State of Pennsyl-
vania must, therefore, be reversed and the cause remanded for
further proceedings in conformity with this opinion.
LEISY v. HAEDIN.
135 U. S., 100. Decided 1890.
[Error to the Supreme Court of Iowa. The plaintiffs, who
were brewers doing business at Peoria, Illinois, had shipped beer
in sealed packages to Keokuk, Iowa, where it was offered for sale
in the original packages. A certain quantity of the beer was
seized by Hardin, the city marshal of Keokuk, under color of
authority of the statutes of Iowa which forbade the manufacture
or sale of intoxicating liquors, or keeping them with intent to
sell, except for medicinal, chemical, pharmaceutical and sacra-
mental purposes as allowed in the act. The plaintiffs brought
270 CASES ON CONSTITUTIONAL LAW.
replevin against Hardin to recover the beer seized, and the local
court gave judgment for the plaintiffs on the ground that the
State enactment was invalid. This judgment was reversed by
the Supreme Court of Iowa.]
Mr. CHIEF JUSTICE FULLER, after stating the case, delivered
the opinion of the court.
The power vested in Congress "to regulate commerce with for-
eign nations, and among the several States, and with the Indian
tribes," is the power to prescribe the rule by which that commerce
is to be governed, and is a power complete in itself, acknowledg-
ing no limitations other than those prescribed in the Constitution.
It is co-extensive with the subject on which it acts and cannot be
stopped at the external boundary of a State, but must enter its in-
terior and must be capable of authorizing the disposition of those
articles which it introduces, so that they may become mingled
with the common mass of property within the territory entered.
Gibbons v. Ogden, 9 Wheat., 1; "Brown v. Maryland, 12 "Wheat.,
419.
And while, by virtue of its jurisdiction over persons and prop-
erty within its limits, a State may provide for the security of the
lives, limbs, health and comforts of persons, and the protection
of property so situated, yet a subject-matter which has been con-
fided exclusively to Congress by the Constitution is not within the
jurisdiction of the police power of the State, unless placed there
by congressional action. Henderson v. Mayor of Xew York, -92
IT. S., 259; Eailroad Co. v. Husen, 95 U. S., 465; Walling v. Mich-
igan, 116 U. S., 466; Bobbins v. Shelby Taxing District, 120 IT. S.,
489. The power to regulate commerce among the States is a
unit, but if particular subjects within its operation do not require
the application of a general or uniform system, the States may
legislate in regard to them with a view to local needs and cir-
cumstances, until Congress otherwise directs; but the power thus
exercised by the States is not identical in its extent with the power
to regulate commerce between the States. The power to pass laws
in respect to internal commerce,. inspection laws, quarantine laws,
health laws, and laws in relation to bridges, ferries, and highways,
belongs to the class of powers pertaining to locality, essential to
local intercommunication, to the progress and development of local
prosperity, and to the protection, the safety, and welfare of society,
originally necessarily belonging to, and upon the adoption of the
Constitution reserved by, the States, except so far as falling
within the scope of a power confided to the general government.
LEISY v. HARDIN. 271
Where the subject-matter requires a uniform system between the
States, the power controlling it is vested exclusively in Congress,
and cannot be encroached upon by the States; but where, in
relation to the subject matter, different rules may be suitable for
different localities, the States may exercise powers which, though
they may be said to partake of the nature of the power granted
to the general government, are strictly not such, but are simply
local powers, wHich have full operation until or unless circum-
scribed by the action of Congress in effectuation of the general
power. Cooley v. Port Wardens of Philadelphia, 12 How., 299.
It was stated in the 32d number of the Federalist that the
States might exercise concurrent and independent power in all
cases but three: First, where the power was lodged exclusively
in the federal constitution; second, where it was given to the
United States and prohibited to the States; third, where, from
the nature and subjects of the power, it must be necessarily ex-
ercised by the national government exclusively. But it is easy to
see that Congress may assert an authority under one of the granted
powers, which would exclude the exercise by the States upon
the same subject of a different but similar power, between which
and that possessed by the general government no inherent repug-
nancy existed.
Whenever, however, a particular power of the general govern-
ment is one which must necessarily be exercised by it, and Con-
gress remains silent, this is not only not a concession that the pow-
ers reserved by the States may be exerted as if the specific power
had not been elsewhere reposed, but, on the contrary, the only
legitimate conclusion is that the general government intended that
power should not be affirmatively exercised, and the action of the
States cannot be permitted to effect that which would be incom-
patible with such intention. Hence, inasmuch as interstate com-
merce, consisting in the transportation, purchase, sale, and ex-
change of commodities, is national in its character, and must be
governed by a uniform system, so long as Congress does not pass
any law to regulate it, or allowing the States so to do, it thereby
indicates its will that such commerce shall be free and untram-
melled. County of Mobile v. Kimball, 102 U. S., 691; Brown v.
Houston, 114 U. S., 622, 631; Wabash, St. Louis, &c., Railway v.
Illinois, 118 U. S., 557; Bobbins v. Shelby Taxing District, 120
U. S., 489, 493.
That ardent spirits, distilled liquors, ale and beer, are subjects
of exchange, barter and traffic, like any other commodity, in which
a right of traffic exists, and are so recognized by the usages of the
272 CASES ON CONSTITUTIONAL LAW.
commercial world, the laws of Congress and the decisions of courts,
is not denied. Being thus articles of commerce, can a State, in
the absence of legislation on the part of Congress, prohibit their
importation from abroad or from a sister State? or when imported
prohibit their sale by the importer? If the importation cannot
be prohibited without the consent of Congress, when does property
imported from abroad, or from a sister State, so become part of
the common mass of property within a State as to be subject to its
unimpeded control?
In Brown v. Maryland (supra) the act of the state legislature
drawn in question was held invalid as repugnant to the prohibi-
tion of the Constitution upon the States to lay any impost or
duty upon imports or exports, and to the clause granting the
power to regulate commerce; and it was laid down by the great
magistrate who presided over this court for more than a third of
a century, that the point of time when the prohibition ceases
and the power of the State to tax commences, is not the instant
when the article enters the country, but when the importer has
so acted upon it that it has become incorporated and mixed up
with the mass of property in the country, which happens when
the original package is no longer such in his hands; that the dis-
tinction is obvious between a tax which intercepts the import as an
import on its way to become incorporated with the general mass
of property, and a tax which finds the article already incorporated
with that mass by the act of the importer; that as to the power
to regulate commerce, none of the evils which proceeded from
the feebleness of the federal government contributed more to the
great revolution which introduced the present system, than the
deep and general conviction that commerce ought to be regulated
by Congress; that the grant should be as extensive as the mischief,
and should comprehend all foreign commerce and all commerce
among the States; that that power was complete in itself, acknowl-
edged no limitations other than those prescribed by the Consti-
tution, was co-extensive with the subject on which it acts and not
to be stopped at the external boundary of a State, but must be
capable of entering its interior; that the right to sell any article
imported was an inseparable incident to the right to import it,
and that the principles expounded in the case applied equally
to importations from a sister State. Manifestly this must be so,
for the same public policy applied to commerce among the States
as to foreign commerce, and not a reason could be assigned for
confiding the power over the one which did not conduce to estab-
lish the propriety of confiding the power over the other. Story,
LBISY v. HARDIN. 273
Constitution, 1066. And although the precise question before
us was not ruled in Gibbons v. Ogden and Brown v. Maryland,
yet we think it was virtually involved and answered, and that
this is demonstrated, among other cases, in Bowman v. Chicago &
Northwestern Bailway Co., 125 U. S., 465. In the latter case,
section 1553 of the. Code of the State of Iowa as amended by c.
143 of the acts of the twentieth General Assembly in 1886, forbid-
ding common carriers to bring intoxicating liquors into the State
from any other State or Territory, without first being furnished
with a certificate as prescribed, was declared invalid, because essen-
tially a regulation of commerce among the States, and not sanc-
tioned by the authority, express or implied, of Congress. The
opinion of the court, delivered by Mr. Justice Matthews, the con-
curring opinion of Mr. Justice Field, and the dissenting opinion
by Mr. Justice Harlan, on behalf of Mr. Chief Justice Waite, Mr.
Justice Gray, and himself, discussed the question involved in all
its phases; and while the determination of whether the right of
transportation of an article of commerce from one State to an-
other includes by necessary implication the right of the con-
signee to sell it in unbroken packages at the place where the
transportation terminates was in terms reserved, yet the argu-
ment of the majority conducts irresistibly to that conclusion, and
we think we cannot do better than repeat the grounds upon which
the decision was made to rest. It is there shown that the trans-
portation of freight or of the subjects of commerce, for the pur-
pose of exchange or sale, is beyond all question a constituent of
commerce itself; that this was the prominent idea in the minds
of the framers of the Constitution, when to Congress was com-
mitted the power to regulate commerce among the several States;
that the power to prevent embarrassing restrictions by any State
was the end desired; that the power was given by the same words
and in the same clause by which was conferred power to regulate
commerce with foreign nations; and that it would be absurd to
suppose that the transmission of the subjects of trade from the
State of the buyer, or from the place of production to the market,
was not contemplated, for without that there could be no con-
summated trade, either with foreign nations or among the States.
It is explained that where State laws alleged to be regulations of
commerce among the States, have been sustained, they were laws
which related to bridges or dams across streams, wholly within
the State, or police or health laws, or to subjects of a kindred
nature, not strictly of commercial regulation. But the trans-
portation of passengers or of merchandise from one State to an-
18
274 CASES ON CONSTITUTIONAL LAW.
other is in its nature national, admitting of but one regulating
power; and it was to guard against the possibility of commercial
embarrassments which would result if one State could directly or
indirectly tax persons or property passing through it, or prohibit
particular property from entrance into the State, that the power
of regulating commerce among the States was conferred upon the
federal government. .
"If in the present case," said Mr. Justice Matthews, "the law
of Iowa operated upon all merchandise sought to be brought from
another State into its limits, there could be no doubt that it
would be a regulation of commerce among the States," and he
concludes that this must be so, though it applied only to one class
of articles of a particular kind. The legislation of Congress on
the subject of interstate commerce by means of railroads, designed
to remove trammels upon transportation between different States,
and upon the subject of the transportation of passengers and
merchandise (Revised Statutes, sections 4252 to 4289, inclusive),
including the transportation of nitroglycerine and other similar
explosive substances, with the proviso that, as to them, "any
State, territory, district, city or town within the United States"
should not be prevented by the language used "from regulating or
from prohibiting the traffic in or transportation of those sub-
stances between persons or places lying or being within their re-
spective territorial limits, or from prohibiting the introduction
thereof into such limits for sale, use or consumption therein," is
referred to as indicative of the intention of Congress that the
transportation of commodities between the States shall be free,
except where it is positively restricted by Congress itself, or by
States in particular cases by the express permission of Congress.
It is said that the law in question was not an inspection law, the
object of which "is to improve the quality of articles produced by
the labor of a country, to fit them for exportation; or, it may be,
for domestic use;" Gibbons v. Ogden, 9 Wheat., 1, 203; Turner v.
Maryland, 107 U. S., 38, 55; nor could it be regarded as a regula-
tion of quarantine or a sanitary provision for the purpose of pro-
tecting the physical health of the community;' nor a law to pre-
vent the introduction into the State of diseases, contagious, in-
fectious, or otherwise. Articles in such a condition as tend to
spread disease are not merchantable, are not legitimate subjects
of trade and commerce, and the self-protecting power of each
State, therefore, may be rightfully exerted against their introduc-
tion, and such exercise of power cannot be considered a regulation
of commerce, prohibited by the Constitution; and the observa-
LEISY v. HARDIN. 275
tions of Mr. Justice Catron, in The License Cases, 5 How., 504,
599, are quoted to the effect that what does not belong to com-
merce is within the jurisdiction of the police power of the State,
but that which does belong to commerce is within the jurisdiction
of the United States; that to extend the police power over subjects
of commerce would be to make commerce subordinate to that
power, and would enable the State to bring within the police
power "any article of consumption that a State might wish to ex-
clude, whether it belonged to that which was drunk or to food
and clothing; and with nearly equal claims to propriety, as malt
liquors and the products of fruits other than grapes stand on no
higher ground than the light wines of this and other countries,
excluded in effect by the law as it now stands. And it would be
only another step to regulate real or supposed extravagance in food
and clothing." And Mr. Justice Matthews thus proceeds, p. 493:
"For the purpose of protecting its people against the evils of in-
temperance, it has the right to prohibit the manufacture within
its limits of intoxicating liquors; it may also prohibit all domestic
commerce in them between its own inhabitants, whether the arti-
cles are introduced from other States or from foreign countries;
it may punish those who sell them in violation of its laws; it
may adopt any measures tending, even indirectly and remotely,
to make the policy effective until it passes the line of power
delegated to Congress under the Constitution. It cannot, without
the consent of Congress, express or implied, regulate commerce
between its people and those of the other States of the Union in
order to effect its end, however desirable such a regulation might
be. ... Can it be supposed that by omitting any express
declaration on the subject, Congress has intended to submit to
the several States the decision of the question in each locality of
what shall and what shall not be articles of traffic in the inter-
state commerce of the country? If so, it has left to each State,
according to its own caprice and arbitrary will, to discriminate for
or against every article grown, produced, manufactured or sold
in any State and sought to be introduced as an article of com-
merce into any other. If the State of Iowa may prohibit the im-
portation of intoxicating liquors from all other States, it may also
include tobacco, or any other article, the use or abuse of which it
may deem deleterious. It may not choose, even, to be governed
by considerations growing out of the health, comfort or peace of
the community. Its policy may be directed to other ends. It
may choose to establish a system directed to the promotion and
benefit of its own agriculture, manufactures or arts of any de-
276
CASES ON CONSTITUTIONAL LAW.
scription, and prevent the introduction and sale within its limits
of any or of all articles that it may select as coming into competi-
tion with those which it seeks to protect. The police power of
the State would extend to such cases, as well as to those in which
it was sought to legislate in behalf of the health, peace and morals
of the people. In view of the commercial anarchy and confusion
that would result from the diverse exertions of power by the sev-
eral States of the Union, it cannot be supposed that the Constitu-
tion or Congress have intended to limit the freedom of commercial
intercourse among the people of the several States." . . .
[Here follow extracts from the opinion of CHIEF JUSTICE TAXEY
in The License Cases, 5 Howard, 504.]
But conceding the weight properly to be ascribed to the judicial
utterances of this eminent jurist, we are constrained to say that
the distinction between subjects in respect of which there can be
of necessity only one system or plan of regulation for the whole
country, and subjects local in their nature, and, so far as relating
to commerce, mere aids rather than regulations, does not appear
to us to have been sufficiently recognized by him in arriving at
the conclusions announced. That distinction has been settled by
repeated decisions of this court, and can no longer be regarded as
open to re-examination. After all, it amounts to no more than
drawing the line between the exercise of power over commerce
with foreign nations, and among the States, and the exercise of
power over purely local commerce and local concerns.
The authority of Peirce v. New Hampshire, in so far as it rests
on the view that the law of Xew Hampshire was valid because
Congress has made no regulation on the subject, must be regarded
as having been distinctly overthrown by the numerous cases here-
inafter referred to.
The doctrine now firmly established is, as stated by Mr. Justice
Field, in Bowman v. Chicago, &c. Railway Co., 125 U. S., 507,
"that where the subject upon which Congress can act under its
commercial power is local in its nature or sphere of operation, such
as harbor pilotage, the improvement of harbors, the establishment
of beacons and buoys to guide vessels in and out of port, the con-
struction of bridges over navigable rivers; erection of wharves,
piers, and docks, and the like, which can be properly regulated
only by special provisions adapted to their localities, the State
can act until Congress interferes and supersedes its authority;
but where the subject is national in its character, and admits and
requires uniformity of regulation, affecting alike all the States,
LEISY v. HARDIN. 277
such as transportation between the States, including the importa- 4
tion of goods from one State into another, Congress can alone act
upon it and provide the needed regulations. The absence of any
law of Congress on the subject is equivalent to its declaration
that commerce in that matter shall be free. Thus the absence of
regulations as to interstate commerce with reference to any par-
ticular subject is taken as a declaration that the importation of
that article into the States shall be unrestricted. It is only after
the importation is completed, and the property imported has
mingled with and become a part of the general property of the
State, that its regulations can act upon it, except so far as may be
necessary to insure safety in the disposition of the import until
thus mingled."
The conclusion follows that, as the grant of the power to regu-
late commerce among the States, so far as one system is required,
is exclusive, the States cannot exercise that power without the
assent of Congress, and, in the absence of legislation, it is left for
the courts to determine when State action does or does not amount
to such exercise, or, in other words, what is or is not a regulation
of such commerce. When that is determined, controversy is at
an end. Illustrations exemplifying the general rule are numer-
ous. Thus we have held the following to be regulations of inter-
state commerce: A tax upon freight transported from State to
State. Case of the State Freight Tax, 15 Wall., 232; a statute
imposing a burdensome condition on ship-masters as a prerequi-
site to the landing of passengers, Henderson v. Mayor of New
York, 92 U. S., 259; a statute prohibiting the driving or convey-
ing of any Texas, Mexican or Indian cattle, whether sound or dis-
eased, into the State between the first day of March and the first
day of November in each year, Eailroad Co. v. Husen, 95 U. S.,
465; a statute requiring every auctioneer to collect and pay into
the state treasury a tax on his sales, when applied to imported
goods in the original packages by him sold for the importer, Cook
v. Pennsylvania, 97 U. S., 566; a statute intended to regulate or
tax, or to impose any other restrictions upon, the transmission of
persons or property, or telegraphic messages, from one State to
another, Wabash, St. Louis &c. Railway v. Illinois, 118 U. S., 557;
a statute levying a tax upon non-resident drummers offering for
sale or selling goods, wares or merchandise by sample, manufac-
tured or belonging to citizens of other States, Robbins v. Shelby
Taxing District, 120 U. S., 489.
[Here follow similar rules derived from decisions in County of
Mobile v. Kimball, 102 U. S., 691; Escanaba Co. v. Chicago, 107
CASES ON CONSTITUTIONAL LAW.
IT. S., 678; Transportation Co. v. Parkersburg, 107 U. S., 691;
Brown v. Houston, 114 U. S., 622; Morgan Steamship Co. v.
Louisiana Board of Health, 118 U. S., 455; Smith v. Alabama,
124 U. S., 465; Nashville &c. Eailway Co. v. Alabama, 128 U. S.,
96; Kimmish v. Ball, 129 U. S., 217; Welton v. The State of
Missouri, 91 U. S., 275; Walling v. Michigan, 116 U. S., 446;
Patterson v. Kentucky, 97 U. S., 501; Webber v. Virginia, 103
U. S., 344; Mugler v. Kansas, 123 U. S., 623; Bartemeyer v.
Iowa, 18 Wall., 129; Beer Company v. Massachusetts, 97 U. S.,
25; Foster v. Kansas, 112 U. S., 201; Kidd v. Pearson, 128 U. S.,
1; and Eilenbecker v. District Court of Plymouth County, 134
F. S., 31.]
These decisions rest upon the undoubted right of the States of
the Union to control their purely internal affairs, in doing which
they exercise powers not surrendered to the national government;
but whenever the law of the State amounts essentially to a regu-
lation of commerce with foreign nations or among the States, as
it does when it inhibits, directly or indirectly, the receipt of an
imported commodity or its disposition before it has ceased to be-
come an article of trade between one State and another, or an-
other country and this, it comes in conflict with a power which, in
this particular, has been exclusively vested in the general gov-
ernment, and is therefore void.
In Mugler v. Kansas, supra, the court said (p. 662) that it
could not "shut out of view the fact, within the knowledge of all,
that the public health, the public morals and the public safety
may be endangered by the general use of intoxicating drinks; nor
the fact, established by statistics accessible to every one, that the
idleness, disorder, pauperism and crime existing in the country
are, in some degree at least, traceable to this evil." And that "if
in the judgment of the legislature [of a State] the manufacture of
intoxicating liquors for the maker's own use, as a beverage, would
tend to cripple, if it did not defeat, the effort to guard the com-
munity against the evils attending the excessive use of such
liquors, it is not for the courts, upon their views as to what is
best and safest for the community, to disregard the legislative
determination of that question. . . . Nor can it be said that
government interferes with or impairs any one's constitutional
rights of liberty or of property, when it determines that the man-
ufacture and sale of intoxicating drinks, for general or individual
use, as a beverage, are, or may become, hurtful to society, and
constitute, therefore, a business in which no one may lawfully
engage." Undoubtedly, it is for the legislative branch of the
LEISY v. HARDIN. 279
state governments to determine whether the manufacture of par-
ticular articles of traffic, or the sale of such articles, will injuri-
ously affect the public, and it is not for Congress to determine
what measures a State may properly adopt as appropriate or need-
ful for the protection of the public morals, the public health, or
the public safety; but notwithstanding it is not vested with super-
visory power over matters of local administration, the responsi-
bility is upon Congress, so far as the regulation of interstate com-
merce is concerned, to remove the restriction upon the State in
dealing with imported articles of trade within its limits, which
have not been mingled with the common mass of property therein,
if in its judgment the end to be secured justifies and requires such
action.
Prior to 1888 the statutes of Iowa permitted the sale of foreign
liquors imported under the laws of the United States, provided
the sale was by the importer in the original casks or packages,
and in quantities not less than those in which they were required
to be imported; and the provisions of the statute to this effect
were declared by the Supreme Court of Iowa, in Pearson v. Inter-
national Distillery, 72 Iowa, 348, 354, to be "intended to conform
the statute to the doctrine of the United States Supreme Court,
announced in Brown v. Maryland, 12 Wheat., 419, and License
Cases, 5 How., 504, so that the statute should not conflict with
the laws and authority of the United States." But that provision
of the statute was repealed in 1888, and the law so far amended
that we understand it now to provide that, whether imported or
not, wine cannot be sold in Iowa except for sacramental purposes,
nor alcohol, except for specified chemical purposes, nor intoxicat-
ing liquors, including ale and beer, except for pharmaceutical and
medicinal purposes, and not at all except by citizens of the State
of Iowa, who are registered pharmacists, and have permits obtained
as prescribed by the statute, a permit being also grantable to one
discreet person in any township where a pharmacist does not ob-
tain it.
The plaintiffs in error are citizens of Illinois, are not pharma-
cists, and have no permit, but import into Iowa beer, which they
sell in original packages, as described. Under our decision in
Bowman v. Chicago &c. Railway Co., supra, they had the right to
import this beer into that State, and in the view which we have
expressed they had the right to sell it, by which act alone it
would become mingled in the common mass of property within
the State. Up to that point of time, we hold that in the absence
of congressional permission to do so, the State had no power to
280 CASES ON CONSTITUTIONAL LAW.
interfere by seizure, or any other action, in prohibition- of importa-
tion and sale by the foreign or non-resident importer. Whatever
our individual views may be as to the deleterious or dangerous
qualities of particular articles, we cannot hold that any articles
which Congress recognizes as subjects of interstate commerce are
not such or that whatever are thus recognized can be controlled
by state laws amounting to regulations, while they retain that
character; although, at the same time, if directly dangerous in
themselves, the State may take appropriate measures to guard
against injury before it obtains complete jurisdiction over them.
To concede to a State the power to exclude, directly or indirectly,
articles so situated, without congressional permission, is to con-
cede to a majority of the people of a State, represented in the
state legislature, the power to regulate commercial intercourse be-
tween the States, by determining what shall be its subjects, when
that power was distinctly granted to be exercised by the people
of the United States, represented in Congress, and its possession
by the latter was considered essential to that more perfect union
which the Constitution was adopted to create. Undoubtedly, there
is difficulty in drawing the line between the municipal powers of
the one government and the commercial powers of the other, but
when that line is determined, in the particular instance, accom-
modation to it, without serious inconvenience, may readily be
found, to use the language of Mr. Justice Johnson, in Gibbons v.
Ogden, 9 Wheat., 1, 238, in "a frank and candid co-operation for
the general good."
The legislation in question is to the extent indicated repugnant
to the third clause of section 8 of Art. 1 of the Constitution of the
United States, and therefore the judgment of the Supreme Court
of Iowa is
Reversed and the cause remanded for further proceedings not
inconsistent with this opinion.
MR. JUSTICE GRAY, with whom concurred MR. JUSTICE HAR-
LAN and MR. JUSTICE BREWER, dissenting. . . .
NOTE. The application of this case was restricted and its doc-
trine greatly modified by the decision of the court in Plumley
v. Massachusetts, 155 U. S., 461 (1894).
MINNESOTA v. BARBER. 281
MINNESOTA v. BARBER.
136 U. S., 313. Decided 1890.
[The facts are sufficiently stated in the opinion of the court.]
MR. JUSTICE HAELAN delivered the opinion of the court.
Henry E. Barber, the appellee, was convicted before a justice
of the peace in Ramsey County, Minnesota, of the offense of hav-
ing wrongfully and unlawfully offered and exposed for sale, and
of having sold for human food, one hundred pounds of fresh un-
cured beef, part of an animal slaughtered in the State of Illinois,
but which had not been inspected in Minnesota, and "certified"
before slaughter by an inspector appointed under the laws of the
latter State. Having been committed to the common jail of the
county pursuant to a judgment of imprisonment for a term of
thirty days, he sued out a writ of habeas corpus from the Circuit
Court of the United States for the District of Minnesota, and
prayed to be discharged from such imprisonment, upon the ground
that the statute of that State, approved April 16, 1889, and under
which he was prosecuted, was repugnant to the provision of the
Constitution giving Congress power to regulate commerce among
the several States, as well as to the provision declaring that the
citizens of each State shall be entitled to all privileges and im-
munities of citizens in the several States. Art. 1, Sec. 8. Art. 4,
Sec. 2. The court below, speaking by Judge Nelson, held the
statute to be in violation of both of these provisions, and dis-
charged the prisoner from custody. In re Barber, 39 Fed. Rep.,
641. A similar conclusion in reference to the same statute had
been previously reached by Judge Blodgett, holding the Circuit
Court of the United States for the Northern District of Illinois.
Swift v. Sutphin, 39 Fed. Rep., 630.
From the judgment discharging Barber the State has prosecuted
the present appeal. Rev. Stat., 764; 23 Stat., 437, c. 353.
Attorneys representing persons interested in maintaining the
validity of a statute of Indiana, alleged to be similar to that of
Minnesota, were allowed to participate in the argument in this
court, and to file briefs.
The statute of Minnesota upon the validity of which the de-
cision of the case depends is as follows: Laws of 1889, c. 8, p.
51. ... [Here follows the full text of the act, which is en-
titled "An act for the protection of the public health by providing
for inspection, before slaughter, of cattle, sheep and swine de-
282 CASES ON CONSTITUTIONAL LAW.
signed for slaughter for human food." It required that animals
thus described should be inspected by State officers within twenty-
four hours before they are slaughtered. If found fit for slaughter,
certificates to that effect should be given; if not found fit, they
should be removed and destroyed.]
The presumption that this statute was enacted, in good faith,
for the purpose expressed in the title, namely, to protect the
health of the people of Minnesota, cannot control the final de-
termination of the question whether it is not repugnant to the
Constitution of the United States. There may be no purpose
upon the part of a legislature to violate the provisions of that in-
strument, and yet a statute enacted by it, under the forms of law,
may, by its necessary operation, be destructive of rights granted
or secured by the Constitution. In such cases, the courts must
sustain the supreme law of the land by declaring the statute un-
constitutional and void. This principle of constitutional inter-
pretation has been often announced by this court. In Henderson
&c. v. New York &c., 92 U. S., 259, 268, where a statute of New
York imposing burdensome and almost impossible conditions on
the landing of passengers from vessels employed in foreign com-
merce, was held to be unconstitutional and void as a regulation of
such commerce, the court said that "in whatever language a
statute may be framed, its purpose must be determined by its nat-
ural and reasonable effect." In People v. Compagnie General e
Transatlantique, 107 U. S., 59, 63, where the question was as to
the validity, of a statute of the same State, which was attempted
to be supported as an inspection law authorized by section 10 of
article 1 of the Constitution, and was so designated in its title, it
was said: "A State cannot make a law designed to raise money to
support paupers, to detect or prevent crimes, to guard against dis-
ease and to cure the sick, an inspection law, within the constitu-
tional meaning of that word, by calling it so in the title." So,
in Soon Hing v. Crowley, 113 U. S., 703, 710: "The rule is
general, with reference to the enactments of all legislative bodies,
that the courts cannot inquire into the motives of the legislators
in passing them, except as they may be disclosed on the face of
the acts, or inferrible from their operation, considered with refer-
ence to the condition of the country and existing legislation. The
motives of the legislators, considered as the purposes they had in
view, will always be presumed to be to accomplish that which
follows as the natural and reasonable effect of their enactments."
In Mugler v. Kansas, 123 U. S., 623, 661, the court, after observ-
ing that every possible presumption is to be indulged in favor of
MINNESOTA v. BARBER. 283
the validity of a statute, said that the judiciary must obey the
Constitution rather than the lawmaking department of the gov-
ernment, and must, upon its own responsibility, determine wheth-
er, in any particular case, the limits of the Constitution have been
passed. It was added: "If, therefore, a statute purporting to
have been enacted to protect the public health, the public morals
or the public safety, has no real or substantial relation to those
objects, or is a palpable invasion of rights secured by the funda-
mental law, it is the duty of the courts to so adjudge, and thereby
give effect to the Constitution." Upon the authority of those
cases, and others that could be cited, it is our duty to inquire, in
respect to the statute before us, not only whether there is a real
or substantial relation between its avowed objects and the means
devised for attaining those objects, but whether by its necessary
or natural operation it impairs or destroys rights secured by the
Constitution of the United States.
Underlying the entire argument in behalf of the State is the
proposition that it is impossible to tell, by an inspection of fresh
beef, veal, mutton, lamb, or pork, designed for human food,
whether or not it came from animals that were diseased when
slaughtered; that inspection on the hoof, within a very short time
before animals are slaughtered, is the only mode by which their
condition can be ascertained with certainty. And it is insisted,
with great confidence, that of this fact the court must take judicial
notice. If a fact, alleged to exist, and upon which the rights of
parties denend is within common experience and knowledge, it
is one of which the courts will take judicial notice. Brown v.
Piper, 91 U. S., 37, 42; Phillips v. Detroit, 111 U. S., 604, 606.
But we cannot assent to the suggestion that the fact alleged in
this case to exist is of that class. It may be the opinion of some
that the presence of disease in animals at the time of their being
slaughtered, cannot be determined by inspection of the meat
taken from them; but we are not aware that such is the view
universally, or even generally, entertained. But if, as alleged, the
inspection of fresh beef, veal, mutton, lamb, or pork will not
necessarily show whether the animal from which it was taken
was diseased when slaughtered, it would not follow that a statute
like the one before us is within the constitutional power of the
State to enact. On the contrary, the enactment of a similar stat-
ute by each one of the States composing the Union would result
in the destruction of commerce among the several States, so far
as such commerce is involved in the transportation from one part
of the country to another of animal meats designed for human
284 CASES ON CONSTITUTIONAL LAW.
food, and entirely free from disease. A careful examination of the
Minnesota act will place this constrution of it beyond question.
The first section prohibits the sale of any fresh beef, veal, mut-
ton, lamb, or pork for human food, except as provided in that
act. The second and third sections provide that all cattle, sheep,
and swine to be slaughtered for huma'n food within the respective
jurisdictions of the inspectors, shall be inspected by the proper
local inspector appointed in Minnesota, within twenty-four hours
before the animals are slaughtered, and that a certificate shall be
made by such inspector, showing (if such be the fact) that the
animals, when slaughtered, were found healthy and in suitable
condition to be slaughtered for human food. The fourth section
makes it a misdemeanor, punishable by fine or imprisonment, for
any one to sell, expose, or offer for sale, for human food, in the
State, any fresh beef, veal, mutton, lamb, or pork, not taken from
an animal inspected and "certified before slaughter, by the proper
local inspector" appointed under that act. As the inspection
must take place within twenty-four hours immediately before the
slaughtering, the act, by its necessary operation, excludes from
the Minnesota market, practically, all fresh beef, veal, mutton,
lamb, or pork in whatever form, and although entirely sound,
healthy, and fit for human food taken from animals slaughtered
in other States; and directly tends to restrict the slaughtering of
animals, whose meat is to be sold in Minnesota for human food, to
those engaged in such business in that State. This must be so,
because the time, expense, and labor of sending animals from
points outside of Minnesota to points in that State to be there in-
spected, and bringing them back, after inspection, to be slaught-
ered at the place from which they were sent the slaughtering to
take place within twenty-four hours after inspection, else the cer-
tificate of inspection becomes of no value will be so great as to
amount to an absolute prohibition upon sales, in Minnesota, of
meats from animals not slaughtered within its limits. When to
this is added the fact that the statute, by its necessary operation,
prohibits the sale, in the State, of fresh beef, veal, mutton, lamb,
or pork, from animals that may have been inspected carefully and
thoroughly in the State where they were slaughtered, and before
they were slaughtered, no doubt can remain as to its effect upon
commerce among the several States. It will not do to say cer-
tainly no judicial tribunal can, with propriety, assume that the
people of Minnesota may not, with due regard to their health,
rely upon inspections in other States of animals there slaughtered
for purposes of human food. If the object of the statute had
MINNESOTA v. BARBER. 285
been to deny altogether to the citizens of other States the privi-
lege of selling, within the limits of Minnesota, for human food,
any fresh beef, veal, mutton, lamb, or pork, from animals slaugh-
tered outside of that State, and to compel the people of Minnesota,
wishing to buy such meats, either to purchase those taken from
animals inspected and slaughtered in the State, or to incur the
cost of purchasing them, when desired for their own domestic use,
at points beyond the State, that object is attained by the act in
question. Our duty to maintain the Constitution will not permit
us to shut our eyes to these obvious and necessary results of the
Minnesota statute. If this legislation does not make such dis-
crimination against the products and business of other States in
favor of the products and business of Minnesota as interferes with
and burdens commerce among the several "States, it would be dif-
ficult to enact legislation that would have that result. . . .
The latest case in this court upon the subject of interstate com-
merce, as affected by local enactments discriminating against the
products and citizens of other States, is Walling v. Michigan. 116
U. S., 446, 455. We there held to be unconstitutional a statute of
Michigan, imposing a license tax upon persons, not residing or
having their principal place of business in that State, but whose
business was that of selling or soliciting the sale of intoxicating
liquors to be shipped into the State from places without, a similar
tax not being imposed in respect to the sale and soliciting for sale
of liquors manufactured in Michigan. Mr. Justice Bradley, deliv-
ering the opinion of the court, said: "A discriminating tax im-
posed by a State operating to the disadvantage of the products
of other States when introduced into, the first-mentioned State,
is, in effect, a regulation in restraint of commerce among the
States, and as such is a usurpation of the power conferred by the
Constitution upon the Congress of the United States."
It is, however, contended, in behalf of the State, that there is,
in fa.ct, no interference, by this statute, with the bringing of cattle,
sheep, and swine into Minnesota from other States, nor any dis-
crimination against the products of business of other States, for
the reason such is the argument that the statute requiring an
inspection of animals on the hoof, as a condition of the privilege
of selling, or offering for sale, in the State, the meats taken from
them, is applicable alike to all owners of such animals, whether
citizens of Minnesota or citizens of other States. To this we an-
swer, that a statute may, upon its face, apply equally to the people
of all the States, and yet be a regulation of interstate commerce
which a State may not establish. A burden imposed by a State
286 CASES ON CONSTITUTIONAL LAW.
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 enacting such statute. Bobbins
v. Shelby Taxing District, 120 U. S., 489, 497; Case of the State
Freight Tax, 15 Wall., 232. The people of Minnesota have as
much right to protection against the enactments of that State, in-
terfering with the freedom of commerce among the States, as have
the people of other States. Although this statute is not avowedly,
or in terms, directed against the bringing into Minnesota of the
products of other States, its necessary effect is to burden or ob-
struct commerce with other States, as involved in the transporta-
tion into that State, for purposes of sale there, of all fresh beef,
veal, mutton, lamb, or pork, however free from disease may have
been the animals from which it was taken.
The learned counsel for the State relies with confidence upon
Patterson v. Kentucky, 97 U. S., 501, as supporting the principles
for which he contends. . . . [This decision upheld as a
proper exercise of the police power a Kentucky statute forbidding
the sale in that State of illuminating oils that would ignite below a
certain temperature.] Now, the counsel of the State asks: If
the State may, by the exercise of its police power, determine for
itself what test shall be made of the safety of illuminating oils,
and prohibit the sale of all oils not subjected to and sustaining
such test, although such oils are manufactured by a process pat-
ented under the Constitution and laws of the United States, why
may it not determine for itself what test shall be made of the
wholesomeness and safety of food and prohibit the sale of all such
food not submitted to and sustaining the test, although it may
chance that articles otherwise subject to the Constitution and laws
of the United States cannot sustain the test? The analogy, the
learned counsel observes, seems close. But it is only seemingly
close. There is no real analogy between that case and the one be-
fore us. The Kentucky statute prescribed no test of inspection
which, in view of the nature of the property, was either unusual or
unreasonable, or which by its necessary operation discriminated
against any particular oil because of the locality of its production.
If it had prescribed a mode of inspection to which citizens of other
States, having oils designed for illuminating purposes and which
they desired to sell in the Kentucky market, could not have rea-
sonably conformed, it would undoubtedly have been held to be an
unauthorized burden upon interstate commerce. Looking at the
nature of the property to which the Kentucky statute had refer-
ence, there was no difficulty in the way of the patentee of the
MINNESOTA v. BARBER. 287
particular oil there in question submitting to the required local
inspection.
But a law providing for the inspection of animals whose meats
are designed for human food cannot be regarded as a rightful ex-
ertion of the police powers of the State, if the inspection pre-
scribed is of such a character, or is burdened with such conditions,
as will prevent altogether the introduction into the State of sound
meats, the product of animals slaughtered in other States. It is
one thing for a State to exclude from its limits cattle, sheep, or
swine, actually diseased, or meats that, by reason of their con-
dition, or the condition of the animals from which they are taken,
are unfit for human food, and punish all sales of such animals or
of such meats within its limits. It is quite a different thing for a
State to declare, as does Minnesota by the necessary operation of
its statute, that fresh beef, veal, mutton, lamb, or pork articles
that are used in every part of this country to support human
life shall not be sold at all for human food within its limits,
unless the animal from which such meats are taken is inspected
in that State, or, as is practically said, unless the animal is slaugh-
tered in that State.
One other suggestion by the counsel for the State deserves to
be examined. It is, that so far as this statute is concerned, the
people of Minnesota can purchase in other States fresh beef, veal,
mutton, lamb, and pork, and bring such meats into Minnesota for
their own personal use. We do not perceive that this view
strengthens the case for the State, for it ignores the right which
people of other States have in commerce between those States and
the State of Minnesota. And it ignores the right of the people of
Minnesota to bring into that State, for purposes of sale, sound and
healthy meat, wherever such meat may have come into existence.
But there is a consideration arising out of the suggestion just
alluded to which militates somewhat against the theory that the
statute in question is a legitimate exertion of the police powers of
the State for the protection of the public health. If every hotel-
keeper, railroad or mining corporation, or contractor, in Minne-
sota, furnishing subsistence to large numbers of persons, and every
private family in that State, that is so disposed, can, without vio-
lating this statute, bring into the State from other States and use
for their own purposes, fresh beef, veal, mutton, lamb and pork,
taken from animals slaughtered outside Minnesota which may not
have been inspected at all, or not within twenty-four hours before
being slaughtered, what becomes of the argument, pressed with
so much earnestness, that the health of the people of that State
288 CASES ON CONSTITUTIONAL LAW.
requires that they be protected against the use of meats from
animals not inspected in Minnesota within the twenty-four
hours before being slaughtered? If the statute, while permitting
the sale of meats from animals slaughtered, inspected and "certi-
fied" in that State, had expressly forbidden the introduction from
other States, and their sale in Minnesota, of all fresh meats, of
every kind, without making any distinction between those that
were from animals inspected on the hoof and those that were not
so inspected, its unconstitutionality could not have been doubted.
And yet it is so framed that this precise result is attained as to
all sales in Minnesota, for human . food, of meats from animals
slaughtered in other States.
In the opinion of this court the statute in question, so far as its
provisions require, as a condition of sales in Minnesota of fresh
beef, veal, mutton, lamb or pork for human food, that the animals
from which such meats are taken shall have been inspected in
Minnesota before being slaughtered, is in violation of the Consti-
tution of the United States and void.
The judgment discharging the appellee from custody is affirmed,
NOTE. The decisions of the Supreme Court on the commerce
clause of the Constitution have differed widely from time to time,
and there is now a tendency to return to the principles laid down
by Chief Justice Marshall in Gibbons v. Ogden. On this point
Mr. Justice Bradley has said, "A great number and variety of
cases involving the commercial power of Congress have been
brought to the attention of this court during the past fifteen
years, which have frequently made it necessary to re-examine the
\vhole subject with care; and the result has sometimes been that
in order to give full and fair effect to the different clauses of
the Constitution the court has felt constrained to recur to the
fundamental principles stated and illustrated with so much clear-
ness and force by Chief Justice Marshall and other members of
the court in former times, and to modify to some degree certain
dicta and decisions that have occasionally been made in the inter-
vening period." Leloup v. Mobile, 127 U. S., 640, 648 (1888).
V. THE POLICE POWER.
MUNN v. ILLINOIS.
84 U. S.. 118. Decided 1876.
ERROR to the Supreme Court of the State of Illinois. . . .
[The facts are sufficiently stated in the opinion of the court.]
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The question to be determined in this case is whether the gen-
eral assembly of Illinois can, under the limitations upon the legis-
lative powers of the States imposed by the Constitution of the
United States, fix by law the maximum of charges for the storage
of grain in warehouses at Chicago and other places in the State
having not less than one hundred thousand inhabitants, "in which
grain is stored in bulk, and in which the grain of different owners
is mixed together, or in which grain is stored in such a manner
that the identity of different lots or parcels cannot be accurately
preserved."
It is claimed that such a law is repugnant
1. To that part of sect. 8, art. 1, of the Constitution of the
United States which confers upon Congress the power "to regulate
commerce with foreign nations and among the several States;"
2. To that part of sect. 9 of the same article, which provides
that "no preference shall be given by any regulation of commerce
or revenue to the ports of one State over those of another;" and
3. To that part of amendment 14 which ordains that no State
shall "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."
We will consider the last of these objections first.
Every statute is presumed to be constitutional. The courts
ought not to declare one to be unconstitutional, unless it is clearly
so. If there is doubt, the expressed will of the legislature should
be sustained.
19 289
290 CASES ON CONSTITUTIONAL LAW.
The Constitution contains no definition of the word "deprive,"
as used in the Fourteenth Amendment. To determine its signifi-
cation, therefore, it is necessary to ascertain the effect which
usage has given it, when employed in the same or a like con-
nection.
While this provision of the amendment is new in the Constitu-
tion of the United States, as a limitation upon the powers of the
States, it is old as a principle of civilized government. It is
found in Magna Charta, and, in substance if not in form, in
nearly or quite all the constitutions that have been from time to
time adopted by the several States of the Union. By the Fifth
Amendment, it was introduced into the Constitution of the United
States as a limitation upon the powers of the national government,
and by the Fourteenth, as a guarantee against any encroachments
upon an acknowledged right of citizenship by the legislatures of
the States.
When the people of the United Colonies separated from Great
Britain, they changed the form, but not the substance, of their
government. They retained for the purposes of government all
the powers of the British Parliament, and through their State
constitutions, or other forms of social compact, undertook to give
practical effect to such as they deemed necessary for the common
good and the security of life and property. All the powers which
they retained they committed to their respective States, unless in
express terms or by implication reserved to themselves. Subse-
quently, when it was found necessary to establish a national gov-
ernment for national purposes, a part of the powers of the States
and of the people of the States was granted to the United States
and the people of the United States. This grant operated as a
further limitation upon the powers of the States so that now the
governments of the States possess all the powers of the Parlia-
ment of England, except such as have been delegated to the
United States or reserved by the people. The reservations by
the people are shown in the prohibitions of the constitutions.
When one becomes a member of society, he necessarily parts
with some rights or privileges which, as an individual not affected
by his relations to others, he might retain. "A body politic," as
aptly defined in the preamble of the Constitution of Massachusetts,
"is a social compact by which the whole people covenants with
each citizen, each citizen with the whole people, that all shall
be governed by certain laws for the common good." This does
not confer power upon the whole people to control rights which
are purely and exclusively private (Thorpe v. R. & V. Railroad Co.,
MUNN v. ILLINOIS. 291
27 Vt., 143); but it does authorize the establishment of laws
requiring each citizen to so conduct himself, and so use his own
property, as not unnecessarily to injure another. This is the very
essence of government, and has found expression in the maxim,
sic utere tuo ut alienum non laedas. From this source come the
police powers, which, as was said by Mr. Chief Justice Taney in
the License Cases, 5 How., 583, "are nothing more or less than
the powers of government inherent in every sovereignty, . . .
that is to say, . . . the power to govern men and things."
Under these powers the government regulates the conduct of its
citizens one towards another, and the manner in which each shall
use his own property, when such regulation becomes necessary for
the public good. In their exercise it has been customary in Eng-
land from time immemorial, and in this country from its first
colonization, to regulate ferries, common carriers, hackmen,
bakers, millers, wharfingers, innkeepers, &c., and in so doing
to fix a maximum of charge to be made for services rendered, ac-
commodations furnished, and articles sold. To this day, statutes
are to be found in many of the States upon some or all these
subjects; and we think it has never yet been successfully con-
tended that such legislation came within any of the constitutional
prohibitions against interference with private property. With the
Fifth Amendment in force, Congress, in 1820, conferred power
upon the city of Washington "to regulate . . . the rates of
wharfage at private wharves, . . . the sweeping of chimneys,
and to fix the rates of fees therefor, . . . and the weight and
quality of bread," 3 Stat., 587, sec. 7; and, in 1848, "to make
all necessary regulations respecting hackney carriages and the
rates of fare of the same, and the rates of hauling by cirtmen,
wagoners, carmen, and draymen, and the rates of commission of
auctioneers," 9 id., 224, sect. 2.
From this it is apparent that, down to the time of the adop-
tion 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 par-
ticular: it simply prevents the States from doing that which will
operate as such a deprivation.
This brings us to inquire as to the principles upon which this
power of regulation rests, in order that we may determine what
is within and what without its operative effect. Looking, then,
to the common law, from whence came the right which the Con-
292 CASES ON CONSTITUTIONAL LAW.
stitution protects, we find that when private property is "affected
with a public interest, it ceases to be juris privati only." This
was said by Lord Chief Justice Hale more than two hundred years
ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78,
and has been accepted without objection as an essential element
in the law of property ever since. Property does become clothed
with a public interest when used in a manner to make it of public
consequence, and affect the community at large. When, therefore,
one devotes his property to a use in which the public has an
interest, he, in effect, grants to the public an interest in that
use, and must submit to be controlled by the public for the com-
mon good, to the extent of the interest he has thus created. He
may withdraw his grant by discontinuing the use; but, so long
as he maintains the use, he must submit to the control.
Thus, as to ferries, Lord Hale says, in his treatise De Jure
Maris, 1 Harg. Law Tracts, 6, the king has "a right of fran-
chise or privilege, that no man may set up a common ferry for all
passengers, without a prescription time out of mind or a charter
from the king. He may make a ferry for his own use or the use
of his family, but not for the common use of all the king's sub-
jects passing that way; because it doth in consequence tend to
a common charge, and is become a thing of public interest and
use, and every man for his passage pays a toll, which is a common
charge, and every ferry ought to be under a public regulation,
viz., that it give attendance at due times, keep a boat in due order
and take but reasonable toll; for if he fail in these he is finable."
So if one owns the soil and landing-places on both banks of a
stream, he cannot use them for the purposes of a public ferry, ex-
cept upon such terms and conditions as the body politic may
from time to time impose; and this because the common good
requires that all public ways shall be under the control of the
public authorities. This privilege or prerogative of the king, who
in this connection only represents and gives another name to the
body politic, is not primarily for his profit, but for the protection
of the people and the promotion of the general welfare. . . .
[Here follows another passage from Lord Hale regarding
wharves.]
This statement of the law by Lord Hale was cited with appro-
bation and acted upon by Lord Kenyon at the beginning of the
present century, in Bolt v. Stennett, 8 T. R., 606.
And the same has been held as to warehouses and warehouse-
men. In Aldnutt v. Inglis, 12 East, 527, decided in 1810, it
MUNN v. ILLINOIS. 293
appeared that the London Dock Company had built warehouses
in which wines were taken in store at such rates of charge as the
company and the owners might agree upon. Afterwards the
company obtained authority, under the general warehousing act,
to receive wines from importers before the duties upon the im-
portation were paid; and the question was, whether they could
charge arbitrary rates for such storage, or must be content with
a reasonable compensation. . . . [Here follow several pas-
sages from the opinions in this case, in which it was held that
the charges must be reasonable.]
In later times, the same principle came under consideration in
the Supreme Court of Alabama. That court was called upon, in
1841, to decide whether the power granted to the city of Mobile
to regulate the weight and price of bread was unconstitutional,
and it was contended that "it would interfere with the right of
the citizen to pursue his lawful trade or calling in the mode his
judgment might dictate;" but the court said, "there is no motive
. . . for this interference on the part of the legislature with
the lawful actions of individuals, or the mode in which private
property shall be enjoyed, unless such calling affects the public in-
terest, or private property is employed in a manner which directly
affects the body of the people. Upon this principle, in this State,
tavern-keepers are licensed; . . . and the County Court is re-
quired, at least once a year, to settle the rates of innkeepers. Upon
the same principle is founded the control which the legislature has
always exercised in the establishment and regulation of mills, fer-
ries, bridges, turnpike roads, and other kindred subjects." Mobile
v. Yuille, 3 Ala., N. s., 140.
From the same source comes the power to regulate the charges
of common carriers, which was done in England as long ago
as the third year of the reign of William and Mary, and con-
tinued until within a comparatively recent period. And in the first
statute we find the following suggestive preamble, to wit:
"And whereas divers wagoners and other carriers, by com-
bination amongst themselves, have raised the prices of carriage
of goods in many places to excessive rates, to the great injury
of the trade: Be it, therefore, enacted," &c. 3 W. & M., c. 12,
24; 3 Stat. at Large (Great Britain), 481.
Common carriers exercise a sort of public office, and have duties
to perform in which the public is interested. New Jersey Nav.
Co. v. Merchants' Bank, 6 How., 382. Their business is, there-
fore, "affected with a public interest," within the meaning of
the doctrine which Lord Hale has so forcibly stated.
294 CASES ON CONSTITUTIONAL LAW.
But we need not go further. Enough has already been said to
show that, when private property is devoted to a public use, it is
subject to public regulation. It remains only to ascertain whether
the warehouses of these plaintiffs in error, and the business which
is carried on there, come within the operation of this principle.
For this purpose we accept as true the statements of fact con-
tained in the elaborate brief of one of the counsel of the plaintiffs
in error. From these it appears that "the great producing region
of the West and North-west sends its grain by water and rail to
Chicago, where the greater part of it is shipped by vessel for
transportation to the seaboard by the Great Lakes, and some of it
is forwarded by railway to the Eastern ports. . . . Vessels,
to some extent, are loaded in the Chicago harbor, and sailed
through the St. Lawrence directly to Europe. . . . The quan-
tity [of grain] received in Chicago has made it the greatest grain
market in the world. This business has created a demand for
means by which the immense quantity of grain can be handled or
stored, and these have been found in grain warehouses, which are
commonly called elevators, because the grain is elevated from the
boat or car, by machinery operated by steam, into the bins pre-
pared for its reception, and elevated from the bins, by a like
process, into the vessel or car which is to carry it on. ... In
this way the largest traffic between the citizens of the country
north and west of Chicago and the citizens of the country lying
on the Atlantic coast north of Washington is in grain which
passes through the elevators of Chicago. In this way the trade
in grain is carried on by the inhabitants of seven or eight of the
great States of the West with four or five of the States lying on the
sea-shore, and forms the largest part of interstate commerce in
these States. The grain warehouses or elevators in Chicago are
immense structures, holding from 300,000 to 1,000,000 bushels
at one time, according to size. They are divided into bins of large
capacity and great strength. . . . They are located with the
river harbor on one side and the railway tracks on the other; and
the grain is run through them from car to vessel, or boat to car,
as may be demanded in the course of business. It has been found
impossible to preserve each owner's grain separate, and this has
given rise to a system of inspection and grading, by which the
grain of different owners is mixed, and receipts issued for the
number of bushels, which are negotiable, and redeemable in like
kind, upon demand. This mode of conducting the business was
inaugurated more than twenty years ago, and has grown to im-
mense proportions The railways have found it impracticable to
MUNN v. ILLINOIS. 295
own such elevators, and public policy forbids the transaction of
such business by the carrier; the ownership has, therefore, been
by private individuals, who have embarked their capital and de-
voted their industry to such business as a private pursuit."
In this connection it must also be borne in mind that, although
in 1874 there were in Chicago fourteen warehouses adapted to
this particular business, and owned by about thirty persons, nine
business firms controlled them, and that the prices charged and
received for storage were such "as have been from year to year
agreed upon and established by the different elevators or ware-
houses in the city of Chicago, and which rates have been annually
published in one or more newspapers printed in said city, in the
month of January in each year, as the established rates for the
year then next ensuing such publication." Thus it is apparent
that all the elevating facilities through which these vast produc-
tions "of seven or eight great States of the West" must pass on
the way "to four or five of the States on the sea-shore" may be
a "virtual" monopoly.
Under such circumstances it is difficult to see why, if the com-
mon carrier, or the miller, or the ferryman, or the innkeeper, or
the wharfinger, or the baker, or the cartman, or the hackney-
coachman, pursues a public employment and exercises "a sort of
public office," these plaintiffs in error do not. They stand, to use
again the language of their counsel, in the very "gateway of com-
merce," and take toll from all who pass. Their business most
certainly "tends to a common charge, and is become a thing of
public interest and use." Every bushel of grain for its passage
"pays a toll, which is a common charge," and therefore, according
to Lord Hale, every such warehouseman "ought to be under
public regulation, viz., that he . . . take but reasonable toll."
Certainly, if any business can be clothed "with a public interest
and cease to be juris privati only," this has been. It may not
be made so by the operation of the Constitution of Illinois or
this statute, but it is by the facts.
We also are not permitted to overlook the fact that, for some
reason, the people of Illinois, when they revised their Constitu-
tion in 1870, saw fit to make it the duty of the general assembly
to pass laws "for the protection of producers, shippers, and re-
ceivers of grain and produce," art. 13, sect. 7; and by sect. 5 of
the same article, to require all railroad companies receiving and
transporting grain in bulk or otherwise to deliver the same at any
elevator to which it might be consigned, that could be reached
by any track that was or could be used by such company, and that
296 CASES ON CONSTITUTIONAL LAW.
all railroad companies should permit connections to be made with
their tracks, so that any public warehouse, &c., might be reached
by the cars on their railroads. This indicates very clearly that
during the twenty years in which this peculiar business had been
assuming its present "immense proportions," something had oc-
curred which led the whole body of the people to suppose that
remedies such as are usually employed to prevent abuses by virtual
monopolies might not be inappropriate here. For our purposes
we must assume that, if a state of facts could exist that would
justify such legislation, it actually did exist when the statute
now under consideration was passed. For us the question is
one of power, not of expediency. If no state of circumstances
could exist to justify such a statute, then we may declare this
one void, because in excess of the legislative power of the State.
But if it could, we must presume it did. Of the propriety of
legislative interference within the scope of legislative power, the
legislature is the exclusive judge.
Neither is it a matter of any moment that no precedent can
be found for a statute precisely like this. It is conceded that the
business is one of recent origin, that its growth has been rapid,
and that it is already of great importance. And it must also be
conceded that it is a business in which the whole public has a
direct and positive interest. It presents, therefore, a case for the
application of a long-known and well-established principle in social
science, and this statute simply extends the law so as to meet
this new development of commercial progress. There is no at-
tempt to compel these owners to grant the public an interest in
their property, but to declare their obligations, if they use it
in this particular manner.
It matters not in this case that these plaintiffs in error had
built their warehouses and established their business before the
regulations complained of were adopted. What they did was from
the beginning subject to the power of the body politic to require
them to conform to such regulations as might be established by the
proper authorities for the common good. They entered upon
their business and provided themselves with the means to carry
it on subject to this condition. If they did not wish to submit
themselves to such interference, they should not have clothed the
public with an interest in their concerns. The same principle
applies to them that does to the proprietor of a hackney-carriage,
and as to him it has never been supposed that he was exempt
from regulating statutes or ordinances because he had purchased
MUNN v. ILLINOIS. 297
his horses and carriage and established his business before the
statute or the ordinance was adopted.
It is insisted, however, that the owner of property is entitled
to a reasonable compensation for its use, even though it be clothed]
with a public interest, and that what is reasonable is a judicial
and not a legislative question.
As has already been shown, the practice has been otherwise.
In countries where the common law prevails, it has been custom-
ary from time immemorial for the legislature to declare what shall
be a reasonable compensation under such circumstances, or, per-
haps more properly speaking, to fix a maximum beyond which any
charge made would be unreasonable. Undoubtedly, in mere pri-
vate contracts, relating ,Jo matters in which the public has no
interest, what is reasonable must be ascertained judicially. But
this is because the legislature has no control over such a contract.
So, too, in matters which do affect the public interest, and as to
which legislative control may be exercised, if there are no statu-
tory regulations upon the subject, the courts must determine what
is reasonable. The controlling fact is the power to regulate at all.
If that exists, the right to establish the maximum of charge, as
one of the means of regulation, is implied. In fact, the common-
law rule, which requires the charge to be reasonable, is itself
a regulation as to price. Without it the owner could make his
rates at will, and compel the public to yield to his terms, or forego
the use.
But a mere common-law regulation of trade or business may be
changed by statute. A person has no property, no vested interest,
in any rule of the common law. That is only one of the forms
of municipal law, and is no more sacred than any other. Eights
of property which have been created by the common law cannot
be taken away without due process; but the law itself, as a nil?
of conduct, may be changed at the will, or even at the whim
of the legislature, unless prevented by constitutional limitations.
Indeed, the great office of statutes is to remedy defects in the
common law as they are developed, and to adapt it to the changes
of time and circumstance. To limit the rate of charge for services
rendered in a public employment, or for the use of property in
which the public has an interest, is only changing a regulation
which existed before. It establishes no new principle in the law,
but only gives a new effect to an old one.
We know that this is a power which may be abused; but that is
no argument against its existence. For protection against abuses
CASES ON CONSTITUTIONAL LAW.
by legislatures the people must resort to the polls, not to the
courts.
After what has already been said, it is unnecessary to refer at
length to the effect of the other provision of the Fourteenth
Amendment which is relied upon, viz., that no State shall "deny
to any person within its jurisdiction the equal protection of the
laws." Certainly, it cannot be claimed that this prevents the
State from regulating the fares of hackmen or the charges of
draymen in Chicago, unless it does the same thing in every other
place within its jurisdiction. But, as has been seen, the power
to regulate the business of warehouses depends upon the same
principle as the power to regulate hackmen and draymen, and
what cannot be done in the one case in this particular cannot be
done in the other.
We come now to consider the effect upon this statute of the
power of Congress to regulate commerce.
It was very properly said in the case of the State Tax on Kail-
way Gross Receipts, 15 Wall., 293, that "it is not everything that
affects commerce that amounts to a regulation of it, within the
meaning of the Constitution." The warehouses of these plaintiffs
in error are situated and their business carried on exclusively
within the limits of the State of Illinois. They are used as instru-
ments by those engaged in State as well as those engaged in inter-
state commerce, but they are no more necessarily a part of com-
merce itself than the dray or the cart by which, but for them,
grain would be transferred from one railroad station to another.
Incidentally they may become connected with interstate com-
merce, but not necessarily so. Their regulation is a thing of
domestic concern, and, certainly, until Congress acts in reference
to their interstate relations, the State may exercise all the powers
of government over them, even though in so doing it may indi-
rectly operate upon commerce outside its immediate jurisdiction.
We do not say that a case may not arise in which it will be found
that a State, under the form of regulating its own affairs, has
encroached upon the exclusive domain of Congress, in respect to
interstate commerce, but we do say that, upon the facts as they
are represented to us in this record, that has not been done.
The remaining objection, to wit, that the statute in its present
form is repugnant to sect. 9, art. 1, of the Constitution of the
United States, because it gives preference to the ports of one
State over those of another, may be disposed of by the single
remark that this provision operates only as a limitation of the
ESCANABA COMPANY v. CHICAGO. 299
powers of Congress, and in no respect affects the States in the
regulation of their domestic affairs.
We conclude, therefore, that the statute in question is not re-
pugnant to the Constitution of the United States, and that there
is no error in the judgment. In passing upon this case we have
not been unmindful of the vast importance of the questions in-
volved. This and cases of a kindred character were argued before
us more than*a year ago by most eminent counsel, and in a manner
worthy of their well-earned reputations. We have kept the
cases long under advisement, in order that their decision might
be the result of our mature deliberations.
Judgment affirmed.
[MR. JUSTICE FIELD rendered a dissenting opinion, in which
ME. JUSTICE STRONG concurred.]
ESCANABA COMPANY v. CHICAGO,
107 U. S., 678. Decided 1882.
Appeal from the Circuit Court of the United States for the
Northern District of Illinois.
The case is fully stated in the opinion of the court. . . .
MR. JUSTICE FIELD delivered the opinion of the court.
The Escanaba and Lake Michigan Transportation Company, a
corporation created under the laws of Michigan, is the owner of
three steam-vessels engaged in the carrying trade between ports
and places in different states on Lake Michigan and the navigable
waters connecting with it. The vessels are enrolled and licensed
for the coasting trade, and are principally employed in carrying
iron ore from the port of Escanaba, in Michigan, to the docks,
of the Union Iron and Steel Company on the south fork of the
south branch of the Chicago Elver in the city of Chicago. In
their course up the river and its south branch and fork to the
docks they are required to pass through draws of several bridges
constructed over the stream by the city of Chicago; and it is of
obstructions caused by the closing of the draws, under an ordi-
nance of the city, for a designated hour of the morning and
evening during week-days, and by a limitation of the time to ten
minutes, during which a draw may be left open for the passage of
a vessel, and by some of the piers in the south branch and fork,
and the bridges resting on them, that the corporation complains,
and to enjoin the city from closing the draws far the morning:
300 CASES ON CONSTITUTIONAL LAW.
and evening hours designated, and enforcing the ten minutes'
limitation, and to compel the removal of the objectionable piers
and bridges, the present bill is filed.
The river and its branches are entirely within the State of Illi-
nois, and all of it, and nearly all of both branches that is naviga-
ble, are within the limits of the city of Chicago. The river, from
the junction of its two branches to the lake, is about three-fourths
of a mile in length. The branches flow in opposite directions
and meet at its head, nearly at right angles with it. Originally
the width of the river and its branches seldom exceeded one hun-
dred and fifty feet; of the branches and fork it was often less
than one hundred feet; but it has been greatly enlarged by the
city for the convenience of its commerce.
The city fronts on Lake Michigan, and the mouth of the Chi-
cago Kiver is near its center. The river and its branches divide
the city into three sections; one lying north of the main river
and east of its north branch, which may be called its northern
division; one lying between the north and south branches, which
may be called its western division; and one lying south of the
main river and east of the south branch, which may be called
its southern division. Along the river and its branches the city
has grown up into magnificent proportions, having a population
of six hundred thousand souls. Eunning back from them on both
sides are avenues and streets lined with blocks of edifices, public
and private, with stores and warehouses, and the immense variety
of buildings suited for the residence and the business of this
vast population. These avenues and streets are connected by a
great number of bridges, over which there is a constant passage
of foot-passengers and of vehicles of all kinds. A slight impedi-
ment to the movement causes the stoppage of a crowd of passen-
gers and a long line of vehicles.
The main business of the city, where the principal stores, ware-
houses, offices, and public buildings are situated, is in the southern
division of the city; and a large number of the persons who do
business there reside in the northern or the western division, or
in the suburbs.
While this is the condition of business in the city on the land,
the river and its branches are crowded with vessels of all kinds;
sailing craft and steamers, boats, barges, and tugs, moving back-
wards and forwards, and loading and unloading. Along the banks
there are docks, warehouses, elevators, and all the appliances for
shipping and reshipping goods. To these vessels the unrestricted
navigation of the river and its branches is of the utmost impor-
ESCANABA COMPANY v. CHICAGO. 301
<tance; while to those who are compelled to cross the river and its
branches the bridges are a necessity. The object of wise legisla-
tion is to give facilities to both, with the least obstruction to
either. This the city of Chicago has endeavored to do.
The State of Illinois, within which, as already mentioned, the
river and its branches lie, has vested in the authorities of the city
jurisdiction over bridges within its limits, their construction, re-
pair, and use, and empowered them to deepen, widen, and change
the channel of the stream, and to make regulations in regard to
the times at which the bridges shall be kept open for the passage
of vessels.
Acting upon the power thus conferred, the authorities have
endeavored to meet the wants of commerce with other States, and
the necessities of the population of the city residing or doing
business in different sections. For this purpose they have pre-
scribed as follows: that "Between the hours of six and seven
o'clock in the morning, and half-past five and half-past six o'clock
in the evenings, Sundays excepted, it shall be unlawful to open
any bridge within the city of Chicago;" and that "During the
hours between seven o'clock in the morning and half-past five
o'clock in the evening, it shall be unlawful to keep open any
bridge within the city of Chicago for the purpose of permitting
vessels or other crafts to pass through the same, for a longer
period at any one time than ten minutes, at the expiration of
which period it shall be the duty of the bridge-tender or other
person in charge of the bridge to display the proper signal, and
immediately close the same, and keep it closed for fully ten min-
utes for such persons, teams, or vehicles as may be waiting to pass
over, if so much time shall be required; when the said bridge
shall again be opened (if necessary for vessels to pass) for a like
period, and so on alternately (if necessary) during the hours last
aforesaid; and in every instance where any such bridge shall be
open for the passage of any vessel, vessels, or other craft, and
closed before the expiration of ten minutes from the time of open-
ing, said bridge shall then, in every such case, remain closed for
fully ten minutes, if necessary, in order to allow all persons, teams,
and vehicles in waiting to pass over said bridge."
The first of these requirements was called for to accommodate
clerks, apprentices, and laboring men seeking to cross the bridges,
at the hours named, in going to and returning from their places of
labor. Any unusual delay in the morning would derange their
business for the day, and subject them to a corresponding loss of
wages. At the hours specified there is three times so the record
302 CASES ON CONSTITUTIONAL LAW.
shows the usual number of pedestrians going and returning that
there is during other hours.
The limitation of ten minutes for the passage of the draws by
vessels seems to have been eminently wise and proper for the pro-
tection of the interests of all parties. Ten minutes is ample time
for any vessel to pass the draw of a bridge, and the allowance of
more time would subject foot-passengers, teams, and other vehicles
to great inconvenience and delays.
The complainant principally objects to this ten minutes' lim-
itation, and to the assignment of the morning and evening hour
to pedestrians and vehicles. It insists that the navigation of the
river and its branches should not be thus delayed; and that the
rights of commerce by vessels are paramount to the rights of com-
merce by any other way.
But in this view the complainant is in error. The rights of
each class are to be enjoyed without invasion of the equal rights
of others. Some concession must be made on every side for the
convenience and the harmonious pursuit of different occupations.
Independently of any constitutional restrictions, nothing would
seem more just and reasonable, or better designed to meet the
wants of the population of an immense city, consistently with the
interests of commerce than the ten minutes rule and the
assignment of the morning and evening hours which, the city ordi-
nance has prescribed.
The power vested in the general government to regulate inter-
state and foreign commerce involves the control of the waters
of the United States which are navigable in fact, so far as it may
be necessary to insure their free navigation, when by themselves
or their connection with other waters they form a continuous
channel for commerce among the States or with foreign coun-
tries. The Daniel Ball, 10 Wall., 557. Such is the case with the
Chicago Kiver and its branches. The common-law test of the
navigability of waters, that they are subject to the ebb and flow
of the tide, grew out of the fact that in England there are no
waters navigable in fact, or to any great extent, which are not
also affected by the tide. That test has long since been discarded
in this country. Vessels larger than any which existed in Eng-
land, when that test was established, now navigate rivers and
inland lakes for more than a thousand miles beyond the reach
of any tide. That test only becomes important when considering
the rights of riparian owners to the bed of the stream, as in
some States it governs in that matter.
The Chicago River and its branches must, therefore, be deemed
ESC AN ABA COMPANY v. CHICAGO.
navigable waters of the United States, over which Congress Binder
its commercial power may exercise control to the extent neces-
sary to protect, preserve, and improve their free navigation.
But the States have full power to regulate within their limits
matters of internal police, including in that general designation
whatever will promote the peace, comfort, convenience, and pros-
perity of their people. This power embraces the construction of
roads, canals, and bridges, and the establishment of ferries, and
it can generally be exercised more wisely by the States than by a
distant authority. They are the first to see the importance of
such means of internal communication, and are more deeply con-
cerned than others in their wise management. Illinois is more
immediately affected by the bridges over the Chicago Eiver and
its branches than any other State, and is more directly con-
cerned for the prosperity of the city of Chicago, for the con-
venience and comfort of its inhabitants, and the growth of its
commerce. And nowhere could the power to control the bridges
in that city, their construction, form, and strength, and the size
of their draws, and the manner and times of using them, be bet-
ter vested than with the State, or the authorities of the city upon
whom it has devolved that duty. When its power is exercised, so
as to unnecessarily obstruct the navigation of the river or its
branches, Congress may interfere and remove the obstruction. If
the power of the State and that of the Federal government come
in conflict, the latter must control and the former yield. This
necessarily follows from the position given by the Constitution to
legislation in pursuance of it, as the supreme law of the land.
But until Congress acts on the subject, the power of the State
over bridges across its navigable streams is plenary. This doc-
trine has been recognized from the earliest period, and approved
in repeated cases, the most notable of which are Willson v. The
Blackbird Creek Marsh Co., 2 Pet., 245, decided in 1829, and
Gilman v. Philadelphia, 3 Wall., 713, decided in 1865. . . .
[Here follow citations from these cases and from Pound v. Turck,
95 U. S., 459.]
The doctrine declared in these several decisions is in accord-
ance with the more general doctrine now firmly established, that
the commercial power of Congress is exclusive of State authority
only when the subjects upon which it is exercised are national in
their character, and admit and require uniformity of regulation
affecting alike all the States. Upon such subjects only that
authority can act which can speak for the whole country. Its
non-action is therefore a declaration that they shall remain free
304 CASES ON CONSTITUTIONAL LAW.
from all regulation. "Welton v. State of Missouri, 91 U. S., 275;
Henderson v. Mayor of New York, 92 Id., 259; County of Mobile
v. Kimball, 102 Id., 691.
On the other hand, where the subjects on which the power may
be exercised are local in their nature or operation, or constitute
mere aids to commerce, the authority of the State may be exerted
for their regulation and management until Congress interferes
and supersedes it. As said in the case last cited: "The uniform-
ity of commercial regulations which the grant to Congress was
designed to secure against conflicting State provisions, was neces-
sarily intended only for cases where such uniformity is practicable.
Where, from the nature of the subject or the sphere of its opera-
tions, the case is local and limited, special regulations, adapted to
the immediate locality, could only have been contemplated. State
action upon such subjects can constitute no interference with the
commercial power of Congress, for when that acts the State
authority is superseded. Inaction of Congress upon these subjects
of a local nature or operation, unlike its inaction upon matters
affecting all the States and requiring uniformity of regulation, is
not to be taken as a declaration that nothing shall be done in
respect to them, but is rather to be deemed a declaration that
for the time being and until it sees fit to act they may be regu-
lated by State authority."
Bridges over navigable streams, which are entirely within the
limits of a State, are of the latter class. The local authority can
better appreciate their necessity, and can better direct the manner
in which they shall be used and regulated than a government at
a distance. It is therefore, a matter of good sense and practical
wisdom to leave their control and management with the States,
Congress having the power at all times to interfere and super-
sede their authority whenever they act arbitrarily and to the
injury of commerce.
It is, however, contended here that Congress has interfered,
and by its legislation expressed its opinion" as to the navigation of
Chicago River and its branches; that it has done so by acts
recognizing the ordinance of 1787, and by appropriations for the
improvement of the harbor of Chicago.
The ordinance of 1787 for the government of the territory of
the United States northwest of the Ohio River, contained in its
fourth article a clause declaring that, "The navigable waters lead-
ing into the Mississippi and St. Lawrence, and the carrying places
between them, shall be common highways and forever free, as well
to the inhabitants of the said territory as to the citizens of
ESCANABA COMPANY v. CHICAGO. 305
the United States and those of any other States that may be ad-
mitted into the confederacy, without any tax, impost, or duty
therefor."
The ordinance was passed July 13, 1787, one year and nearly
eight months before the Constitution took effect; and although it
appears to have been treated afterwards as in force in the terri-
tory, except as modified by Congress, and by the Act of May 7,
1800, c. 41, creating the Territory of Indiana, and by the Act of
Feb. 3, 1809, c. 13, creating the Territory of Illinois, the rights
and privileges granted by the ordinance are expressly secured to
the inhabitants of those Territories; and although the act of
April 18, 1818, c. 67, enabling the people of Illinois Territory to
form a constitution and State government, and the resolution
of Congress of Dec. 3, 1818, declaring the admission of the State
into the Union, refer to the principles of the ordinance accord-
ing to which the constitution was to be formed, its provisions
could not control the authority and powers of the State after
her admission. Whatever the limitation upon her powers as a
government whilst in a territorial condition, whether from the
ordinance of 1787 or the legislation of Congress, it ceased to have
any operative force, except as voluntarily adopted by her, after
she became a State of the Union. On her admission she at once
became entitled to and possessed of all the rights of dominion and
sovereignty which belonged to the original States. She was ad-
mitted, and could be admitted, only on the same footing with
them. The language of the resolution admitting her is "on an
equal footing with the original States in all respects whatever."
3 Stat, 536. Equality of constitutional right and power is the
condition of all the States of the Union, old and new. Illinois,
therefore, as was well observed by counsel, could afterwards exer-
cise the same power over rivers within her limits that Delaware
exercised over Blackbird Creek, and Pennsylvania over the Schuyl-
kill River. Pollard's Lessee v. Hagan, 3 How., 212; Permoli v.
First Municipality, Id., 589; Strader v. Graham, 10 Id., 82.
But aside from these considerations, we do not see that the
clause of the ordinance upon which reliance is placed materially
affects the question before us. That clause contains two provi-
sions: one that the navigable waters leading into the Missis-
sippi and the St. Lawrence shall be common highways to the in-
habitants; and the other, that they shall be forever free to them
without any tax, impost, or duty therefor. The navigation of the
Illinois River is free, so far as we are informed, from any tax,
impost, or duty, and its character as a common highway is not
306 CASES ON CONSTITUTIONAL LAW.
affected by the fact that it is crossed by bridges. All highways,
whether by land or water, are subject to such crossings as the
public necessities and convenience may require, and their char-
acter as such is not changed, if the crossings are allowed under
reasonable conditions, and not so as to needlessly obstruct the
use of the highways. In the sense in which the terms are used
by publicists and statesmen, free navigation is consistent with
ferries and bridges across a river for the transit of persons and
merchandise as the necessities and convenience of the community
may require. In Palmer v. Commissioners of Cuyahoga County
we have a case in point. There application was made to the Cir-
cuit Court of the United States in Ohio for an injunction to re-
strain the erection of a drawbridge over a river in that State on
the ground that it would obstruct the navigation of the stream
and injure the property of the plaintiff. The application was
founded on the provision of the fourth article of the ordinance
mentioned. The court, which was presided over by Mr. Justice
McLean, then having a seat on this bench, refused the injunction,
observing that "This provision does not prevent a State from im-
proving the navigableness of these waters, by removing obstruc-
tions, or by dams and locks, so increasing the depth of the water
as to extend the line of navigation. Nor does the ordinance pro-
hibit the construction of any work on the river which the State
may consider important to commercial intercourse. A dam may
be thrown over the river, provided a lock is so constructed as to
permit boats to pass with little or no delay, and without charge.
A temporary delay, such as passing a lock, could not be considered
as an obstruction prohibited by the ordinance." And again:
"A drawbridge across a navigable water is not an obstruction. As
this would not be a work connected with the navigation of the
river, no toll, it is supposed, could be charged for the passage of
boats. But the obstruction would be only momentary, to raise
the draw; and as such a work may be very important in a gen-
eral intercourse of a community, no doubt is entertained as to the
power of the State to make the bridge." 3 McLean, 226. The
same observations may be made of the subsequent legislation of
Congress declaring that navigable rivers within the Territories of
the United States shall be deemed public highways. Sect. 9 of
the act of May 18, 1796, c. 29; sect. 6 of the act of March 26,
1804, c. 35.
As to the appropriations by Congress, no money has been ex-
pended on the improvement of the Chicago Eiver above the first
bridge from the lake, known as Kush Street Bridge. ISTo bridge,
ESCANABA COMPANY v. CHICAGO. 307
therefore, interferes with the navigation of any portion of the
river which has been thus improved. But, if it were otherwise, it
is not perceived how the improvement of the navigability of the
stream can affect the ordinary means of crossing it by ferries and
bridges. The free navigation of a stream does not require an
abandonment of those means. To render the action of the State
invalid in constructing or authorizing the construction of bridges
over one of its navigable streams, the general government must
directly interfere so as to supersede its authority and annul what
it has done in the matter.
It appears from the testimony in the record that the money
appropriated by Congress has been expended almost exclusively
upon what is known as the outer harbor of Chicago, a part of the
lake surrounded by breakwaters. The fact that formerly a light-
house was erected where now Rush Street Bridge stands in no
respect affects the question. A ferry was then used there; and
before the construction of the bridge the site as a light-house was
abandoned. The existing light-house is below all the bridges. The
improvements on the river above the first bridge do not represent
any expenditure of the government.
From any view of this case, we see no error in the action of
the court below, and this decree must accordingly be
Affirmed.
NOTE. A municipal ordinance prohibiting from washing and
ironing in public laundries and wash-houses within defined terri-
torial limits, from ten o'clock at night until six in the morning,
is a purely police regulation, within the competency of a munici-
pality possesed of ordinary powers. Barbier v. Connolly, 113
U. S., 27.
The Fourteenth Amendment of the Constitution does not im-
pair the police power of a State. Ib.
The prohibition by the State of Kansas, in its Constitution
and laws, of the manufacture and sale within the limits of the
State of intoxicating liquors for general use there as a beverage,
is fairly adapted to the end of protecting the community against
the evils which result from excessive use of ardent spirits, and is
not subject to the objection that, under the guise of police regu-
lations, the State is aiming to deprive the citizen of his constitu-
tional rights. Mugler v. Kansas, 123 U. S., 623.
See also The License Cases, 5 Howard, 504; The License Tax
Cases, 5 Wallace, 462; Cooley v. Wardens, 12 Howard, 299; Leisy
v. Hardin, 135 U. S., 100; Minnesota v. Barber, 136 U. S., 313;
and The Slaughter House Cases, 16 Wallace, 36.
VI. GENERAL (IMPLIED) POWERS.
McCULLOCH v. THE STATE OF MARYLAND ET AL.
4 Wheaton, 316. Decided 1819.
[The statement of facts and the second part of the opinion,
beginning on page 425 of Wheaton, are given above, page 32. The
first part of the opinion is given below.]
MARSHALL, C. J., delivered the opinion of the court. . . .
The first question made in the cause is, has congress power to
incorporate a bank?
It has been truly said, that this can scarcely be considered as
an open question, entirely unprejudiced by the former proceed-
ings of the nation respecting it. The principle now contested
was introduced at a very early period of our history, has been
recognized by many successive legislatures, and has been acted
upon by the judicial department, in cases of peculiar delicacy, as
a law of undoubted obligation.
It will not be denied, that a bold and daring usurpation might
be resisted, after an acquiescence still longer and more complete
than this. But it is conceived that a doubtful question, one on
which human reason may pause, and the human judgment be sus-
pended, in the decision of which the great principles of liberty
are not concerned, but the respective powers of those who are
equally the representatives of the people, are to be adjusted, if
not put at rest by the practice of the government, ought to re-
ceive a considerable impression from that practice. An exposi-
tion of the constitution, deliberately established by legislative
acts, on the faith of which an immense property has been ad-
vanced, ought not to be lightly disregarded.
The power now contested was exercised by the first congress
elected under the present constitution. The bill for incorporating
the Bank of the United States did not steal upon an unsuspecting
legislature, and pass unobserved. Its principle was completely
308
McCULLOCH v. STATE OF MARYLAND. 309
understood, and was opposed with equal zeal and ability. After
being resisted, first in the fair and open field of debate, and after-
wards in the executive cabinet, with as much persevering talent
as any measure has ever experienced, and being supported by argu-
ments which convinced minds as pure and as intelligent as this
country can boast, it became a law. The original act was permit-
ted to expire; but a short experience of the embarrassments to
which the refusal to revive it exposed the government, convinced
those who were most prejudiced against the measure of its neces-
sity, and induced the passage of the present law. It would require
no ordinary share of intrepidity to assert, that a measure adopted
under these circumstances, was a bold and plain usurpation, to
which the constitution gave no countenance.
These observations belong to the cause; but they are not made
under the impression that, were the question entirely new, the
law would be found irreconcilable with the constitution.
In discussing this question, the counsel for the State of Mary-
land have deemed it of some importance, in the construction of
the constitution, to consider that instrument not as emanating
from the people, but as the act of sovereign and independent
States. The powers of the general government, it has been said,
are delegated by the States, who alone are truly sovereign; and
must be exercised in subordination to the States, who alone pos-
sess supreme dominion.
It would be difficult to sustain this proposition. The conven-
tion which framed the constitution was, indeed, elected by the
state legislatures. But the instrument, when it came from their
hands, was a mere proposal, without obligation, or pretensions
to it. It was reported to the then existing congress of the United
States, with a request that it might "be submitted to a conven-
tion of delegates, chosen in each State, by the people thereof,
under the recommendation of its legislature, for their assent and
ratification." This mode of proceeding was adopted; and by the
convention, by congress, and by the State legislatures, the instru-
ment was submitted to the people. They acted upon it, in the
only manner in which they can act safely, effectively, and wisely,
on such a subject, by assembling in convention. It is true, they
assembled in their several States; and where else should they
have assembled? No political dreamer was ever wild enough to
think of breaking down the lines which separate the States, and
of compounding the American people into one common mass. Of
consequence, when they act, they act in their States. But the
measures they adopt do not, on that account, cease to be the
310 CASES ON CONSTITUTIONAL LAW.
measures of the people themselves, or become the measures of the
State governments.
From these conventions the constitution derives its whole au-
thority. The government proceeds directly from the people; is
"ordained and established" in the name of the people; and is de-
clared to be ordained, "in order to form a more perfect union,
establish justice, insure domestic tranquillity, and secure the bless-
ings of liberty to themselves and to their posterity." The assent
of the States, in their sovereign capacity, is implied in calling a
convention, and thus submitting that instrument to the people.
But the people were at perfect liberty to accept or reject it; and
their act was final. It required not the affirmance, and could not
be negatived, by the State governments. The constitution, when
thus adopted, was of complete obligation, and bound the State
sovereignties.
It has been said that the people had already surrendered all
their powers to the State sovereignties, and had nothing more to
give. But, surely, the question whether they may resume and
modify the powers granted to government, does not remain to be
settled in this country. Much more might the legitimacy of the
general government be doubted, had it been created by the States.
The powers delegated to the State sovereignties were to be exer-
cised by themselves, not by a distinct and independent sover-
eignty, created by themselves. To the formation of a league, such
as was the confederation, the State sovereignties were certainly
competent. But when, "in order to form a more perfect union,"
it was deemed necessary to change this alliance into an effective
government, possessing great and sovereign powers, and acting
directly on the people, the necessity of referring it to the people,
and of deriving its powers directly from them, was felt and
acknowledged by all.
The government of the Union, then (whatever may be the influ-
ence of this fact on the case), is emphatically and truly a govern-
ment of the people. In form and in substance it emanates from
them, its powers are granted by them, and are to be exercised
directly on them, and for their benefit.
This government is acknowledged by all to be one of enumer-
ated 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 before the people, found it necessary to
urge. That principle is now universally admitted. But the ques-
tion respecting the extent of the powers actually granted, is per-
McCULLOCH v. STATE OF MARYLAND. 311
petually arising, and will probably continue to arise, as long as
our system shall exist.
In discussing these questions, the conflicting powers of the gen-
eral and State governments 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 that it would be this: that the govern-
ment of the Union, though limited in its powers, is supreme
within its sphere of action. This would seem to result necessarily
from its nature. It is the government of all; its powers are dele-
gated 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 then|. The nation, on those subjects
on which it can act, must necessarily bind its component parts.
But this question is not left to mere reason: the people have, in
express terms, decided it, by saying, "this constitution, and the
laws of the United States, which shall be made in pursuance there-
of/' "shall be the supreme law of the land/' and by requiring that
the members of the State legislatures, and the officers of the exec-
utive and judicial departments of the States, shall take the oath
of fidelity to it.
The government of the United States, then, though limited in
its powers, is supreme; and its laws, when made in pursuance of
the constitution, form the supreme law of the land, "anything in
the constoution or laws of any State, to the contrary notwith-
standing."
Among the enumerated powers, we do not find that of estab-
lishing a bank or creating a corporation. But there is no phrase
in the instrument which, like the articles of confederation, ex-
cludes incidental or implied powers; and which requires that
everything granted shall be expressly and minutely described.
Even the 10th amendment, which was framed for the purpose of
quieting the excessive jealousies which had been excited, omits the
word "expressly," and declares only that the powers "not dele-
gated to the United States, nor prohibited to the States, are re-
served to the States or to the people;" thus leaving the question,
whether the particular power which may become the subject of
contest, has been delegated to the one government, or prohibited
to the other, to depend on a fair construction of the whole instru-
ment. The men who drew and adopted this amendment, had ex-
perienced the embarrassments resulting from the insertion of this
word in the articles of confederation, and probably omitted it to
312 CASES ON CONSTITUTIONAL LAW.
avoid those embarrassments. A constitution, to contain an ac-
curate detail of all the subdivisions of which its great powers will
admit, and of all the means by which they may be carried into
execution, would partake of the prolixity of a legal code, and could
scarcely be embraced by the human mind. It would probably
never be understood by the public. Its nature, therefore, re-
quires, that only its great outlines should be marked, its impor-
tant objects designated, and the minor ingredients which com-
pose those objects be deduced from the nature of the objects
themselves. That this idea was entertained by the framers of the
American constitution, is not only to be inferred from the nature
of th.e instrument, but from the language. Why else were some
of the limitations, found in the 9th section of the 1st article, in-
troduced? It is also, in some degree, warranted by their having
omitted to use any restrictive term which might prevent its re-
ceiving a fair and just interpretation. In considering this ques-
tion, then, we must never forget, that it is a constitution we are
expounding.
Although, among the enumerated powers of government, we
do not find the word "bank," or "incorporation," we find the great
powers to lay and collect taxes; to borrow money; to regulate
commerce; to declare and conduct war; and to raise and sup-
port armies and navies. The sword and the purse, all the external
relations, and no inconsiderable portion of the industry of the
nation, are intrusted to its government. It can never be pre-
tended that these vast powers draw after them others of inferior
importance, merely because they are inferior. Such an idea can
never be advanced. But it may, with great reason, be contended,
that a government, intrusted with such ample powers, on the due
execution of which the happiness and prosperity of the nation so
vitally depends, must also be intrusted with ample means for their
execution. The power being given, it is the interest of the nation
to facilitate its execution. It can never be their interest, and
cannot be presumed to have been their intention, to clog and
embarrass its execution by withholding the most appropriate
means. Throughout this vast republic, from the St. Croix to the
Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be
collected and expended, armies are to be marched and supported.
The exigencies of the nation may require, that the treasure raised
in the North should be transported to the South, that raised in
the East conveyed to the West, or that this order should be re-
versed. Is that construction of the constitution to be preferred
which would render these operations difficult, hazardous, and ex-
McCULLOCH v. STATE OF MARYLAND. 313
pensive? Can we adopt that construction (unless the words im-
periously require it) which would impute to the framers of that
instrument, when granting these powers for the public good, the
intention of impeding their exercise by withholding a choice of
means? If, indeed, such be the mandate of the constitution, we
have only to obey; but that instrument does not profess to
enumerate the means by which the powers it confers may be exe-
cuted; nor does it prohibit the creation of a corporation, if the
existence of such a being be essential to the beneficial exercise of
those powers. It is, then, the subject of fair inquiry, how far such
means may be employed.
It is not denied, that the powers given to the government imply
the ordinary means of execution. That, for example, of raising
revenue, and applying it to national purposes, is admitted to imply
the power of conveying money from place to place, as the exigen-
cies of the nation may require, and of employing the usual means
of conveyance. But it is denied that the government has its
choice of means; or, that it may employ the most convenient
means, if, to employ them, it be necessary to erect a corporation.
On what foundation does this argument rest? On this alone:
The power of creating a corporation, is one appertaining to sov-
ereignty, and is not expressly conferred on Congress. This is true.
But all legislative powers appertain to sovereignty. The original
power of giving the law on any subject whatever, is a sovereign
power; and if the government of the Union is restrained from
creating a corporation, as a means for performing its functions,
on the single reason that the creation of a corporation is an act
of sovereignty; if the sufficiency of this reason be acknowledged,
there would be some difficulty in sustaining the authority of con-
gress to pass other laws for the accomplishment of the same ob-
jects.
The government which has a right to do an act, and has im
posed on it the duty of performing that act, must, according to
the dictates of reason, be allowed to select the means; and those
who contend that it may not select any appropriate means, that
one particular mode of effecting the object is excepted, take upon
themselves the burden of establishing that exception.
The creation of a corporation, it is said, appertains to sover-
eignty. This is admitted. But to what portion of sovereignty does
it appertain? Does it belong to one more than to another? In
America, the powers of sovereignty are divided between the gov-
ernment of the Union, and those of the States. They are each
sovereign, with respect to the objects committed to it, and neither
314 CASES ON CONSTITUTIONAL LAW.
sovereign with respect to the objects committed to the other. "We
cannot comprehend that train of reasoning which would maintain,
that the extent of power granted by the people is to be ascertained,
not by the nature and terms of the grant, but by its date. Some
state constitutions were formed before, some since that of the
United States. We cannot believe that their relation to each other
is in any degree dependent upon this circumstance. Their respect-
ive powers must, we think, be precisely the same as if they had been
formed at the same time. Had they been formed at the same time,
and had the people conferred on the general government the power
contained in the constitution, and on the States the whole re-
siduum of power, would it have been asserted that the government
of the Union was not sovereign with respect to those objects
which were intrusted to it, in relation to which its laws were de-
clared to be supreme? If this could not have been asserted, we
cannot well comprehend the process of reasoning which main-
tains, that a power appertaining to sovereignty cannot be con-
nected with that vast portion of it which is granted to the general
government, so far as it is calculated to subserve the legitimate
objects of that government. The power of creating a corpora-
tion, though appertaining to sovereignty, is not, like the power
of making war, or levying taxes, or of regulating commerce, a
great substantive and independent power, which cannot be im-
plied as incidental to other powers, or used as a means of executing
them. It is never the end for which other powers are exercised,
but a means by which other objects are accomplished. No con-
tributions are made to charity for the sake of an incorporation,
but a corporation is created to administer the charity; no seminary
of learning is instituted in order to be incorporated, but the cor-
porate character is conferred to subserve the purposes of educa-
tion. No city was ever built with the sole object of being incor-
porated, but is incorporated as affording the best means of being
well governed. The power of creating a corporation is never used
for its own sake, but for the puropse of effecting something else.
No sufficient reason is, therefore, perceived, why it may not pass
as incidental to those powers which are expressly given, if it be a
direct mode of executing them.
But the constitution of the United States has not left the right
of congress to employ the necessary means, for the execution of
the powers conferred on the government, to general reasoning.
To its enumeration of powers is added that of making "all laws
which shall be necessary and proper, for carrying into execution
the foregoing powers, and all other powers vested by this constitu-
McCULLOCH v. STATE OF MARYLAND. 315
tion, in the government of the United States, or in any depart-
ment thereof/'
The counsel for the State of Maryland have urged various argu-
ments, to prove that this clause, though in terms a grant of power,
is not so in effect; but is really restrictive of the general right,
which might otherwise be implied, of selecting means for execut-
ing the enumerated powers.
In support of this proposition, they have found it necessary to
contend, that this clause was inserted for the purpose of confer-
ring on congress the power of making laws. That, without it,
doubts might be entertained, whether congress could exercise its
powers in the form of legislation.
But could this be the object for which it was inserted? A
government is created by the people, having legislative, executive,
and judicial powers. Its legislative powers are vested in a con-
gress, which is to consist of a senate and house of representatives.
Each house may determine the rule of its proceedings; and it is
declared that every bill which shall have passed both houses,
shall, before it becomes a law, be presented to the President of
the United States. The 7th section describes the course of pro-
ceedings, by which a bill shall become a law; and, then, the 8th
section enumerates the powers of congress. Could it be necessary
to say, that a legislature should exercise legislative powers, in the
shape of legislation? After allowing each house to prescribe its
own course of proceeding, after describing the manner in which
a bill should become a law, would it have entered into the mind
of a single member of the convention, that an express power to
make laws was necessary to enable the legislature to make them?
That a legislature, endowed with legislative powers, can legislate,
is a proposition too self-evident to have been questioned.
But the argument on which most reliance is placed, is drawn
from the peculiar language of this clause. Congress is not em-
powered by it to make all laws, which may have relation to the
powers conferred on the government, but only such as may be
"necessary and proper" for carrying them into execution. The
word "necessary" is considered as controlling the whole sentence,
and as limiting the right to pass laws for the execution of the
granted powers, to such as are indispensable, and without which
the power would be nugatory. That it excludes the choice of
means, and leaves to congress, in each case, that only which is
most direct and simple.
Is it true, that this is the sense in which the word "necessary"
is always used? Does it always import an absolute physical neces-
316 CASES ON CONSTITUTIONAL LAW.
sity, so strong, that one thing, to which another may be termed
necessary, cannot exist without that other? We think it does not.
If reference be had to its use, in the common affairs of the world,
or in approved authors, we find that it frequently imports no more
than that one thing is convenient, or useful, or essential to an-
other. To employ the means necessary to an end, is generally
understood as employing any means calculated to produce the end,
and not as being confined to those single means, without which
the end would be entirely unattainable. Such is the character
of human language, that no word conveys to the mind, in all situ-
ations, one single definite idea; and nothing is more common
than to use words in a figurative sense. Almost all compositions
contain words, which, taken in their rigorous sense, would convey
a meaning different from that which is obviously intended. It is
essential to just construction, that many words which import
something excessive, should be understood in a more mitigated
sense in that- sense which common usage justifies. The word
"necessary" is of this description. It has not a fixed character
peculiar to itself. It admits of all degrees of comparison; and is
often connected with words, which increase or diminish the im-
pression the mind receives of the urgency it imports. A thing
may be necessary, very necessary, absolutely or indispensably nec-
essary. To no mind would the same idea be conveyed, by these
several phrases. This comment on the word is well illustrated,
by the passage cited at the bar, from the 10th section of the 1st
article of the constitution. It is, we think, impossible to com-
pare the sentence which prohibits a State from laying "imposts,
or duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws," with that which au-
thorizes congress "to make all laws which shall be necessary and
proper for carrying into execution" the powers of the general gov-
ernment, without feeling a conviction that the convention under-
stood itself to change materially the meaning of the word "neces-
sary" by prefixing the word "absolutely." This word, then, like
others, is used in various senses; and, in its construction, the sub-
ject, the context, the intention of the person using them, are all
to be taken into view.
Let this be done in the case under consideration. The subject
is the execution of those great powers on which the welfare of a
nation essentially depends. It must have been the intention of
those who gave these powers, to insure as far as human prudence
could insure, their beneficial execution. This could not be done
by confining the choice of means to such narrow limits as not to
McCULLOCH v. STATE OF MARYLAND. 317
leave it in the power of congress to adopt any which might be
appropriate, and which were conducive to the end. This pro-
vision is made in a constitution intended to endure for ages to
come, and, consequently, to be adapted to the various crises of
human affairs. To have prescribed the means by which govern-
ment should, in all future time, execute its powers, would have
been to change, entirely, the character of the instrument, and
give it the properties of a legal code. It would have been an un-
wise attempt to provide, by immutable rules, for exigencies which,
if foreseen at all, must have been seen dimly, and which can be
best provided for as they occur. To have declared that the best
means shall not be used, but those alone without which the power
given would be nugatory, would have been to deprive the legis-
lature of the capacity to avail itself of experience, to exercise its
reason, and to accommodate its legislation to circumstances. If
we apply this principle of construction to any of the powers of the
government, we shall find it so pernicious in its operation that we
shall be compelled to discard it. The powers vested in congress
may certainly be carried into execution, without prescribing an
oath of office. The power to exact this security for the faithful
performance of duty, is not given, nor is it indispensably necessary.
The different departments may be established; taxes may be im-
posed and collected; armies and navies may be raised and main-
tained; and money may be borrowed, without requiring an oath
of office. It might be argued, with as much plausibility, as other
incidental powers have been assailed, that the convention was not
unmindful of this subject. The oath which might be exacted
that of fidelity to the constitution is prescribed, and no other
can be required. *Yet, he would be charged with insanity who
should contend, that the legislature might not superadd to the
oath directed by the constitution, such other oath of office as its
wisdom might suggest.
So, with respect to the whole penal code of the United States.
Whence arises the power to punish in cases not prescribed by the
constitution? All admit that the government may, legitimately,
punish any violation of its laws; and yet, this is not among the
enumerated powers of congress. The right to enforce the ob-
servance of law, by punishing its infraction, might be denied with
the more plausibility, because it is expressly given in some cases.
Congress is empowered "to provide for the punishment of coun-
terfeiting the securities and current coin of the United States,"
and "to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations." The several
318 CASES ON CONSTITUTIONAL LAW.
powers of congress may exist, in a very imperfect state to be
sure, but they may exist and be carried into execution, although
no punishment should be inflicted in cases where the right to
punish is not expressly given.
Take, for example, the power "to establish post-offices and
poet-roads." This power is executed by the single act of making
the establishment. But from this has been inferred the power
and duty of carrying the mail along the post-road, from one post-
office to another. And, from this implied power, has again been
inferred the right to punish those who steal letters from the post-
office, or rob the mail. It may be said, with some plausibility, that
the right to carry the mail, and to punish those who rob it, is not
indispensably necessary to the establishment of a post-office and
post-road. This right is, indeed, essential to the beneficial exer-
cise of the power, but not indispensably necessary to its existence.
So, of the punishment of the crimes of stealing or falsifying a
record or process of a court of the United States, or of perjury in
such court. To punish these offenses is certainly conducive to
the due administration of justice. But courts may exist, and may
decide the causes brought before them, though such crimes escape
punishment.
The baneful influence of this narrow construction on all the
operations of the government, and the absolute impracticability
of maintaining it without rendering the government incompetent
to its great objects, might be illustrated by numerous examples
drawn from the constitution, and from our laws. The good sense
of the public has pronounced, without hesitation, that the power
of punishment appertains to sovereignty, and may be exercised
whenever the sovereign has a right to act, a*s incidental to his
constitutional powers. It is a means for carrying into execution
all sovereign powers, and may be used, although not indispensa-
bly necessary. It is a right incidental to the power, and conducive
to its beneficial exercise.
If this limited construction of the word "necessary" must be
abandoned in order to punish, whence is derived the rule which
would reinstate it, when the government would carry its powers
into execution by means not vindictive in their nature? If the
word "necessary" means "needful," "requisite," "essential," "con-
ducive to," in order to let in the power of punishment for the in-
fraction of law, why is it not equally comprehensive when required
to authorize the use of means which facilitate the execution of the
powers of government without the infliction of punishment?
In ascertaining the sense in which the word "necessary" is used
McCULLOCH V. STATE OF MARYLAND. 319
in this clause of the constitution, we may derive some aid from
that with which it is associated. Congress shall have power "to
make all laws which shall be necessary and proper to carry into
execution" the powers of the government. If the word "neces-
sary" was used in that strict and rigorous sense for which the
counsel for the State of Maryland contend, it would be an ex-
traordinary departure from the usual course of the human mind,
as exhibited in composition, to add a word, the only possible effect
of which is to qualify that strict and rigorous meaning; to pre-
sent to the mind the idea of some choice of means of legislation
not straitened and compressed within the narrow limits for which
gentlemen contend.
But the argument which most conclusively demonstrates the
error of the construction contended for by the counsel for the State
of Maryland, is founded on the intention of the convention, as
manifested in the whole clause. To waste time and argument in
proving that, without it, congress might carry its powers into exe-
cution, would be not much less idle than to hold a lighted taper
to the sun. As little can it be required to prove, that in the ab-
sence of this clause, congress would have some choice of means.
That it might employ those which, in its judgment, would most
advantageously effect the object to be accomplished. That any
means adapted to the end, any means which tended directly to
the execution of the constitutional powers of the government,
were in themselves constitutional. This clause, as construed by
the State of Maryland, would abridge and almost annihilate this
useful and necessary right of the legislature to select its means.
That this could not be intended, is, we should think, had it not
been already controverted, too apparent for controversy. We
think so for the following reasons:
1. The clause is placed among the powers of congress, not
among the limitations on those powers.
2. Its terms purport to enlarge, not to diminish the powers
vested in the government. It purports to be an additional power,
not a restriction on those already granted. No reason has been
or can be assigned, for thus concealing an intention to narrow the
discretion of the national legislature, under words which purport
to enlarge it. The framers of the constitution wished its adoption,
and well knew that it would be endangered by its strength, not by
its weakness. Had they been capable of using language which
would convey to the eye one idea, and after deep reflection, im-
press on the mind another, they would rather have disguised the
grant of power, than its limitation. If then, their intention had
320 CASES ON CONSTITUTIONAL LAW.
been, by this clause, to restrain the free use of means which might
otherwise have been implied, that intention would have been in-
serted in another place, and would have been expressed in terms
resembling these: "In carrying into execution the foregoing pow-
ers, and all others," &c., "no laws shall be passed but such as are
necessary and proper." Had the intention been to make this
clause restrictive, it would unquestionably have been so in form
as well as in effect.
The result of the most careful and attentive consideration be-
stowed upon this clause is, that if it does not enlarge, it cannot
be construed to restrain the powers of congress, or to impair the
right of the legislature to exercise its best judgment in the selec-
tion of measures, to carry into execution the constitutional powers
of the government. If no other motive for its insertion can be
suggested, a sufficient one is found in the desire to remove all
doubts respecting the right to legislate on that vast mass of inci-
dental powers which must be involved in the constitution, if that
instrument be not a splendid bauble.
We admit ? as all must admit, that the powers of the govern-
ment 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 discretion, with respect to
the means by which the powers it confers are to be carried into
execution, 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 legitimate, 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.
That a corporation must be considered as a means not less
usual, not of higher dignity, not more requiring a particular speci-
fication than other means, has been sufficiently proved. If we
look to the origin of corporations, to the manner in which they
have been framed in that government, from which we have de-
rived most of our legal principles and ideas, or to the uses to
which they have been applied, we find no reason to suppose that
a constitution, omitting, and wisely omitting, to enumerate all the
means for carrying into execution the great powers vested in gov-
ernment, ought to have specified this. Had it been intended to
grant this power as one which should be distinct and independent,
to be exercised in any case whatever, it would have found a place
among the enumerated powers of the government. But being
considered merely as a means, to be employed only for the pur-
McCULLOCH v. STATE OF MARYLAND. 321
pose of carrying into execution the given powers, there could be
no motive for particularly mentioning it.
The propriety of this remark would seem to be generally
acknowledged by the universal acquiescence in the construction
which has been uniformly put on the 3d section of the 4th article
of the constitution. The power to "make all needful rules and
regulations respecting the territory or other property belonging
to the United States," is not more comprehensive, than the power
"to make all laws which shall be necessary and proper for carrying
into execution" the powers of the government. Yet all admit the
constitutionality of a territorial government, which is a corporate
body.
If a corporation may be employed indiscriminately with other
means to carry into execution the powers of the government, no
particular reason can be assigned for excluding the use of a bank,
if required for its fiscal operations. To use one, must be within
the discretion of congress, if it be an appropriate mode of execut-
ing the powers of government. That it is a convenient, a useful,
and essential instrument in the prosecution of its fiscal operations,
is not now a subject of controversy. All those who have been
concerned in the administration of our finances, have concurred
in representing its importance and necessity; and so strongly
have they been felt, that statesmen of the first class, whose pre-
vious opinions against it had been confirmed by every circum-
stance which can fix the human judgment, have yielded those
opinions to the exigencies of the nation. Under the confederation,
congress justifying the measure by its necessity, transcended, per-
haps, its powers to obtain the advantage of a bank; and our own
legislation attests the universal conviction of the utility of this
measure. The time has passed away when it can be necessary to
enter into any discussion in order to prove the importance of this
instrument, as a means to effect the legitimate objects of the gov-
ernment.
But were its necessity less apparent, none can deny its being an
appropriate measure; and if it is, the degree of its necessity, as
has been very justly observed, is to be discussed in another place.
Should congress, in the execution of its powers, adopt measures
which are prohibited by the constitution; or should congress,
under the pretext of executing its powers, pass laws for the ac-
complishment of objects not intrusted to the government, it would
become 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 law is not prohibited, and is
21
322 CASES ON CONSTITUTIONAL LAW.
really calculated to effect any of the objects intrusted to the gov-
ernment, to undertake here to inquire into the degree of its neces-
sity, would be to pass the line which circumscribes the judicial
department, and to tread on legislative ground. This court dis-
claims all pretensions to such a power.
After this declaration, it can scarcely be necessary to say, that
the existence of state banks can have no possible influence on the
question. No trace is to be found in the constitution of an inten-
tion to create a dependence of the government of the Union on
those of the States, for the execution of the great powers assigned
to it. Its means are adequate to its ends; and on those means
alone was it expected to rely for the accomplishment of its ends.
To impose on it the necessity of resorting to means which it can-
not control, which another government may furnish or withhold,
would render its course precarious., the result of its measures un-
certain, and create a dependence on other governments, which
might disappoint its most important designs, and is incompatible
with the language of the constitution. But were it otherwise, the
choice of means implies a right to choose a national bank in prefer-
ence to state banks, and congress alone can make the election.
After the most deliberate consideration, it is the unanimous and
decided opinion of this court, that the act to incorporate the Bank
of the United States is a law made in pursuance of the constitu-
tion, and is a part of the supreme law of the land.
The branches, proceeding from the same stock, and being con-
ducive to the complete accomplishment of the object, are equally
constitutional. It would have been unwise to locate them in the
charter, and it would be unnecessarily inconvenient to employ the
legislative power in making those subordinate arrangements. . The
great duties of the bank are prescribed; those duties require
branches, and the bank itself may, we think, be safely trusted
with the selection of places where those branches shall be fixed;
reserving always to the government the rierht to require that a
branch shall be located where it may be deemed necessary.
It being the opinion of the court that the act incorporating the
bank is constitutional; and that the power of establishing a
branch in the State of Maryland might be properly exercised by
the bank itself, we proceed to inquire:
2. Whether the State of Maryland may, without violating the
constitution, tax that branch? . . .
We are unanimously of opinion, that the law passed by the
legislature of Maryland, imposing a tax on the Bank of the United
States, is unconstitutional and void. . . .
McCULLOCH v. STATE OF MARYLAND. 323
NOTE. The most important discussions of the implied powers
of Congress are those found in the legal tender cases. See Knox
v. Lee, 12 Wallace, 457, and Juilliard v. Greenman, 110 U. S.,
421. See also James Wilson's Considerations on the Power to
Incorporate the Bank of North America, Works (Andrews' edi-
tion), I, 549-577. Although a discussion of the inherent or im-
plied powers of the Confederation, its reasoning is applicable to
the implied powers of the government under -the Constitution.
Bryce says of Marshall's opinion in this case (American Com-
monwealth, 3d Ed., I, 379, note), "This is really a working-out of
one of the points of Hamilton's famous argument in favor of the
constitutionality of a United States bank: 'Every power vested
in a government is in its nature sovereign, and includes by force
of the term a right to employ all the means requisite and fairly
applicable to the attainment of the ends of such power, and which
are not precluded by restrictions and exceptions specified in the
Constitution.' Works (Lodge's Ed.), vol. iii, p. 181."
"It is unnecessary for me to point out . . . the great influ-
ence which that decision of the Supreme Court has exercised 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 wildcat systems of paper
money prevalent a few years since in this country, can bear feeling
testimony to the value of a so-called national bank system."
Miller, Lectures on the Constitution of the United States, 391.
VII. EXECUTIVE POWERS.
In Ex PAETE GARLAND, 4 Wallace, 333 (1866), the validity of
an act of Congress requiring every person admitted to practice
before a United States court to take an oath that he had never
borne arms against the United States nor held office under any
authority hostile to the United States was called in question. Mr.
Justice Field said with reference to the nature of the pardoning
power of the President,
"The Constitution provides that the President 'shall have power
to grant reprieves and pardons for offenses against the United
States, except in cases of impeachment.' 1
"The power thus conferred is unlimited, with the exception
stated. It extends to every offense known to the law, and may be
exercised at any time after its commission, either before legal
proceedings are taken, or during their pendency, or after convic-
tion and judgment. This power of th& President is not subject
to legislative control. Congress can neither limit the effect of his
pardon, nor exclude from its exercise any class of offenders. The
benign prerogative of mercy imposed in him cannot be fettered
by any legislative restrictions.
"Such being the case, the inquiry arises as to the effect and
operation of a pardon, and on this point all the authorities concur.
A pardon reaches both the punishment prescribed for the offense
and the guilt of the offender; and when the pardon is full, it re-
leases 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 offense. If granted before conviction, it pre-
vents any of the penalties and disabilities consequent upon con-
viction from attaching; if granted after conviction, it removes
the penalties and disabilities, and restores him to all his civil
rights; it makes him, as it were, a new man, and gives him a new
credit and capacity.
"There is only this limitation to its operation: it does not re-
i Article II, 2.
324
IN RE NEAGLE. 325
store offices forfeited, or property or interests vested in others in
consequence of the conviction and judgment. 2
"The pardon produced by the petition is a full pardon 'for
all offenses by him committed, arising from participation, direct or
implied, in the Kebellion,' and is subject to certain conditions
which have been complied with. The effect of this pardon is to
relieve the petitioner from all penalties and disabilities attached
to the offense of treason, committed by his participation in the
Kebellion. So far as that offense is concerned, he is thus placed
beyond the reach of punishment of any kind. But to exclude
him, by reason of that offense, from continuing in the enjoyment
of a previously acquired right, is to enforce a punishment for that
offense notwithstanding the pardon. If such exclusion can be
effected. by the exaction of an expurgatory oath covering the of-
fense, the pardon may be avoided, and that accomplished indi-
rectly which cannot be reached by direct legislation. It is not
within the constitutional power of Congress thus to inflict pun-
ishment beyond the reach of executive clemency. From the pe-
titioner, therefore, the oath required by the act of January 24th,
1865, could not be exacted, even if that act were not subject to
any other objection than the one thus stated."
IN BE NEAGLE.
135 U. S., 1. Decided 1890.
MR. JUSTICE MILLER, on behalf of the court, stated the case as
follows:
This was an appeal by Cunningham, sheriff of the county of
San Joaquin, in the State of California, from a judgment of the
Circuit Court of the United States for the Northern District of
California, discharging David Neagle from the custody of said
sheriff, who held him a prisoner on a charge of murder.
On the 16th day of August, 1889, there was presented to Judge
Sawyer, the Circuit Judge of the United States for the Ninth Cir-
cuit, embracing the Northern District of California, a petition
signed David Neagle, deputy United States marshal, by A. L.
Fairish on his behalf. This petition represented that the said
Farrish was a deputy marshal duly appointed for the Northern
24 Blackstone's Commentaries, Pardon; Hawkins, book 2, c. 37,
402; 6 Bacon's Abridgment, tit 34 and 54.
326 CASES ON CONSTITUTIONAL LAW.
District of California by J. C. Franks, who was the marshal of that
district. It further alleged that David Xeagle was, at the time of
the occurrences recited in the petition and at the time of filing it,
a duly appointed and acting deputy United States marshal for the
same district. It then proceeded to state that said Neagle was
imprisoned, confined, and restrained of his liberty in the county
jail in San Joaquin County, in the State of California, by Thomas
Cunningham, sheriff of said county, upon a charge of murder,
under a warrant of arrest, a copy of which was annexed to the
petition.' The warrant was as follows:
"In the Justice's Court of Stockton Township.
"STATE OF CALIFORNIA,
County of San Joaquin,
"The People of the State of California to any sheriff, constable,
marshal, or policeman of said State or of the county of San
Joaquin:
"Information on oath having been this day laid before me by
Sarah A. Terry that the crime of murder, a felony, has been com-
mitted within said county of San Joaquin on the 14th day of Au-
gust, A. D. 1889, in this, that one David S. Terry, a human being
then and there being, was wilfully, unlawfully, feloniously, and
with malice aforethought shot, killed, and murdered, and accus-
ing Stephen J. Field and David Neagle thereof: You are there-
fore commanded forthwith to arrest the above-named Stephen J.
Field 3 and David Neagle and bring them before me, at my office,
in the city of Stockton, or, in case of my absence or inability to
act, before the nearest and most accessible magistrate in the
county.
"Dated at Stockton this 14th day of August, A. D. 1889.
"H. V. J. SWAIN,
"Justice of the Peace.
3 The Governor of California, on burning disgrace to the State un-
learning that a warrant had been less disavowed." The Attorney-
issued for the arrest of Mr. Justice General as promptly responded by
Field, promptly wrote to the At- advising the District Attorney that
torney-General of the State, urg- there was "no evidence to impli-
ing "the propriety of at once in- cate Justice Field in said shoot-
structing the District Attorney of ing," and that "public justice de-
San Joaquin County to dismiss the mands that the charge against him
unwarranted proceeding against be dismissed," which was accord-
him," as his arrest "would be a ingly done.
IN RE NEAGLE. 327
"The defendant, David Neagle, having been brought before me
on this warrant, is committed for examination to the sheriff of
San Joaquin County, California.
"Dated August 15, 1889. H. V. J. SWAIN,
"Justice of the Peace."
The petition then recited the circumstances of a rencontre
between said Neagle and David S. Terry, in which the latter was
instantly killed by two shots from a revolver in the hands of
the former. The circumstances of this encounter and of what led
to it will be considered with more particularity hereafter. The
main allegation of this petition was that Neagle, as United States
deputy marshal, acting under the orders of Marshal Franks, and
in pursuance of instructions from the Attorney-General of the
United States, had, in consequence of an anticipated attempt at
violence on the part of Terry against the Honorable Stephen J.
Field, a justice of the Supreme Court of the United States, been
in attendance upon said justice, and was sitting by his side at a
breakfast table when a murderous assault was made by Terry on
Judge Field, and in defense of the life of the judge the homicide
was committed for which Neagle was held by Cunningham. The
allegation was very distinct that Justice Field was engaged in the
discharge of his duties as circuit justice of the United States for
that circuit, having held court at Los Angeles, one of the places
at which the court is by law held, and, having left that court, was
on his way to San Francisco for the purpose of holding the Circuit
Court at that place. The allegation was also very full that Neagle
was directed by Marshal Franks to accompany him for the purpose
of protecting him, and that these orders of Franks were given in an-
ticipation of the assault which actually occurred. It was also stated,
in more general terms, that Marshal Neagle, in killing Terry
under the circumstances, was in the discharge of his duty as an
officer of the United States, and was not, therefore, guilty of
a murder, and that his imprisonment under the warrant held
by Sheriff Cunningham was in violation of the laws and Consti-
tution of the United States, and that he was in custody for an
act done in pursuance of the laws of the United States. This
petition being sworn to by Farrish, and presented to Judge Saw-
yer, he made the following order:
"Let a writ of habeas corpus issue in pursuance of the prayer
of the within petition, returnable before the United States Cir-
cuit Court for the Northern District of California,
"SAWYEE, Circuit Judge."
328 CASES ON CONSTITUTIONAL LAW.
The writ was accordingly issued and delivered to Cunningham,
who made the following return:
"COUNTY OF SAN JOAQUIN, State of California,
"SHERIFF'S OFFICE.
"To the honorable Circuit Court of the United States for the
Northern District of California:
"I hereby certify and return that before the coming to me of
the annexed writ of habeas corpus the said David Neagle was
committed to my custody, and is detained by me by virtue of a
warrant issued out of the justice's court of Stockton township,
State of California, county of San Joaquin, and by the indorse-
ment made upon said warrant. Copy of said warrant and indorse-
ment is annexed hereto and made a part of this return. Never-
theless, I have the body of the said David Neagle before the hon-
orable court, as I am in the said writ commanded.
"August 17, 1889. THOMAS CUNNINGHAM,
"Sheriff San Joaquin County, California."
Various pleadings and amended pleadings were made which do
not tend much to the elucidation of the matter before us. Cun-
ningham filed a demurrer to the petition for the writ of habeas
corpus, and Neagle filed a traverse to the return of the sheriff,
which was accompanied by exhibits, the substance of which will
be hereafter considered when the case comes to be examined upon
its facts.
The hearing in the Circuit Court was had before Circuit Judge
Sawyer and District Judge Sabin. The sheriff, Cunningham, was
represented by G. A. Johnson, Attorney-General of the State of
California, and other counsel. A large body of testimony, docu-
mentary and otherwise, was submitted to the court, on which,
after a full consideration of the subject, the court made the
following order:
"In the Matter of David Neagle, on habeas corpus.
"In the above-entitled matter, the court having heard the tes-
timony introduced on behalf of the petitioner, none having been
offered for the respondent, and also the arguments of the counsel
for petitioner and respondent, and it appearing to the court that
the allegations of the petitioner in his amended answer or traverse
to the return of the sheriff of San Joaquin County, respondent
herein, are true, and that the prisoner is in custody for an act
done in pursuance of a law of the United States, and in custody
IN RE NEAGLE. 329
in violation of the Constitution and laws of the United States, it
is therefore ordered that petitioner be, and he is hereby, discharged
from custody."
From that order an appeal was allowed which brought the case
to this court, acompanied by a voluminous record of all the
matters which were before the court on the hearing. . . .
MR. JUSTICE MILLER, after stating the case as above, delivered
*the opinion of the court.
If it be true, as stated in the order of the court discharging
the prisoner, that he was held "in custody for an act done in
pursuance of a law of the United States, and in custody in viola-
tion of the Constitution and laws of the United States," there
does not seem to be any doubt that, under the statute on that
subject, he was properly discharged by the Circuit Court. . . .
[Here follows a history of the events leading up to the death
of Terry.]
These are the material circumstances produced in evidence be-
fore the Circuit Court on the hearing of this habeas corpus case.
It is but a short sketch of a history which is given in over five
hundred pages in the record, but we think it is sufficient to enable
us to apply the law of the case to the question before us. With-
out a more minute discussion of this testimony, it produces upon
us the conviction of a settled purpose on the part of Terry and
his wife, amounting to a conspiracy, to murder Justice Field. And
we are quite sure that if Neagle had been merely a brother or a
friend of Judge Field, traveling with him, and aware of all the pre-
vious relations of Terry to the judge, as he was, of his bitter
animosity, his declared purpose to have revenge even to the point
of killing him, he would have been justified in what he did in
defense of Mr. Justice Field's life, and possibly of his own.
But such a justification would be a proper subject for consid-
eration on. a trial of the case for murder in the courts of the State
of California, and there exists no authority in the courts of the
United States to discharge the prisoner while held in custody by
the State authorities for this offense, unless there be found in aid
of the defense of the prisoner -some element of power and authority
asserted under the government of the United States.
This element is said to be found in the facts that Mr. Justice
Field, when attacked, was in the immediate discharge of his duty
as judge of the Circuit Courts of the United States within Cali-
fornia; that the assault upon him grew out of the animosity of
Terry and wife, arising out of the previous discharge of his duty
330 CASES ON CONSTITUTIONAL LAW.
as circuit justice in the case for which they were committed for
contempt of court; and that the deputy marshal of the United
States, who killed Terry in defense of Field's life, was charged
with a duty under the law of the United States to protect Field
from 'the violence which Terry was inflicting, and which was in-
tended to lead to Field's death.
To the inquiry whether this proposition is sustained by law and
the facts which we have recited, we now address ourselves. . . .
We have no doubt that Mr. Justice Field when attacked by
Terry was engaged in the discharge of his duties as Circuit Justice
of the Ninth Circuit, and was entitled to all the protection under
those circumstances which the law could give him.
It is urged, however, that there exists no statute authorizing
any such protection as that which. Neagle was instructed to give
Judge Field in the present case, and indeed no protection what-
ever against a vindictive or malicious assault growing out of the
faithful discharge of his official duties, and that the language
of section 753 of the Revised Statutes, that the party seeking the
benefit of the writ of habeas corpus must in this connection show
that he is "in custody for an act done or omitted in pursuance
of a law of the United Sates," makes it necessary that upon this
occasion it should be shown that the act for which Neagle is im-
prisoned was done by virtue of an act of Congress. It is not sup-
posed that any special act of Congress exists which authorizes the
marshals or deputy marshals of the United States in express terms
to accompany the judges of the Supreme Court through their
circuits, and act as a body-guard to them, to defend them against
malicious assaults against their persons. But we are of opinion
that this view of the statute is an unwarranted restriction of the
meaning of a law designed to extend in a liberal manner the bene-
fit of the writ of habeas corpus to persons imprisoned for the
performance of their duty. And we are satisfied that if it was the
duty of Neagle, under the circumstances, a duty which could only
arise under the laws of the United States, to defend Mr. Justice
Field from a murderous attack upon him, he brings himself within
the meaning of the section we have recited. This view of the
subject is confirmed by the alternative provision, that he must be
in custody "for an act done or omitted in pursuance of a law of
the United States or of an order, process, or decree of a court
or judge thereof, or is in custody in violation of the Constitution
or of a law or treaty of the United States."
In the view we take of the Constitution of the United States,
any obligation fairly and properly inferrible from that instru-
IN RE NEAGLE. 331
ment, or any duty of the marshal to be derived from the general
scope of his duties under the laws of the United States, is "a law"
within the meaning of this phrase. It would be t a great reproach
to the system of government of the United States, declared to be
within its sphere sovereign and supreme, if there is to be found
within the domain of its powers no means of protecting the judges,
in the conscientious and faithful discharge of their duties, from
the malice and hatred of those upon whom their judgments may
operate unfavorably.
It has in modern times become apparent that the physical health
of the community is more efficiently promoted by hygienic and
preventive means, than by the skill which is applied to the cure
of disease after it has become fully developed. So also the law,
which is intended to prevent crime, in its general spread among
the community, by regulations, police organization, and otherwise,
which are adapted for the protection of the lives and property of
citizens, for the dispersion of mobs, for the arrest of thieves and
assassins, for the watch which is kept over the community, as well
as over this class of people, is more efficient than punishment
of crimes after they have been committed.
If a person in the situation of Judge Field could have no other
guarantee of his personal safety, while engaged in the conscien-
tious discharge of a disagreeable duty, than the fact that if he
was murdered his murderer would be subject to the laws of a
State and by those laws could be punished, the security would be
very insufficient. The plan which Terry and wife had in mind
of insulting him and assaulting him and drawing him into a de-
fensive physical contest, in the course of which they would slay
him, shows the little value of such remedies. We do not believe
that the government of the United States is thus inefficient, or
that its Constitution and laws have left the high officers of the
government so defenseless and unprotected. . . . [Here are
given citations from ex parte Siebold, 100 U. S., 371, 394, and
from Tennessee v. Davis, 100 U. S., 257, 262.]
Where, then, are we to look for the protection which we have
shown Judge Field was entitled to when engaged in the discharge
of his official duties? Not to the courts of the United States;
because, as has been more than once said in this court, in the
division of the powers of government between the three great de-
partments, executive, legislative and judicial, the judicial is the
weakest for the purposes of self-protection and for the enforce-
ment of the powers which it exercises. The ministerial officers
through whom its commands must be executed are marshals of
332 CASES ON CONSTITUTIONAL LAW.
the United States, and belong emphatically to the executive de-
partment of the government. They are appointed by the Presi-
dent, with the a4vice and consent of the Senate. They are remov-
able from office at his pleasure. They are subjected by act of
Congress to the supervision and control of the Department of
Justice, in the hands of one of the cabinet officers of the Presi-
dent, and their compensation is provided by acts of Congress.
The same may be said of the district attorneys of the United
States, who prosecute and defend the claims of the government in
the courts.
The legislative branch of the government can only protect
the judicial officers by the enactment of laws for that purpose,
and the argument we are now combating assumes that no such
law has been passed by Congress.
If we turn to the executive department of the government, we
find a very different condition of affairs. The Constitution, sec-
tion 3, Article 2, declares that the President "shall take care that
the laws be faithfully executed," and he is provided with the means
of fulfilling this obligation by his authority to commission all
the officers of the United States, and, by and with the advice and
consent of the Senate, to appoint the most important of them
and to fill vacancies. He is declared to be Commander-in-chief
of the army and navy of the United States. The duties which are
thus imposed upon him he is further enabled to perform by the
recognition in the Constitution, and the creation by acts of Con-
gress, of executive departments, which have varied in number
from four to five to seven or eight, the heads of which are famil-
iarly called cabinet ministers. These aid him in the performance
of the great duties of his office, and represent him in a thousand
acts to which it can hardly be supposed his personal attention is
called, and thus he is enabled to fulfill the duty of his great de-
partment, expressed in the phrase that "he shall take care that
the laws be faithfully executed."
Is this duty limited to the enforcement of acts of Congress or
of treaties of the United States according to their express terms,
or does it include the rights, duties and obligations growing out
of the Constitution itself, our international relations, and all the
protection implied by the nature of the government under the
Constitution?
One of the most remarkable episodes in the history of our for-
eign relations, and which has become an attractive historical inci-
dent,is the case of Martin Koszta,a native of Hungary, who, though
not fully a naturalized citizen of the United States, had in due form
of law made his declaration of intention to become a citizen. While
IN RE NEAGLE. 333
in Smyrna he was seized by command of the Austrian consul-
general at that place, and carried on board the Hussar, an Aus-
trian vessel, where he was held in close confinement. Captain*
Ingraham, in command of the American sloop-of-war, St. Louis,
arriving in port at that critical period, and ascertaining that
Koszta had with him his naturalization papers, demanded his sur-
render to him, and was compelled to train his guns upon the Aus-
trian vessel before his demands were complied with. It was,
however, to prevent bloodshed, agreed that Koszta should be
placed in the hands of the French consul subject to the result of
diplomatic negotiations between Austria and the United States.
The celebrated correspondence between Mr. Marcy, Secretary of
State, and Chevalier Hiilsemann, the Austrian minister at Wash-
ington, which arose out of this affair and resulted in the release
and restoration to liberty of Koszta, attracted a great deal of
public attention, and the position assumed by Mr. Marcy met the
approval of the country and of Congress, who voted a gold medal
to Captain Ingraham for his conduct in the affair. Upon what
act of Congress then existing can any one lay his finger in sup-
port of the action of our government in this matter?
So, if the President or the Postmaster-General is advised that
the mails of the United States, possibly carrying treasure, are lia-
ble to be robbed and the mail carriers assaulted and murdered in
any particular region of country, who can doubt the authority of
the President or of one of the executive departments under him
to make an order for the protection of the mail and of the per-
sons and lives of its carriers, by doing exactly what was done in
the case of Mr. Justice Field, namely, providing a sufficient guard,
whether it be by soldiers of the army or by marshals of the United
States, with a posse comitatus properly armed and equipped, to
secure the safe performance of the duty of carrying the mail
wherever it may be intended to go?
The United States is the owner of millions of acres of valuable
public land, and has been the owner of much more which it has
sold. Some of these lands owe a large part of their value to the
forests which grow upon them. These forests are liable to depre-
dations by people living in the neighborhood, known as timber
thieves, who make a living by cutting and selling such timber,
and who are trespassers. But until quite recently, even if there
be one now, there was no statute authorizing any preventive
measures for the protection of this valuable public property. Has
the President no authority to place guards upon the public terri-
tory to protect its timber? No authority to seize the timber when
334 CASES ON CONSTITUTIONAL LAW.
cut and found upon the ground? Has he no power to take any
measures to protect this vast domain? Fortunately we find this
question answered by this court in the case of Wells v. Nickles,
104 U. S., 444. That was a case in which a class of men appointed
hy local land officers, under instructions from the Secretary of
the Interior, having found a large quantity of this timber cut
down from the forests of the United States and lying where it
was cut, seized it. The question of the title to this property com-
ing in controversy between Wells and Nickles, it became essential
to inquire into the authority of these timber agents of the govern-
ment thus to seize the timber cut by trespassers on its lands. The
court said: "The effort we have made to ascertain and fix the
authority of these timber agents by any positive provision of law
has been unsuccessful." But the court, notwithstanding there was
no special statute for it, held that the Department of the Interior,
acting under the idea of protecting from depredation timber on
the lands of the government, had gradually come to assert the
right to seize what is cut and taken away from them wherever it
can be traced, and in aid of this the registers and receivers of the
Land Office had, by instructions from the Secretary of the Inte-
rior, been constituted agents of the United States for these pur-
poses, with power to appoint special agents under themselves. And
the court upheld the authority of the Secretary of the Interior
to make these rules and regulations for the protection of the public
lands.
One of the cases in this court in which this question was pre-
sented in the most imposing form is that of United States v. San
Jacinto Tin Company, 125 U. S., 273, 279, 280. In this case, a
suit was brought in the name of the United States, by order of
the Attorney General, to set aside a patent which had been issued
for a large body of valuable land, on the ground that it was ob-
tained from the government by fraud and deceit practiced upon
its officers. A preliminary question was raised by counsel for the
defendant, which was earnestly insisted upon, as to the right of
the Attorney General or any other officer of the government to
institute such a suit in the absence of any act of Congress author-
izing it. It was conceded that there was no express authority
given to the Attorney General to institute that particular suit or
any suit of that class. The question was one of very great interest,
and was very ably argued both in the court below and in this
court. The response of this court to that suggestion conceded
that in the acts of Congress establishing the Department of Jus-
tice and defining the duties of the Attorney General there was
IN RE NEAGLE. 335
no such express authority, and it was said that there was also no
express authority to him to bring suits against debtors of the
government upon bonds, or to begin criminal prosecutions, or to
institute criminal proceedings in any of the cases in which the
United States was plaintiff, yet he was invested with the gen-
eral superintendence of all such suits. It was further said: "If
the United States, in any particular case, has a just cause for call-
ing upon the judiciary of the country, in any of its courts, for
relief by setting aside or annulling any of its contracts, its obli-
gations, or its most solemn instruments,, the question of the appeal
to the judicial tribunals of the country must primarily be decided
by the Attorney General of the United States. That such a power
should exist somewhere, and that the United States should not
be more helpless in relieving itself of frauds, impostures, and de-
ceptions, than the private individual is hardly open to argument.
. . .. There must, then, be an officer or officers of the govern-
ment to determine when the United States shall sue, to decide
for what it shall sue, and to be responsible that such suits shall be
brought in appropriate cases. The attorneys of the United States
in every judicial district are officers of this character, and they
are by statute under the immediate supervision and control of the
Attorney-General. How, then, can it be argued that if the United
States has been deceived, entrapped, or defrauded, into the mak-
ing, under the forms of law, of an instrument which injuriously
affects its rights of property, or other rights, it cannot bring a
suit to avoid the effect of such instrument, thus fraudulently
obtained, without a special act of Congress in each case, or with-
out some special authority applicable to this class of cases?" The
same question was raised in the earlier case of United States v.
Hughes, 11 How., 552, and decided the same way.
We cannot doubt the power of the President to take measures
for the protection of a judge of one of the courts of the United
States, who, while in the discharge of the duties of his office, is
threatened with a personal attack which may probably result in
his death, and we think it clear that where this protection is to be.
afforded through the civil power, the Department of Justice is the
proper one to set in motion the necessary means of protection.
The correspondence already recited in this opinion between the
marshal of the Northern District of California, and the Attorney-
General, and the district attorney of the United States for that
district, although prescribing no very specific mode of affording
this protection by the Attorney-General, is sufficient, we think,
to warrant the marshal in taking the steps which he did take, in
336 CASES ON CONSTITUTIONAL LAW.
making the provision which he did make, for the protection and
defense of Mr. Justice Field.
But there is positive law investing the marshals and their depu-
ties with powers which not only justify what Marshal Neagle did
in this matter, but which imposed it upon him as a duty. In
chapter fourteen of the Revised Statutes of the United States,
which is devoted to the appointment and duties of the district
attorneys, marshals, and clerks of the courts of the United States,
section 788 declares:
"The marshals and their deputies shall have, in each State, the
same powers, in executing the laws of the United States, as the
sheriffs and their deputies in such State may have, by law, in
executing the laws thereof."
If therefore, a sheriff of the State of California was authorized
to do in regard to the laws of California what Neagle did, that is,
if he is authorized to keep the peace, to protect a judge from
assault and murder, then Neagle was authorized to do the same
thing in reference to the laws of the United States. . . .
That there is a peace of the United States; that a man assaulting
a judge of the United States while in the discharge of his duties
violates that peace; that in such case the marshal of the United
States stands in the same relation to the peace of the United States
which the sheriff of the county does to the peace of the State of
California; are questions too clear to need argument to prove
them. That it would be the duty of a sheriff, if one had
been present at this assault by Terry upon Judge Field,
to prevent this breach of the peace, to prevent this
assault, to prevent the murder which was contemplated by it, can-
not be doubted. And if, in performing this duty, it became nec-
essary for the protection of Judge Field, or of himself, to kill
Terry, in a case where, like this, it was evidently a question of
the choice of who should be killed, the assailant and violater of
the law and disturber of the peace, or the unoffending man who
was in his power, there can be no question of the authority of the
sheriff to have killed Terry. So the marshal of the United States,
charged with the duty of protecting and guarding the judge of
the United States court against -this special assault upon his per-
son and his life, being present at the critical moment, when prompt
action was necessary, found it to be his duty, a duty which he had
no liberty to refuse to perform, to take the steps which resulted
in Terry's death. This duty was imposed on him by the section
of the Revised Statutes which we have cited, in connection with
the powers conferred by the State of California upon its peace
IN RE NEAGLE. 337
officers, which become, by this statute, in proper cases, transferred
as duties to the marshals of the United States. . . .
The result at which we have arrived upon this examination is,
that in the protection of the person and the life of Mr. Justice
Field while in the discharge of his official duties, Neagle was au-
thorized to resist the attack of Terry upon him; that Neagle was
correct in the belief that without prompt action on his part the
assault of Terry upon the judge would have ended in the death
of the latter; that such being his well-founded belief, he was jus-
tified in taking the life of Terry, as the only means of preventing
the death of the man who was intended -to be his victim; that in
taking the life of Terry, under the circumstances, he was acting
under the authority of the law of the United States, and was jus-
tified in so doing; and that he is not liable to answer in the
courts of California on account of his part in that transaction.
We therefore affirm the judgment of the Circuit Court authoriz-
ing his discharge from the custody of the sheriff of San Joaquin
County.
[MR. JUSTICE LAMAR delivered a dissenting opinion in which
CHIEF JUSTICE FULLER concurred.]
NOTE. The recent case of Parsons v. United States, 167 U. S.,
324, (1897), discusses the President's power of removal, but does
not determine the constitutional question involved. The opinion
is valuable for its statement of the legislative, executive, and judi-
cial history of the question.
VIII. WAR.-MARTIAL LAW.
MAKTIN v. MOTT.
12 Wheaton, 19. Decided 1827.
The case is stated in the opinion of the court. . . .
STORY, J., delivered the opinion of the court.
This is a writ of error to the judgment of the court for the trial
of impeachments and the correction of errors of the State of New
York, being the highest court of that State, and is brought here
in virtue of the 25th section of the Judiciary Act of 1789, 1 c. 20.
The original* action was a replevin for certain goods and chattels,
to which the original defendant put in an avowry, and to that
avowry there was a demurrer, assigning nineteen distinct and
special causes of demurrer. Upon a joinder in demurrer, the su-
preme court of the State gave judgment against the avowant; and
that judgment was affirmed by the high court to which the pres-
ent writ of error is addressed.
The avowry, in substance, asserts a justification of the taking
of the goods and chattels to satisfy a fine and forfeiture imposed
upon the original plaintiff by a court-martial, for a failure to enter
the service of the United States as a militiaman, when thereto
required by the President of the United States, in pursuance of
the act of the 28th of February,, 1795. It is argued that this
avowry is defective, both in substance and form; and it will be
our business to discuss the most material of these objections; and
as to others, of which no particular notice is taken, it is to be
understood that the court are of opinion that they are either
unfounded in fact or in law, and do not require any separate
examination.
For the more clear and exact consideration of this subject, it
may be necessary to refer to the constitution of the United States,
and some of the provisions of the act of 1795. The constitution
declares that congress shall have power "to provide for calling
forth the militia, to execute the laws of the Union, suppress in-
surrections, and repel invasions;" and also "to provide for organ-
1 1 Stats, at Large, 85.
338
MARTIN v. MOTT. 339
izing, arming, and disciplining the militia, and for governing such.
part of them as may be employed in the service of the United
States." In pursuance of this authority, the act of 1795 has pro-
vided, "that whenever the United States shall be invaded, or be
in imminent danger of invasion from any foreign nation or Indian
tribe, it shall be lawful for the President of the United States to
call forth such number of the militia of the State or States most
convenient to the place of danger, or scene of action, as he may
judge necessary to repel such invasion, and to issue his order for
that purpose to such officer or officers of the militia as he shall
think proper." And like provisions are made for the other cases
stated in the constitution. It has not been denied here that the
act of 1795 is within the constitutional authority of congress, or
that congress may not lawfully provide for cases of imminent
danger of invasion, as well as for cases where an invasion has actu-
ally taken place. In our opinion there is no ground for a doubt
on this point, even if it had been relied on, for the power to pro-
vide for repelling invasions includes the power to provide against
the attempt and danger of invasion, as the necessary and proper
means to effectuate the object. One of the best means to repel
invasion is to provide the requisite force for action before the
invader himself has reached the soil.
The power thus confided by congress to the President, is, doubt-
less of a very high and delicate nature. A free people are naturally
jealous of the exercise of military power; and the power to call
the militia into actual service is certainly felt to be one of no
ordinary magnitude. But it is not a power which can be executed
without a correspondent responsibility. It is, in its terms, a
limited power, confined to cases of actual invasion, or of imminent
danger of invasion. If it be a limited power, the question arises,
by whom is the exigency to be judged of and decided? Is the
President the sole and exclusive judge whether the exigency has
arisen, or is it to be considered as an open question, upon which
every officer to whom the orders of the President are addressed,
may decide for himself, and equally open to be contested by every
militia-man who shall refuse to obey the orders of the President?
We are all of the opinion that the authority to decide whether
the exigency has arisen belongs exclusively to the President, and
that his decision is conclusive upon all other persons. We think
that this construction necessarily results from the nature of the
power itself, and from the manifest object contemplated by the
act of congress. The power itself is to be exercised upon sudden
emergencies, upon great occasions of state, and under circum-
340 CASES ON CONSTITUTIONAL LAW.
stances which may be vital to the existence of the Union. A
prompt and unhesitating obedience to orders is indispensable to
the complete attainment of the object. The service is a mili-
tary service, and the command of a military nature; and in such
cases, every delay, and every obstacle to an efficient and imme-
diate compliance, necessarily tend to jeopard the public interests.
While subordinate officers or soldiers are pausing to consider
whether they ought to obey, or are scrupulously weighing the
evidence of the facts upon which the commander-in-chief exer-
cises the right to demand their services, the hostile enterprise may
be accomplished without the means of resistance. If "the power
of regulating the militia, and of commanding its services in times
of insurrection and invasion, are (as it has been emphatically said
they are) natural incidents to the duties of superintending the
common defense, and of watching over the internal peace of the
confederacy," 1 these powers must be so construed as to the modes
of their exercise as not to defeat the great end in view. If a
superior officer has a right to contest the orders of the President
upon his own doubts as to the exigency having arisen, it must be
equally the right of every inferior officer and soldier; and any
act done by any person in furtherance of such orders would sub-
ject him to responsibility in a civil suit, in which his defense
must finally rest upon his ability to establish the facts by com-
petent proofs. Such a course would be subversive of all discipline,
and expose the best-disposed officers to the chances of ruinous
litigation. Besides, in many instances, the evidence upon which
the President might decide that there is imminent danger of in-
vasion, might be of a nature not constituting strict technical proof,
or the disclosure of the evidence might reveal important secrets of
state, which the public interest, and even safety, might imperi-
ously demand to be kept in concealment.
If we look at the language of the act of 1795, every con-
clusion drawn from the nature of the power itself is strongly
fortified. The words are, "whenever the United States shall be
invaded, or be in imminent danger of invasion, &c., it shall be
lawful for the President, &c., to call forth such number of the
militia, &c., as he may judge necessary to repel such invasion."
The power itself is confided to the Executive of the Union, to
him who is, by the constitution, "the commander-in-chief of the
militia, when called into the actual service of the United States,"
whose duty it is to "take care that the laws be faithfully executed,"
i The Federalist, No. 29.
MARTIN v. MOTT. 341
and whose responsibility for an honest discharge of his official
obligations is secured by the highest sanctions. He is neces-
sarily constituted the judge of the existence of the exigency in
the first instance, and is bound to act according to his belief of
the facts. If he does so act, and decides to call forth the militia,
his orders for this purpose are in strict conformity with the provi-
sions of the law; and it would seem to follow as a necessary con-
sequence that every act done by a subordinate officer, in obedi-
ence to such orders, is equally justifiable. The law contemplates
that, under such circumstances, orders shall be given to carry the
power into effect; and it cannot therefore be a correct inference
that any other person has a just right* to disobey them. The law
does not provide for any appeal from the judgment of the Presi-
dent, or for any right in subordinate officers to review his deci-
sion, and in effect defeat it. Whenever a statute gives a discre-
tionary power to any person, to be exercised by him upon his
own opinion of certain facts, it is a sound rule of construction,
that the statute constitutes him the sole and exclusive judge of
the existence of those facts. And in the present case, we are all
of opinion that such is the true construction of the act of 1795. It
is no answer that such a power may be abused, for there is no
power which is not susceptible of abuse. The. remedy for this,
as well as for all other official misconduct, if it should occur, is to
be found in the constitution itself. In a free government, the
danger must be remote, since in addition to the high qualities
which the Executive must be presumed to possess, of public vir-
tue and honest devotion to the public interests, the frequency of
elections, and the watchfulness of the representatives of the na-
tion, carry with them all the checks which can be useful to guard
against usurpation or wanton tyranny. . . . [Here follows
a reference to the New York case of Vanderheyden *v. Young, 11
Johns. Rep., 150.]
But it is now contended, as it was contended in that case, that
notwithstanding the judgment of the President is conclusive as to
the existence of the exigency, and may be given in evidence as
conclusive proof thereof, yet that the avowry is fatally defective,
because it omits to aver that the fact did exist. The argu-
ment is that the power confided to the President is a limited power,
and can be exercised only in the cases pointed out in the statute,
and therefore it is necessary to aver the facts which bring the
exercise within the purview of the statute. In short, the same
principles are sought to be applied to the delegation and exercise
of this power intrusted to the Executive of the nation for great
349 CASES ON CONSTITUTIONAL LAW.
political purposes, as might be applied to the humblest officer
in the government, acting upon the most narrow and special au-
thority. It is the opinion of the court, that this objection can
not be maintained. When the President exercises an authority
confided to him by law, the presumption is, that it is exercised in
pursuance of law. Every public officer is presumed to act in
obedience to his duty, until the contrary is shown; and a fortiori,
this presumption ought to be favorably applied to the chief mag-
istrate of the Union. It is not necessary to aver, that the act
which he may rightfully do, was so done. If the fact of the exist-
ence of the exigency were averred, it would be traversable, and of
course might be passed upon by a jury; and thus the legality
of the orders of the President would depend, not on his own judg-
ment of the facts, but upon the finding of those facts upon the
proofs submitted to a jury. This view of the objection is pre-
cisely the same which was acted upon by the supreme court of
JSTew York, in the case already referred to, and, in the opinion of
this court, with entire legal correctness. . . .
Upon the whole, it is the opinion of the court that the judg-
ment of the court for the trial of impeachments and the correc-
tion of errors ought to be reversed; and that the cause be re-
manded to the same court, with directions to cause a judgment
to be entered upon the pleadings in favor of the avowant.
THE PEIZE CASES.
THE BRIG AMY WAEWICK. THE SCHOOXER CREN-
SHAW. THE SCHOONER BRILLIAXTE. THE
BARK HIAWATHA.
2 Black, 635. Decided 1863.
[The facts are sufficiently stated in the opinion of the court.]
MR. JUSTICE GRIER. There are certain propositions of law
which must necessarily affect the ultimate decision of these cases,
and many others, which it will be proper to discuss and decide
before we notice the special facts peculiar to each.
They are, 1st. Had the President a right to institute a block-
ade of ports in possession of persons in armed rebellion against
THE PRIZE CASES. 343
the government, on the principles of international law, as known
and acknowledged among civilized States?
2d. Was the property of persons domiciled or residing within
those States a proper subject of capture on the sea as "enemies'
property" ?
I. Neutrals have a right to challenge the existence, of a block-
ade de facto, and also the authority of the party exercising the
right to institute it. They have a right to enter the ports of a
friendly nation for the purposes of trade and commerce, but are
bound to recognize the rights of a belligerent engaged in actual
war, to use this mode of coercion, for the purpose of subduing
the enemy.
That a blockade de facto actually existed, and was formally de-
clared and notified by the President on the 27th and 30th of April,
1861, is an admitted fact in these cases.
That the President, as the Executive Chief of the Government
and Commander-in-Chief of the Army and Navy, was the proper
person to make such notification, has not been, and cannot be
disputed.
The right of prize and capture has its origin in the jus belli, and
is governed and adjudged under the law of nations. To legiti-
mate the capture of a neutral vessel or property on the high seas,
a war must exist de facto, and the neutral must have a knowledge
or notice of the intention of one of the parties belligerent to use
this mode of coercion against a port, city, or territory, In posses-
sion of the other.
Let us inquire whether, at the time this blockade was instituted,
a state of war existed which would justify a resort to these means
of subduing the hostile force.
War has been well defined to be, "That state in which a nation
prosecutes its right by force."
The parties belligerent in a public war are independent nations.
But it is not necessary to constitute war, that both parties should
be acknowledged as independent nations or sovereign States. A
war may exist where one of the belligerents claims sovereign rights
as against the other.
Insurrection against a government may or may not culminate
in an organized rebellion, but a civil war always begins by in-
surrection against the lawful authority of the Government. A
civil war is never solemnly declared; it becomes such by its acci-
dents, the number, power, and organization of the persons who
originate and carry it on. When the party in rebellion occupy
and hold in a hostile manner a certain portion of territory; have
344 CASES ON CONSTITUTIONAL LAW.
declared their independence; have cast off their allegiance; have
organized armies; have commenced hostilities against their for-
mer sovereign, the world acknowledges them as belligerents, and
the contest a war. They claim to be in arms to establish their
liberty and independence, in order to become a sovereign State,
while the sovereign party treats them as insurgents and rebels who
owe allegiance, and who should be punished with death for their
treason.
The laws of war, as established among nations, have their foun-
dation in reason, and all tend to mitigate the cruelties and misery
produced by the scourge of war. Hence the parties to a civil
war usually concede to each other belligerent rights. They ex-
change prisoners, and adopt the other courtesies and rules com-
mon to public or national wars.
"A civil war," says Vattel, "breaks the bands of society and
government, or at least suspends their force and effect; it pro-
duces in the nation two independent parties, who consider each
other as enemies, and acknowledge no common judge. Those two
parties, therefore, must necessarily be considered as constituting,
at least for a time, two separate bodies, two distinct societies.
Having no common superior to judge between them, they stand
in precisely the same predicament as two nations who engage in
a contest and have recourse to arms.
"This being the case, it is very evident that the common laws
of war those maxims of humanity, moderation, and honor
ought to be observed by both parties in every civil war. Should
the sovereign conceive he has a right to hang up his prisoners
as rebels, the opposite party will make reprisals, &c., &c.; the war
will become cruel, horrible, and every day more destructive to the
nation."
As a civil war is never publicly proclaimed, eo nomine, against
insurgents, its actual existence is a fact in our domes-tic history
which the Court is bound to notice and know.
The true test of its existence, as found in the writings of the
sages of the common law, may be thus summarily stated: "When
the regular course of justice is interrupted by revolt, rebellion, or
insurrection, so that the Courts of Justice cannot be kept open,
civil war exists and hostilities may be prosecuted on the same foot-
ing as if those opposing the Government were foreign enemies
invading the land."
By the Constitution, Congress alone has the power to declare
a national or foreign war. It cannot declare war against a State,
or any number of States, by virtue of any clause in the Consti-
THE PRIZE CASES. 345
tution. The Constitution confers on the President the whole
Executive power. He is bound to take care that the laws be
faithfully executed. He is 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 has
no power to initiate or declare a war either against a foreign
nation or a domestic State. But by the Acts of Congress of Febru-
ary 28, 1795, and 3d of March, 1807, he is authorized to call out
the militia and use the military and naval forces of the United
States in case of invasion by foreign nations, and to suppress
insurrection against the government of a State or of the United
States.
If a war be made by invasion of a foreign nation, the President
is not only authorized but bound to resist force by force. He does
not initiate the war, but is bound to accept the challenge without
waiting for any special legislative authority. And whether the
hostile party be a foreign invader, or States organized in rebel-
lion, it is none the less a war, although the declaration of it be
"unilateral." Lord Stowell (1 Dodson, 247) observes, "It is not
the less a war on that account, for war may exist without a decla-
ration on either side. It is so laid down by the best writers on
the law of nations. A declaration of war by one country only,
is not a mere challenge to be accepted or refused at pleasure by
the other."
The battles of Palo Alto and Resaea de la Palma had been
fought before the passage of the Act of Congress of May 13, 1846,
which recognized "a state of war as existing by the act of the
Republic of Mexico." This act not only provided for the future
prosecution of the war, but was itself a vindication and ratifica-
tion of the Act of the President in accepting the challenge with-
out a previous formal declaration of war by Congress.
This greatest of civil wars was not gradually developed by pop-
ular commotion, tumultuous assemblies, or local unorganized in-
surrections. However long may have been its previous concep-
tion, it nevertheless sprung forth suddenly from the parent brain,
a Minerva in the full panoply of war. The President was bound
to meet it in the shape it presented itself, without waiting for
Congress to baptize it with a name; and no name given to it by
him or them could change the fact.
It is not the less a civil war, with belligerent parties in hostile
array, because it may be called an "insurrection" by one side, and
the insurgents be considered as rebels or traitors. It is not neces-
sary that the independence of the revolted province or State be
346 CASES ON CONSTITUTIONAL LAW.
acknowledged in order to constitute it a party belligerent in a war
according to the law of nations. Foreign nations acknowledge
it as war by a declaration of neutrality. The condition of neutral-
ity cannot exist unless there be two belli ererent parties. In the
case of the Santissima Trinidad (7 Wheaton, 337), this court say:
"The Government of the United States has recognized the exist-
ence of a civil war between Spain and her colonies, and has avowed
her determination to remain neutral between the parties. Each
party is therefore deemed by us a belligerent nation, having, so
far as concerns us, the sovereign rights of war." (See also 3 Binn.,
252.)
As soon as the news of the attack on Fort Sumter, and the or-
ganization of a government by the seceding States, assuming to
act as belligerents, could become known in Europe, to wit, on the
13th of May, 1861, the Queen of England issued her proclamation
of neutrality, "recognizing hostilities as existing between the Gov-
ernment of the United States of America and certain States styl-
ing themselves the Confederate States of America." This was
immediately followed by similar declarations or silent acquies-
cence by other nations.
After such an official recognition by the sovereign, a citizen
of a foreign State is estopped to deny the existence of a war with
all its consequences as regards neutrals. They cannot ask a Court
to affect a technical ignorance of the existence of a war, which all
the world acknowledges to be the greatest civil war known in the
history of the human race, and thus cripple the arm of the Gov-
ernment and paralyze its power by subtle definitions and ingeni-
ous sophisms.
The law of nations is also called the law of nature; it is founded
on the common consent as well as the common sense of the world.
It contains no such anomalous doctrine as that which this Court
are now for the first time desired to pronounce, to wit: That in-
surgents who have risen in rebellion against their sovereign, ex-
pelled her courts, established a revolutionary government, organ-
ized armies, and commenced hostilities, are not enemies because
they are traitors; and a war levied on the government by traitors,
in order to dismember and destroy it, is not a war because it is
an "insurrection."
Whether the President, in fulfilling his duties as Commander-
in-chief in suppressing an insurrection, has met with such armed
hostile resistance, and a civil war of such alarming proportions,
as will compel him to accord to them the character of belligerents,
is a question to be decided by him, and this Court must be gov-
THE PRIZE CASES. 347
erned by the decisions and acts of the political department of the
Government to which this power was intrusted. "He must deter-
mine what degree of force the crisis demands." The proclamation
of blockade is itself official and conclusive evidence to the Court
that a state of war existed which demanded and authorized a re-
course to such a measure, under the circumstances peculiar to the
case.
The correspondence of Lord Lyons with the Secretary of State
admits the fact and concludes the question.
If it were necessary to the technical existence of a war, that it
should have a legislative sanction, we find it in almost every act
passed at the extraordinary session of the Legislature of 1861,
which was wholly employed in enacting laws to enable the Gov-
ernment to prosecute the war with vigor and efficiency. And
finally, in 1861, we find Congress "ex majore cautela" and in an-
ticipation of such astute objections, passing an act "approving,
legalizing, and making valid all the acts, proclamations, and orders
of the President, &c., as if they had been issued and done under
the previous express authority and direction of the Congress of
the United States."
Without admitting that such an act was necessary under the
circumstances, it is plain that if the President had in any manner
assumed powers which it was necessary should have the authority
or sanction of Congress, that on the well known principle of law,
"omnis raiiliabitio retrotrahitur et mandato equiparatur," this
ratification has operated to perfectly cure the defect. In the case
of Brown vs. United States (8 Or., 131, 132, 133), Mr. Justice
Story treats of this subject, and cites numerous authorities to
which we may refer to prove this position, and concludes, "I am
perfectly satisfied that no subject can commence hostilities or
capture property of an enemy, when the sovereign has prohibited
it. But suppose he did, I would ask if the sovereign may not
ratify his proceedings, and thus by a retroactive operation give
validity to them?"
Although Mr. Justice Story dissented from the majority of the
Court on the whole case, the doctrine stated by him on this point
is correct and fully substantiated by authority.
The objection made to this act of ratification, that it is ex post
facto, and therefore unconstitutional and void, might possibly
have some weight on the trial of an indictment in a criminal
Court. But precedents from that source cannot be received as
authoritative in a tribunal administering public and international
law.
348 CASES ON CONSTITUTIONAL LAW.
On this first question therefore we are of the opinion that the
President had a right, jure belli, to institute a blockade of ports
in possession of the States in rebellion, which neutrals are bound
to regard.
II. We come now to the consideration of the second question.
What is included in the term "enemies' property"?
Is the property of all persons residing within the territory of
the States now in rebellion, captured on the high seas, to be
treated as "enemies' property" whether the owner be in arms
against the Government or not?
The right of one belligerent not only to coerce the other by
direct force, but also to cripple his resources by the seizure or de-
struction of his property, is a necessary result of a state of war.
Money and wealth, the products of agriculture and commerce, are
said to be the sinews of war, and as necessary in its conduct as
numbers and physical force. Hence it is, that the laws of war
recognize the right of a belligerent to cut these sinews of the
power of the enemy, by capturing his property on the high seas.
The appellants contend that the term "enemy" is properly ap-
plicable to those only who are subjects or citizens of a foreign
State at war with our own. They quote from the pages of the
common law, which say, "that persons who wage war against the
King may be of two kinds, subjects or citizens. The former are
not proper enemies, but rebels and traitors; the latter are those
that come properly under the name of enemies."
They insist, moreover, that the President himself, in his procla-
mation, admits that great numbers of the persons residing within
the territories in possession of the insurgent government are loyal
in their feelings, and forced by compulsion and the violence of
the rebellious and revolutionary party and its "de facto govern-
ment" to submit to their laws and assist in their scheme of revolu-
tion; that the acts of the usurping government cannot legally
sever the bond of their allegiance; they have, therefore, a co-rela-
tive right to claim the protection of the government for their per-
sons and property, and to be treated as loyal citizens, till legally
convicted of having renounced their allegiance and made war
against the Government by treasonably resisting its laws.
They contend, also, that insurrection is the act of individuals
and not of a government or sovereignty; that the individuals en-
gaged are subjects of law. That confiscation of their property
can be effected only under a municipal law. That by the law of
the land such confiscation cannot take place without the convic-
tion of the owner of some offense, and finally that the secession
THE PRIZE CASES. 349
ordinances are nullities and ineffectual to release any citizen from
his allegiance to the national Government, and consequently that
the Constitution and laws of the United States are still operative
over persons in all the States for punishment as well as protection.
This argument rests on the assumption of two propositions,
each of which is without foundation on the established law of
nations. It assumes that where a civil war exists, the party bellig-
erent claiming to be sovereign cannot, for some unknown reason,
exercise the rights of belligerents, although the revolutionary
party may. Being sovereign, he can exercise only sovereign rights
over the other party. The insurgent may be killed on the battle-
field or by the executioner; his property on land may be confis-
cated under the municipal law; but the commerce on the ocean,
which supplies the rebels with means to support the war, cannot
be made the subject of capture under the laws of war, because it
is "unconstitutional!!!" Now, it is a proposition never doubted,
that the belligerent party who claims to be sovereign may exercise
both belligerent and sovereign rights, (see 4 dr., 272). Treating
the other party as a belligerent and using only the milder modes
of coercion which the law of nations has introduced to mitigate
the rigors of war, cannot be a subject of complaint by the party to
whom it is accorded as a grace or granted as a necessity. We
have shown that a civil war such as that now waged between the
Northern and Southern States is properly conducted according to
the humane regulations of public law as regards capture on the
ocean.
Under the very peculiar Constitution of this Government, al-
though the citizens owe supreme allegiance to the Federal Gov-
ernment, they owe also a qualified allegiance to the State in which
they are domiciled. Their persons and property are subject to its
laws.
Hence, in organizing this rebellion, they have acted as States
claiming to be sovereign over all persons and property within their
respective limits, and asserting a right to absolve their citizens from
their allegiance to the Federal Government. Several of these States
have combined to form a new confederacy, claiming to be acknowl-
edged by the world as a sovereign state. Their right to do so is
now being decided by wager of battle. The ports and territory
of each of these States are held in hostility to the General Govern-
ment. It is no loose, unorganized insurrection, having no defined
boundary or possession. It has a boundary marked by lines of
bayonets, and which can be crossed only by force south of this
350 CASES ON CONSTITUTIONAL LAW.
line is enemies' territory, because it is claimed and held in posses-
sion by an organized, hostile and belligerent power.
All persons residing within this territory whose property may
be used to increase the revenues of the hostile power are, in this
contest, liable to be treated as enemies, though not foreigners.
They have cast off their allegiance and made war on their Govern-
ment, and are none the less enemies because they are traitors.
But in defining the meaning of the term "enemies' property,"
we will be led into error if we refer to Fleta and Lord Coke for
their definition of the word "enemy." It is a technical phrase
peculiar to prize courts, and depends upon principles of public
policy as distinguished from the common law.
Whether property be liable to capture as "enemies' property"
does not in any manner depend on the personal allegiance of the
owner. "It is the illegal traffic that stamps it as 'enemies' prop-
erty.' It is of no consequence whether it belongs to an ally or a
citizen. 8 Cr., 384. The owner, pro hac vice, is an enemy." 3
Wash. C. C. R., 183.
The produce of the soil of the hostile country, as well as other
property engaged in the commerce of the hostile power, as the
source of its wealth and strength, are always regarded as legiti-
mate prize, without regard to the domicile of the owner, and much
more so if he reside and trade within their territory.
III. We now proceed to notice the facts peculiar to the several
cases submitted for our consideration. The principles which have
just been stated apply alike to all of them. . . .
[Ms. JUSTICE NELSON delivered a dissenting opinion, m which
CHIEF JUSTICE TANEY and JUSTICES CATRON and CLIFFORD con-
curred.]
NOTE. The decision in the Prize Cases was important not only
for the legal points determined, but for the complications that
would have ensued had the decision been different. The gravity
of the situation is set forth in the following letter of Richard H.
Dana, Jr., who was one of the counsel for the Government. He
said, "The Government is carrying on a war. It is exerting all
the powers of war. Yet the claimants of the captured vessels not
only seek to save their vessels by denying that they are liable to
capture, but deny the right of the Government to exercise war
powers, deny that this can be, in point of law, a war. So the
judiciary is actually, after a war of twenty-three months' duration,
to decide whether the Government has the legal capacity to exert
EX PARTE MILLIGAN. 351
these war powers. . . . Contemplate, my dear sir, the possi-
bility of the Supreme Court deciding that this blockade is illegal!
What a position it would put us in before the world, whose com-
merce we have been illegally prohibiting, whom we have unlaw-
fully subjected to cotton famine, and domestic dangers and dis-
tress for two years! It would end the war, and where it would
leave us with neutral powers, it is fearful to contemplate! Yet
such an event is legally possible, I do not think it probable,,
hardly possible, in fact. But last year I think there was danger
of such a result when the blockade was new, and before the three
new Judges were appointed." C. F. Adams, Life of Eichard
Henry Dana, II, 267. Quoted by Carson, The Supreme Court of
the United States, 385.
That the fears expressed in this letter were not groundless ap-
pears from the fact that a majority of the court as it was consti-
tuted before the appointment of the new judges dissented from
the judgment rendered in this case.
Ex PAETE MILLIGAN".
4 Wallace, 2. Decided 1866.
This case came before the court upon a certificate of division
from the judges of the Circuit Court for Indiana, on a petition
for discharge from unlawful imprisonment. . . . [The facts
are sufficiently stated in the opinion of the court.]
MR. JUSTICE DAVIS delivered the opinion of the court.
On the 10th day of May, 1865, Lambdin P. Milligan presented
a petition to the Circuit Court of the United States for the District
of Indiana, to be discharged from an alleged unlawful imprison-
ment. The case made by the petition is this: Milligan is a citizen
of the United States; has lived for twenty years in Indiana; and,
at the time of the grievances complained of, was not, and never
had been in the military or naval service of the United States.
On the 5th day of October, 1864, while at home, he was arrested
by order of General Alvin P. Hovey, commanding the military
district of Indiana; and has ever since been kept in close confine-
ment.
On the 21st day of October, 1864, he was brought before a
352 CASES ON CONSTITUTIONAL LAW.
military commission, convened at Indianapolis, by order of Gen-
eral Hovey, tried on certain charges and specifications; found
guilty, and sentenced to be hanged; and the sentence ordered to
be executed on Friday, the 19th day of May, 1865.
On the 2d day of January, 1865, after the proceedings of the
military commission were at an end, the Circuit Court of the
United States for Indiana met at Indianapolis and empanelled
a grand jury, who were charged to inquire whether the laws of
the United States had been violated; and, if so, to make present-
ments. The court adjourned on the 27th day of January, having
prior thereto discharged from further service the grand jury, who
did not find any bill of indictment or make any presentment
against Milligan for any offense whatever; and in fact, since his
imprisonment, no bill of indictment has been found or present-
ment made against him by any grand jury of the United States.
Milligan insists that said military commission had no jurisdic-
tion to try him upon the charges preferred, or upon any charges
whatever; because he was a citizen of the United States and the
State of Indiana, and had not been, since the commencement of
the late Rebellion, a resident of any of the States whose citizens
were arrayed against the government, and that the right of trial
by jury was guaranteed to him by the Constitution of the United
States.
The prayer of the petition was, that under the act of Congress,
approved March 3d, 1863, entitled, "An act relating to habeas
corpus and regulating judicial proceedings in certain cases," he
may be brought before the court, and either turned over to the
proper civil tribunal to be proceeded against according to the law
of the land or discharged from custody altogether.
With the petition were filed the order for the commission, the
charges and specifications, the findings of the court, with the order
of the War Department reciting that the sentence was approved
by the President of the United States, and directing that it be
carried into execution without delay. The petition was presented
and filed in open court by the counsel for Milligan; at the same
time the District Attorney of the United States for Indiana ap-
peared, and, by the agreement of counsel, the application was sub-
mitted to the court. The opinions of the judges of the Circuit
Court were opposed on three questions, which are certified to the
Supreme Court:
1st. "On the facts stated in said petition and exhibits, ought a
writ of habeas corpus to be issued?"
2d. "On the facts stated in said petition and exhibits, ought the
EX PARTE MILLIGAN. 353
said Lambdin P. Milligan to be discbarged from custody as in
said petition prayed?"
3d. "Whether, upon the facts stated in said petition and ex-
hibits, the military commission mentioned therein had jurisdic-
tion legally to try and sentence said Milligan in manner and form
as in said petition and exhibits is stated?"
The importance of the main question presented by this record
cannot be overstated; for it involves the very framework of the
government and the fundamental principles of American liberty.
During the late wicked Kebellion, the temper of the times did
not allow that calmness in deliberation and discussion so neces-
sary to a correct conclusion of a purely judicial question. Then,
considerations of safety were mingled with the exercise of power;
and feelings and interests prevailed which are happily terminated.
Now that the public safety is assured, this question, as well as all
others, can be discussed and decided without passion or the admix-
ture of any element not required to form a legal judgment. We
approach the investigation of this case, fully sensible of the mag-
nitude of the inquiry and the necessity of full and cautious de-
liberation.
But we are met with a preliminary objection. It is insisted
that the Circuit Court of Indiana had no authority to certify these
questions; and that we are without jurisdiction to hear and de-
termine them.
The sixth section of the "Act to amend the judicial system of
the United States," approved April 29, 1802, declares "that when-
ever any question shall occur before a Circuit Court upon which
the opinions of the judges shall be opposed, the point upon which
the disagreement shall happen, shall, during the same term, upon
the request of either party or their counsel, be stated under the
direction of the judges and certified under the seal of the court
to the Supreme Court at their next session to be held thereafter;
and shall by the said court be finally decided: And the decision
of the Supreme Court and their order in the premises shall be re-
mitted to the Circuit Court and be there entered of record, and
shall have effect according to the nature of the said judgment and
order: Provided, That nothing herein contained shall prevent
the cause from proceeding, if, in the opinion of the court, further
proceedings can be had without prejudice to the merits."
It is under this provision of law that a Circuit Court has author-
ity to certify any question to the Supreme Court for adjudication.
The inquiry,' therefore, is whether the case of Milligan is brought
within its terms.
354 CASES ON CONSTITUTIONAL LAW.
It was admitted at the bar that the Circuit Court had jurisdic-
tion to entertain the application for the writ of habeas corpus and
to hear and determine it; and it could not be denied; for th-j
power is expressly given in the 14th section of the Judiciary Act
of 1789, as well as in the later act of 18G3. Chief Justice Mar-
shall, in Bollman's case, 1 construed this branch of the Judiciary
Act to authorize the courts as well as the judges to issue the writ
for the purpose of inquiring into the cause of the commitment;
and 'this construction has never been departed from. But it is
maintained with earnestness and ability that a certificate of di-
vision of opinion can occur only in a cause; and that the pro-
ceeding by a party, moving for a writ of habeas corpus, does not
become a cause until after the writ has been issued and a return
made.
Independently of the provisions of the act of Congress of March
3, 1863, relating to habeas corpus, on which the petitioner bases
his claim for relief, and which we will presently consider, can this
position be sustained?
It is true that it is usual for a court on application for a writ
of habeas corpus, to issue the writ, and on the return, to dispose
of the case; but the court can elect to waive the issuing of the
writ and consider whether, upon the facts presented in the peti-
tion, the prisoner, if brought before it, could be discharged. One
of the very points on which the case of Tobias Watkins, reported
in 3 Peters, 2 turned, was, whether, if the writ has issued, the peti-
tioner would be remanded upon the case which he had made. The
Chief Justice, in delivering the opinion of the court, said: "The
cause of imprisonment is shown as fully by the petitioner as it
could appear on the return of the writ; consequently the writ
ought not to be awarded if the court is satisfied that the prisoner
would be remanded to prison/'
The judges of the Circuit Court of Indiana were, therefore,
warranted by an express decision of this court in refusing the
writ, if satisfied that the prisoner on his own showing was right-
fully detained.
But it is contended, if they differed about the lawfulness of
the imprisonment, and could render no judgment, the prisoner is
remediless; and cannot have the disputed question certified under
the act of 1802. His remedy is complete by writ of error or ap-
peal, if the court renders a final judgment refusing to discharge
him; but if he should be so unfortunate as to be plaeed in the
i 4 Cranch, 75. 2 p a ge 193.
EX PARTE MILLIGAN. 355
predicament of having the court divided on the question whether
he should live or die, he is hopeless and without remedy. He
wishes the vital question settled, not by a single judge at his
chambers, but by the highest tribunal known to the Constitution;
and yet the privilege is denied him; because the Circuit Court
consists of two judges instead of one.
Such a result was not in the contemplation of the legislature of
1802; and the language used by it cannot be construed to mean
any such thing. The clause under consideration was introduced
to further the ends of justice, by obtaining a speedy settlement of
important questions where the judges might be opposed in opinion.
The act of 1802 so changed the judicial system that the Circuit
Court, instead of three, was composed of two judges; and with-
out this provision or a kindred one, if the judges differed, the
difference would remain, the question be unsettled, and justice
denied. The decisions of this court upon the provisions of this
section have been numerous. In United States v. Daniel, 3 the
court, in holding that a division of the judges on a motion for a
new 'trial could not be certified, say: "That the question must
be one which arises in a cause depending before the court relative
to a proceeding belonging to the cause." Testing Milligan's case
by this rule of law, is it not apparent that it is rightfully here; and
that we are compelled to answer the questions on which the judges
below were opposed in opinion? If, in the sense of the law, the
proceeding for the writ of habeas corpus was the "cause" of the
party applying for it, then it is evident that the "cause" was
pending before the court, and that the questions certified arose
out of it, belonged to it, and were matters of right and not of dis-
cretion.
But it is argued that the proceeding does not ripen into a cause,
until there are two parties to it.
This we deny. It was the cause of Milligan when the petition
was presented to the Circuit Court. It would have been the
cause of both parties, if the court had issued the writ and brought
those who held Milligan in custody before it. Webster defines the
word "cause" thus: "A suit or action in court; any legal process
which a party institutes to obtain his demand, or by which he
seeks his right, or supposed right" and he says, "this is a legal,
scriptural, and popular use of the word coinciding nearly with
case, from cado, and action, from ago, to urge and drive."
In any legal sense, action, suit, and cause, are convertible terms.
s 6 Wheaton, 542.
356 CASES ON CONSTITUTIONAL LAW.
Milligan supposed he had a right to test the validity of his trial
and sentence; and the proceeding which he set in operation for
that purpose was his "cause" or "suit." It was the only one by
which he could recover his liberty. He was powerless to do more;
he could neither instruct the judges nor control their action, and
should not suffer, because, without fault of his, they were unable
to render a judgment. But the true meaning to the term "suit"
has been given by this court. One of the questions in Weston v.
City Council of Charleston 4 was whether a writ of prohibition
was a suit; and Chief Justice Marshall says: "The term is cer-
tainly a comprehensive one, and is understood to apply to any
proceeding in a court of justice by which an individual pursues
that remedy which the law affords him." Certainly, Milligan
pursued the only remedy which the law afforded him.
Again in Cohens v. Virginia, 5 he says: "In law language
a suit is the prosecution of some demand in a court of
justice." Also, "To commence a suit is to demand something
by the institution of process in a court of justice; and to prose-
cute the suit is to continue that demand." When Milligan de-
manded his release by the proceeding relating to habeas corpus,
he commenced a suit; and he has since prosecuted it in all the
ways known to the law. One of the questions in Holmes v. Jenni-
son et al., was, whether under the 25th section of the Judiciary
Act a proceeding for a writ of habeas corpus was a "suit." Chief
Justice Taney held, that, "if a party is unlawfully imprisoned,
the writ of habeas corpus is his appropriate legal remedy. It is
his suit in court to recover his liberty." There was much diversity
of opinion on another ground of jurisdiction; but that, in the
sense of the 25th section of the Judiciary Act, the proceeding by
habeas corpus was a suit, was not controverted by any except Bald-
win, Justice, and he thought that "suit" and "cause" as used in
the section, mean the same thing.
The court do not say that a return must be made and the parties
appear and begin to try the case before it is a suit. When the
petition is filed and the writ prayed for, it is a suit, the suit of
the party making the application. If it is a suit under the 25th
section of the Judiciary Act when the proceedings are begun, it
is, by all the analogies of the law, equally a suit under the 6th
section of the act of 1802.
But it is argued, that there must be two parties to the suit, be-
* 2 Peters, 449. e 14 Peters, 540.
s 6 Wheaton, 264.
EX PARTE MILLIGAN. 357
cause the point is to be stated upon the request of "either party
or their counsel."
Such a literal and technical construction would defeat the very
purpose the legislature had in view, which was to enable any party
to bring the case here, when the point in controversy was a matter
of right and not of discretion; and the words "either party," in
order to prevent a failure of justice, must be construed as words
of enlargement, and not of restriction. Although this case is
here ex parte, it was not considered by the court below without
notice having been given to the party supposed to have an interest
in the detention of the prisoner. The statements of the record
show that this is not only a fair, but conclusive inference. When
the counsel for Milligan presented to the court the petition for a
writ of habeas corpus, Mr. Hanna, the District Attorney for Indi-
ana, also appeared; and, by agreement, the application was sub-
mitted to the court, who took the case under advisement, and on
the next day announced their inability to agree, and made the
certificate. It is clear that Mr. Hanna did not represent the peti-
tioner, and why is his appearance entered? It admits of no other
solution than this, that he was informed of the application, and
appeared on behalf of the government to contest it. The govern-
ment was the prosecutor of Milligan, who claimed that his impris-
onment was illegal; and sought, in the only way he could, to
recover his liberty. The case was a grave one; and the court,
unquestionably, directed that the law officer of the government
should be informed of it. He very properly appeared, and, as the
facts were uncontroverted and the difficulty was in the application
of the law, there was no useful purpose to be obtained in issuing
the writ. The cause was, therefore, submitted to the court for
their consideration and determination.
But Milligan claimed his discharge from custody by virtue of
the act of Congress "relating to habeas corpus, and regulating
judicial proceedings in certain cases," approved March 3, 1863.
Did that act confer jurisdiction on the Circuit Court of Indiana
to hear this case?
In interpreting a law, the motives which must have operated
with the legislature in passing it are proper to be considered. This
law was passed in a time of great national peril, when our heritage
of free government was in danger. An armed rebellion against
the national authority, of greater proportions than history affords
an example of, was raging; and the public safety required that the
privilege of the writ of habeas corpus should be suspended. The
President had practically suspended it, and detained suspected
358 CASES ON CONSTITUTIONAL LAW.
persons in custody without trial; but his authority to do this was
questioned. It was claimed that Congress alone could exercise
this power; and that the legislature, and not the President, should
judge of the political considerations on which the right to sus-
pend it rested. The privilege of this great writ had never before
been withheld from the citizen; and as the exigence of the times
demanded immediate action, it was of the highest importance
that the lawfulness of the suspension should be fully established.
It was under these circumstances, which were such as to arrest
the attention of the country, that this law was passed. The Presi-
dent was authorized by it to suspend the privilege of the writ of
habeas corpus, whenever, in his judgment, the public safety re-
quired; and he did, by proclamation, bearing date the 15th of
September, 1863, reciting, among other things, the authority of
this statute, suspend it. The suspension of the writ does not
authorize the arrest of any one, but simply denies to one arrested
the privilege of this writ in order to obtain his liberty.
It is proper, therefore, -to inquire under what circumstances the
courts could rightfully refuse to grant this writ, and when the
citizen was at liberty to invoke its aid.
The second and third sections of the law are explicit on these
points. The language used is plain and direct, and the meaning
of the Congress cannot be mistaken. The public safety demanded,
if the President thought proper to arrest a suspected person, that,
he should not be required to give the cause of his detention on
return to a writ of habeas corpus. But it was not contemplated
that such person should be detained in custody beyond a certain
fixed period, unless certain judicial proceedings, known to the
common law, were commenced against him. The Secretaries of
State and War were directed to furnish to the judges of the courts
of the United States a list of the names of all parties, not prisoners
of war, resident in their respective jurisdictions, who then were
or afterwards should be held in custody by the authority of the
President, and who were citizens of States in which the admin-
istration of the laws in the Federal tribunals was unimpaired.
After the list was furnished, if a grand jury of the district con-
vened and adjourned, and did not indict or present one of the
persons thus named, he was entitled to his discharge; and it was
the duty of the judge of the court to order him brought before
him to be discharged, if he desired it. The refusal or omission to
furnish the list could not operate to the injury of any one who
was not indicted or presented by the grand jury; for, if twenty
days had elapsed from the time of his arrest and the termination
EX PARTE MILLIGAN. 359
of the session of the grand jury, he was equally entitled to his
discharge as if the list were furnished; and any credible person,
on petition verified by affidavit, could obtain the judge's order
for that purpose.
Milligan, in his application to be released from imprisonment,
averred the existence of every fact necessary under the terms of
this law to give the Circuit Court of Indiana jurisdiction. If he
was detained in custody by the order of the President, otherwise
than as a prisoner of war; if he was a citizen of Indiana and had
never been in the military or naval service, and the grand jury of
the district had met, after he had been arrested, for a period of
twenty days, and adjourned without taking any proceedings
against him, then the court had the right to entertain his petition
and determine the lawfulness of his imprisonment. Because the
word "court" is not found in the body of the second section, it
was argued at the bar, that the application should have been made
to a judge of the court, and not to the court itself; but this is not
so, for power is expressly conferred in the last proviso of the
section on the court equally with a judge of it to discharge from
imprisonment. It was the manifest design of Congress to secure
a certain remedy by which any one, deprived of liberty, could
obtain it, if there was a judicial failure to find cause of offense
against him. Courts are not, always, in session, and can adjourn
on the discharge of the grand jury; and before those who are in
confinement could take proper steps to procure their liberation.
To provide for this contingency, authority was given to the judges
out of court to grant relief to any party who could show, that,
under the law, he should be no longer restrained of his liberty.
It was insisted that Milligan's case was defective because it did
not state that the list was furnished to the judges; and, there-
fore, it was impossible to say under which section of the act it
was presented.
It is not easy to see how this omission could affect the ques-
tion of jurisdiction. Milligan could not know that the list was
furnished, unless the judges volunteered to tell him; for the law
did not require that any record should be made of it or anybody
but the judges informed of it. Why aver the fact when the truth
of the matter was apparent to the court without an averment?
How can Milligan be harmed by the absence of the averment, when
he states that he was under arrest for more than sixty days before
the court and grand jury, which should have considered his case,
met at Indianapolis? It is apparent, therefore, that under the
Habeas Corpus Act of 1863 the Circuit Court of Indiana had com-
360 CASES ON CONSTITUTIONAL LAW.
plete jurisdiction to adjudicate upon this case, and, if the judges
could not agree on questions vital to the progress of the cause,
they had the authority (as we have shown in a previous part of
this opinion), and it was their duty to certify those questions of
disagreement to this court for final decision. It was argued tha>
a final decision on the questions presented ought not to be made,
because the parties who were directly concerned in the arrest and
detention of Milligan, were not before the court; and their rights
might be prejudiced by the answer which should be given to those
questions. But this court cannot know what return will be made
to the writ of habeas corpus when issued; and it is very clear that
no one is concluded upon any question that may be raised to that
return. In the sense of the law of 1802 which authorized a certifi-
cate of division, a final decision means final upon the points
certified; final upon the court below, so that it is estopped from
any adverse ruling in all the subsequent proceedings of the cause.
But it is said that this case is ended, as the presumption is, that
Milligan was hanged in pursuance of the order of the President.
Although we have no judicial information on the subject, yet
the inference is that he is alive; for otherwise learned counsel
would not appear for him and urge this court to decide .his case.
It can never be in this country of written constitution and laws,
with a judicial department to interpret them, that any chief
magistrate would be so far forgetful of his duty, as to order the
execution of a man who denied the jurisdiction that tried and con-
victed him; after his case was before Federal judges with power
to decide it, who, being unable to agree on the grave questions
involved, had, according to known law, sent it to the Supreme
Court of the United States for decision. But even the suggestion
is injurious to the Executive, and we dismiss it from further con-
sideration. There is, therefore, nothing to hinder this court from
an investigation of the merits of this controversy.
The controlling question in the case is this: Upon the facts
stated in Milligan's petition, and the exhibits filed, had the mili-
tary commission mentioned in it jurisdiction, legally, to try and
sentence him? Milligan, not a resident of one of the rebellious
States, or a prisoner of war, but a citizen of Indiana for twenty
years past, and never in the military or naval service, is, while at
his home, arrested by the military power of the United States, im-
prisoned, and, on certain criminal charges preferred against him,
tried, convicted, and sentenced to be hanged by a military commis-
sion, organized under the direction of the military commander of
EX PARTE MILLIGAN. 361
the military district of Indiana. Had this tribunal the legal
power and authority to try and punish this man?
No graver question was ever considered by this court, nor one
which more nearly concerns the rights of the whole people; for it
is the birthright of every American citizen when charged with
crime, to be tried and punished according to law. The power of
punishment is alone through the means which the laws have pro-
vided for that purpose, and if they are ineffectual, there is an im-
munity from punishment, no matter how great an offender the
individual may be, or how much his crimes may have shocked the
sense of justice of the country, or endangered its safety. By the
protection of the law human rights are secured; withdraw that
protection, and they are at the mercy of wicked rulers, or the
clamor of an excited people. If there was law to justify this mili-
tary trial, it is not our province to interfere; if there was not, it is
our duty to declare the nullity of the whole proceedings. The
decision of this question does not depend on argument or judicial
precedents, numerous and highly illustrative as they are. These
precedents inform us of the extent of the struggle to preserve
liberty, and to relieve those in civil life from military trials. The
founders of our government were familiar with the history of that
struggle, and secured in a written Constitution every right which
the people had wrested from power during a contest of ages. By
that Constitution and the laws authorized by it this question must
be determined. The provisions of that instrument on the admin-
istration of criminal justice are too plain and direct to leave room
for misconstruction or doubt of their true meaning. Those applica-
ble to this case are found in that clause of the original Constitution
which says, "That the trial of all crimes, except in case of im-
peachment, shall be by jury;" and in the fourth, fifth, and sixth
articles of the amendments. The fourth proclaims the right to
be secure in person and effects against unreasonable search and
seizure; and directs that a judicial warrant shall not issue "with-
out proof of probable cause supported by oath or affirmation."
The fifth declares "that no person shall be held to answer for a
capital or otherwise infamous crime unless on presentment by 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 be deprived of life, liberty, or property, without due
process of law." And the sixth guarantees the right of trial by
jury, in such manner and with such regulations that with up-
right judges, impartial juries, and an able bar, the innocent will
be saved and the guilty punished. It is in these words: "In all
362 CASES ON CONSTITUTIONAL LAW.
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 defense." These securities for personal liberty thus embodied,
were such as wisdom and experience had demonstrated to be nec-
essary for the protection of those accused of crime. And so strong
was the sense of the country of their importance, and so jealous
were the people that these rights, highly prized, might be denied
them by implication, that when the original Constitution was pro-
posed for adoption it encountered severe opposition; and, but for
the belief that it would be so amended as to embrace them, it
would never have been ratified.
Time has proven the discernment of our ancestors; for even
these provisions, expressed in such plain English words, that it
would seem the ingenuity of man could not evade them, are now,
after the lapse of more than seventy years, sought to be avoided.
Those great and good men foresaw that troublous times would
arise, when rulers and people would become restive under re-
straint, and seek by sharp and decisive measures to accomplish
ends deemed just and proper; and that the principles of consti-
tutional liberty would be in peril, unless established by irre-
pealable law. The history of the world had taught them that
what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its pro-
tection all classes of men, at all times, and under all circum-
stances. No doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of govern-
ment. Such a doctrine leads directly to anarchy or despotism,
but the theory of necessity on which it is based is false; for the
government, within the Constitution, has all the powers granted
to it which are necessary to preserve its existence; as has been
happily proved "by the result of the great effort to throw off its
just authority.
Have any of the rights guaranteed by the Constitution been
violated in the case of Milligan? and if so, what are they?
Every trial involves the exercise of judicial power; and from
what source did the military commission that tried him derive
EX PARTE MILLIGAN. 3G3
their authority? Certainly no part of the judicial power of the
country was conferred on them; because the Constitution ex-
pressly vests it "in one supreme court and such inferior courts
as the Congress may from time to time ordain and establish," and
it is not pretended that the commission was a court ordained and
established by Congress. They cannot justify on the mandate of
the President, because he is controlled by law, and has his appro-
priate sphere of duty, which is to execute, not to make, the laws;
and there is "no unwritten criminal code to which resort can
be had as a source of jurisdiction."
But it is said that the jurisdiction is complete under the "laws
and usages of war."
/ It can serve no useful purpose to inquire what those laws and
^usages "are, whence they originated, where found, and on whom
they operate; they can never be applied to citizens in States which
have upheld the authority of the government, and where the courts
are open and their process unobstructed. This court has judicial
knowledge that in Indiana the Federal authority was always un-
opposed, and its courts always open to hear criminal accusations
and redress grievances; and no usage of war could sanction a mili-
tary trial there for. any offense whatever of a citizen in civil life,
in nowise connected with the military service. Congress could
grant no such power; and to the honor of our national legislature
be it said, it has never been provoked by the state of the country
even to attempt its exercise. One of the plainest constitutional
provisions was, therefore, infringed when Milligan was tried by a
court not ordained and established by Congress, and not com-
posed of judges appointed during good behavior.
Why was he not delivered to the Circuit Court of Indiana to
be proceeded against according to law? No reason of necessity
could be urged against it; because Congress had declared penal-
ties against the offenses charged, provided for their punishment,
and directed that court to hear and determine them. And soon
after this military tribunal was ended, the Circuit Court met,
peacefully transacted its business, and adjourned. It needed no
bayonets to protect it, and required no military aid to execute its
judgments. It was held in a State, eminently distinguished for
patriotism, by judges commissioned during the Eebellion, who
were provided with juries, upright, intelligent, and selected by a
marshal appointed by the President. The government had no
right to conclude that Milligan, if guilty, would not receive in
that court merited punishment; for its records disclose that it
was constantly engaged in the trial of similar offenses, and was
364 CASES ON CONSTITUTIONAL LAW.
never interrupted in its administration of criminal justice. If it
was dangerous, in the distracted condition of affairs, to leave Mil-
ligan unrestrained of his liberty, because he "conspired against
the government, afforded aid and comfort to rebels, and incited
the people to insurrection," the law said, arrest him, confine him
closely, render him powerless to do further mischief; and then
present his case to the grand jury of the district, with proofs of
his guilt, and, if indicted, try him according to the course of the
common law. If this had been done, the Constitution would
have been vindicated, the law of 1863 enforced, and the securi-
ties for personal liberty preserved and defended.
Another guarantee of freedom was broken when Milligan was
denied a trial by jury. The great minds of the country have dif-
fered on the correct interpretation to be given to the various pro-
visions of the Federal Constitution; and judicial decision has been
often invoked to settle their true meaning; but until recently
no one ever doubted that the right of trial by jury was fortified
in the organic law against the power of attack. It is now as-
sailed; but if ideas can be expressed in words, and language has
any meaning, this right one of the most valuable in a free
country is preserved to every one accused of crime who is not
attached to the army, or navy, or militia in actual service. The
sixth amendment affirms that "in all criminal prosecutions the
accused shall enjoy the right to a speedy and public trial by an
impartial jury," language broad enough to embrace all persons
and cases; but the fifth, recognizing the necessity of an indict-
ment, or presentment, before any one can be held to answer for
high crimes, "excepts cases arising in the land or naval forces,
or in the militia, when in actual service, in time of war or public
danger;" and the framers of the Constitution, doubtless, meant
to limit the right of trial by jury, in the sixth amendment, to
those persons who were subject to indictment or presentment
in the fifth.
The discipline necessary to the efficiency of the army and
navy required other and swifter modes of trial than are furnished
by the common-law courts; and, in pursuance of the power con-
ferred by the Constitution, Congress has declared the kinds of
trial, and the manner in which they shall be conducted, for offenses
committed while the party is in the military or naval service.
Every one connected with these branches of the public service is
amenable to the jurisdiction which Congress has created for their
government, and, while thus serving, surrenders his right to be
tried by the civil courts. All other persons, citizens of States
EX PARTE MILLIGAN. 3G5
where the courts are open, if charged with crime, are guaranteed
the inestimable privilege of trial by jury. This privilege is a vital
principle, underlying the whole administration of criminal jus-
tice; it is not held by sufferance, and cannot be frittered away
on any plea of State or political necessity. When peace prevails,
and the authority of the government is undisputed, there is no
difficulty of preserving the safeguards of liberty; for the ordinary
modes of trial are never neglected, and no one wishes it other-
wise; but if society is disturbed by civil commotion if the pas-
sions of men are aroused and the restraints of law weakened, if
not disregarded these safeguards need, and should receive, the
watchful care of those intrusted with the guardianship of the
Constitution and laws. In no other way can we transmit to pos-
terity unimpaired the blessings of liberty, consecrated by the
sacrifices of the Eevolution.
It is claimed that martial law covers with its broad mantle the
proceedings of this military commission. The proposition is this:
that in a time of war the commander of an armed force (if, in his
opinion, the exigencies of the country demand it, and of which
he is the judge) has the power, \vithin the lines of his military
district, to suspend all civil rights and their remedies, and subject
citizens as well as soldiers to the rule of his will; and in the
exercise of his lawful authority cannot be restrained, except by
his superior officer or the President of the United States.
If this position is sound to the extent claimed, then when war
exists, foreign or domestic, and the country is subdivided into
military departments for mere convenience, the commander of one
of them can, if he chooses, within his limits, on the plea of
necessity, with the approval of the Executive, substitute mili-
tary force for, and to the exclusion of, the laws, and punish all
persons, as he thinks right and proper, without fixed or certain
rules.
The statement of this proposition shows its importance; for,
if true, republican government is a failure, and there is an end
of liberty regulated by law. Martial law, established on such a
basis, destroys every guarantee of the Constitution, and effectually
renders the "military independent of, and superior to, the civil
power," the attempt to do which by the King of Great Britain
was deemed by our fathers such an offense, that they assigned it
to the world as one of the causes which impelled them to declare
their independence. Civil liberty and this kind of martial law
cannot endure together; the antagonism is irreconcilable; and,
in the conflict, one or the other must perish.
366 CASES ON CONSTITUTIONAL LAW.
This nation, as experience has proved, cannot always remain at
peace, and has no right to expect that it will always have wise
and humane rulers, sincerely attached to the principles of the
Constitution. Wicked men, ambitious of power, with hatred of
liberty and contempt of law, may fill the place once occupied
by Washington and Lincoln; and if this right is conceded, and
the calamities of war again befall us, the dangers to human 'lib-
erty are frightful to contemplate. If our fathers had failed to
provide for just such a contingency, they would have been false
to the trust reposed in them. They knew the history of the
world told them the nation they were founding, be its existence
short or long, would be involved in war; how often or how long
continued, human foresight could not tell; and that unlimited
power, wherever lodged at such a time, was especially hazardous
to freemen. For this, and other equally weighty reasons, they
secured the inheritance they had fought to maintain, by incor-
porating in a written Constitution the safeguards which time had
proved were essential to its preservation. Not one of these safe-
guards can the President, or Congress, or the Judiciary disturb,
except the one concerning the writ of habeas corpus.
It is essential to the safety of every government that in a great
crisis, like the one we have just passed through, there should be
a power somewhere of suspending the writ of habeas corpus. In
every war, there are men of previously good character, wicked
enough to counsel their fellow-citizens to resist the measures
deemed necessary by a good government to sustain its just author-
ity and overthrow its enemies; and their influence may lead to
dangerous combinations. In the emergency of the times, an im-
mediate public investigation according to law may not be pos-
sible; and yet the peril to the country may be too imminent to
suffer such persons to go at large. Unquestionably, there is then
an exigency which demands that the government, if it should
see fit, in the exercise of a proper discretion, to make arrests, should
not be required to produce the persons arrested in answer to a
writ of habeas corpus. The Constitution goes no further. It does
not say after a writ of habeas corpus is denied a citizen, that he
shall be tried otherwise than by the course of the common law;
if it had intended this result, it was easy by the use of direct
words to have accomplished it The illustrious men who framed
that instrument were guarding the foundations of civil liberty
against the abuses of unlimited power; they were full of wisdom,
and the lessons of history informed them that a trial by an estab-
lished court, asisted by an impartial jury, was the only sure way
EX PARTE MILLIGAN. 3G7
of protecting the citizen against oppression and wrong. Know-
ing this, they limited the suspension to one great right, and left
the rest to remain forever inviolable. But, it is insisted that the
safety of the country in time of war demands that this broad
claim for martial law shall be sustained. If this were true, it
could be well said that a country, preserved at the sacrifice of all
the cardinal principles of liberty, is not worth the cost of preserva-
tion. Happily, it is not so.
It will be borne in mind that this is not a question of the power
to proclaim martial law, when war exists in a community and
the courts and civil authorities are overthrown. Nor is it a ques-
tion what rule a military commander, at the head of his army,
can impose on States in rebellion to cripple their resources and
quell the insurrection. The jurisdiction claimed is much more
extensive. The necessities of the service, during the. late Eebel-
lion, required that the loyal States should be placed within the
limits of certain military districts and commanders appointed in
them; and, it is urged, that this, in a military sense, constituted
them the theatre of military operations; and, as in this case,
Indiana had been and was again threatened with invasion by the
enemy, the occasion was furnished to establish martial law. The
conclusion does not follow from the premises. If armies were
collected in Indiana, they were to be employed in another locality,
where the laws were obstructed and the national authority dis-
puted. On her soil there was no hostile foot; if once invaded,
that invasion was at an end, and with it all pretext for martial
law. Martial law cannot arise from a threatened invasion. The
necessity must be actual and present; the invasion real, such as
effectually closes the courts and deposes the civil administra-
tion.
It is difficult to see how the safety of the country required mar-
tial law in Indiana. If any of her citizens were plotting treason,
the power of arrest could secure them, until the government was
prepared for their trial, when the courts were open and ready to
try them. It was as easy to protect witnesses before a civil as a
military tribunal; and as there could be no wish to convict,
except on sufficient legal evidence, surely an ordained and estab-
lished court was better able to judge of this than a military
tribunal composed of gentlemen not trained to the profession of
the law.
It follows, from what has been said on this subject, that there
are occasions when martial rule can be properly applied. If, in
foreign invasion or civil war, the courts are actually closed, and
3G8 CASES ON CONSTITUTIONAL LAW.
it is impossible to administer criminal justice according to law,
then, on the theatre of active military operations, where war
really prevails, there is a necessity to furnish a substitute for the
civil authority, thus overthrown, to preserve the safety of the
army and society; and as no power is left but the military, it is
allowed to govern by martial rule until the laws can have their
free course. As necessity creates the rule, so it limits its dura-
tion; for, if this government is continued after the courts are
reinstated, it is a gross usurpation of power. Martial rule can
never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction. It is also confined
to the locality of actual war. Because, during the late Rebel-
lion it could have been enforced in Virginia, where the national
authority was overturned and the courts driven out, it does not
follow that it should obtain in Indiana, where that authority was
never disputed, and justice was always administered. And so
in the case of a foreign invasion, martial rule may become a neces-
sity in one State, when, in another, it would be "mere lawless
violence."
We are not without precedents in English and American his-
tory illustrating our views of this question; but it is hardly neces-
sary to make particular reference to them.
From the first year of the reign of Edward the Third, when
the Parliament of England reversed the attainder of the Earl
of Lancaster, because he could have been tried by the courts
of the realm, and declared, "that in time of peace no man ought
to be adjudged to death for treason or any other offense with-
out being arraigned and held to answer; and that regularly when
the king's courts are open it is a time of peace in judgment of
law," down to the present day, martial law, as claimed in this
case, has been condemned by all respectable English jurists as
contrary to the fundamental laws of the land, and subversive of
the liberty of the subject.
During the present century, an instructive debate on this ques-
tion occurred in Parliament, occasioned by the trial and convic-
tion by court-martial, at Demerara, of the Rev. John Smith, a
missionary to the negroes, on the alleged ground of aiding and
abetting a formidable rebellion in that colony. Those eminent
statesmen, Lord Brougham and Sir James Mackintosh, partici-
pated in that debate; and denounced the trial as illegal; because
it did not appear that the courts of law in Demerara could not try
offenses, and that "when the laws can act, every other mode
of punishing supposed crimes is itself an enormous crime."
EX PARTE MILLIGAN. 369
So sensitive were our Revolutionary fathers on this subject,
although Boston was almost in a state of siege, when General
Gage issued his proclamation of martial law they spoke of it
as an "attempt to supersede the course of the common law, and
instead thereof to publish and order the use of martial law." The
Virginia Assembly, also, denounced a similar measure on the part
of Governor Dunmore "as an assumed power, which the king
himself cannot exercise; because it annuls >the law of the land
and introduces the most execrable of all systems, martial law."
In some parts of the country, during the war of 1812, our
officers made arbitrary arrests and, by military tribunals, tried
citizens who were not in the military service. These arrests and
trials, when brought to the notice of the courts, were uniformly
condemned as illegal. The cases of Smith v. Shaw, and McCon-
nell v. Hampden (reported in 12 Johnson,) 1 are illustrations,
which we cite, not only for the principles they determine, but on
account of the distinguished jurists concerned in the decisions,
one of whom for many years occupied a seat on this bench.
It is contended, that Luther v. Borden, decided by this court,
is an authority for the claim of martial law advanced in this case.
The decision is misapprehended. That case grew out of the at-
tempt in Ehode Island to supersede the old colonial government
by a revolutionary proceeding. Ehode Island, until that period,
had no other form of local government than the charter granted
by King Charles II in 1663; and as that limited the right of
suffrage, and did not provide for its own amendment, many citi-
zens became dissatisfied, because the legislature would not afford
the relief in their power; and without the authority of law,
formed a new and independent constitution, and proceeded to
assert its authority by force of arms. The old government re-
sisted this; and as the rebellion was formidable, called out the
militia to subdue it, and passed an act declaring martial law. Bor-
den, in the military service of the old government, broke open
the house of Luther, who supported the new, in order to arrest
him. Luther brought suit against Borden; and the question
was, whether, under the constitution and laws of the state, Borden
was justified. This court held that a state "may use its mili-
tary power to put down an armed insurrection too strong to be
controlled by the civil authority;" and, if the legislature of Ehode
Island thought the peril so great as to require the use of its
military forces and the declaration of martial law, there was no
i Pages 257 and 234.
24
370 CASES ON CONSTITUTIONAL LAW.
ground on which this court could question its authority; and as
Borden acted under military orders of the charter government,
which had been recognized by the political power of the coun-
try, and was upheld by the state judiciary, he was justified in
breaking into and entering Luther's house. This is the extent of
the decision. There was no question in issue about the power of
declaring martial law under the Federal Constitution, and the
court did not consider it necessary even to inquire "to what extent
nor under what circumstances that power may be exercised by
a state."
We do not deem it important to examine further the adjudged
cases; and shall, therefore, conclude without any additional refer-
ence to authorities.
To the third question, then, on which the judges below were
opposed in opinion, an answer in the negative must be returned.
It is proper to say, although Milligan's trial and conviction
by a military commission was illegal, yet, if guilty of the crimes
imputed to him, and his guilt had been ascertained by an estab-
lished court and impartial jury, he deserved severe punishment.
Open resistance to the measures deemed necessary to subdue a
great rebellion, by those who enjoy the protection of government,
and have not the excuse even of prejudice of section to plead in
their favor, is wicked; but that resistance becomes an enormous
crime when it assumes the form of a secret political organiza-
tion, armed to oppose the laws, and seeks by stealthy means to
introduce the enemies of the country into peaceful communities,
there to light the torch of civil war, and thus overthrow the power
of the United States. Conspiracies like these, at such a junc-
ture, are extremely perilous; and those concerned in them are
dangerous enemies to their country, and should receive the heav-
iest penalties of the law, as an example to deter others from sim-
ilar criminal conduct. It is said the severity of the laws caused
them; but Congress was obliged to enact severe laws to meet
the crisis; and as our highest civil duty is to serve our country
when in danger, the late war has proved that rigorous laws, when
necessary, will be cheerfully obeyed by a patriotic people, strug-
gling to preserve the rich blessings of a free government.
The two remaining questions in this case must be answered
in the affirmative. The suspension of the privilege of the writ
of habeas corpus does not suspend the writ itself. The writ issues
as a matter of course; and on the return made to it the court
decides whether the party applying is denied the right of pro-
ceeding any further with it.
EX PARTE MILLIGAN. 371
If the military trial of Milligan was contrary to law, then ne
was entitled, on the facts stated in his petition, to be discharged
from custody by the terms of the act of Congress of March 3,
1863. The provisions of this law having been considered in a
previous part of this opinion, we will not restate the views there
presented. Milligan avers he was a citizen of Indiana, not in the
military or naval service, and was detained in close confinement,
by order of the President, from the 5th day of October, 1864,
until the 2d day of January, 1865, when the Circuit Court for the
District of Indiana, with a grand jury, convened in session at
Indianapolis; and afterwards, on the 27th day of the same month,
adjourned without finding an indictment or presentment against
him. If these averments were true (and their truth is conceded
for the purposes of this case), the court was required to liberate
him on taking certain oaths prescribed by the law, and entering
into recognizance for his good behavior.
But it is insisted that Milligan was a prisoner of war, and, there-
fore, excluded from the privileges of the statute. It is not easy
to see how he can be treated as a prisoner of war, when he lived
in Indiana for the past twenty years, was arrested there, and had
not been, during the late troubles, a resident of any of the states
in rebellion. If in Indiana he conspired with bad men to assist
the enemy, he is punishable for it in the courts of Indiana; but,
Avhen tried for the offense, he cannot . plead the rights of war;
for he was not engaged in legal acts of hostility against the gov-
ernment, and only such persons, when captured, are prisoners of
war. If he cannot enjoy the immunities attaching to the charac-
ter of a prisoner of war, how can he be subject to their pains
and penalties?
This case, as well as the kindred cases of Bowles and Horsey,
were disposed of at the last term, and the proper orders were
entered of record. There is, therefore, no additional entry re-
quired.
[The CHIEF JUSTICE, for himself and MESSRS. JUSTICES
WAYNE, S WAYNE, -and MILLER, delivered an opinion in which he
differed from the court in several important particulars, but con-
curred in the order made in the case.]
IX. EX POST FACTO LAWS AND BILLS
OF ATTAINDER.
CALDER v. BULL.
3 Dallas, 386. Decided 1798.
IN error from the State of Connecticut. The cause was argued
at the last term (in the absence of the chief justice), and now
the court delivered their opinions seriatim.
CHASE, J. The decision of one question determines, in my
opinion, the present dispute. I shall, therefore, state from the
record no more of the case than I think necessary for the con-
sideration of that question only.
The legislature of Connecticut, on the second Thursday of May,
1795, passed a resolution or law, which, for the reasons assigned,
set aside a decree of the court of probate for Hartford, on the 21st
of March, 1793, which decree disapproved of the will of Normand
Morrison, the grandson, made the 21st of August, 1779, and re-
fused to record the said will; and granted a new hearing by the
said court of probate, with liberty of appeal therefrom, in six
months. A new hearing was had, in virtue of this resolution, or
law, before the said court of probate, who, on the 27th of July,
1795, approved the said will, and ordered it to be recorded. At
August, 1795, appeal was then had to the superior court at Hart-
ford, who, at February term, 1796, affirmed the decree of the
court of probate. Appeal was had to the supreme court of errors
of Connecticut, who, in June, 1796, adjudged that there were no
errors. More than eighteen months elapsed from the decree of
the court of probate, on the 1st of March, 1793, and thereby
Caleb Bull and wife were barred of all right of appeal, by a statute
of Connecticut. There was no law of that State whereby a new
hearing, or trial, before the said court of probate might be ob-
tained. Calder and wife claim the premises in question, in right
of his wife, as heiress of N. Morrison, physician; Bull and wife
claim under the will of N. Morrison, the grandson.
The counsel for the plaintiffs in error contend that the said
372
CALDER v. BULL. 373
resolution or law of the legislature of Connecticut, granting a new
hearing in the above case, is an ex post facto law, prohibited
by the constitution of the United States; that any law of the
federal government, or of any of the state governments, contrary
to the constitution of the United States, is void; and that this
court possesses the power to declare such law void.
It appears to me a self-evident proposition, that the several
state legislatures retain all the powers of legislation delegated to
them by the state constitutions, which are not expressly taken
away by the constitution of the United States. The establish-
ing courts of justice, the appointment of judges, and the making
regulations for the administration of justice within each State,
according to its laws, on all subjects not intrusted to the federal
government, appear to me to be the peculiar and exclusive prov-
ince and duty of the state legislatures. All the powers delegated
by the people of the United States to the federal government are
defined, and no constructive powers can be exercised by it, and all
the powers that remain in the state governments are indefinite,
except only in the constitution of Massachusetts.
The effect of the resolution or law of Connecticut above stated,
is to revise a decision of one of its inferior courts, called the court
of probate for Hartford, and to direct a new hearing of the case
by the same court of probate that passed the decree against the
will of Normand Morrison. By the existing law of Connecticut,
a right to recover certain property had vested in Calder and wife
(the appellants) in consequence of a decision of a court of jus-
tice, but, in virtue of a subsequent resolution or law, and the
new hearing thereof, and the decision in consequence, this right
to recover certain property was divested, and the right to the
property declared to be in Bull and wife, the appellees. The
sole inquiry is, whether this resolution or law of Connecticut, hav-
ing such operation, is an ex post facto law within the prohibition
of the federal constitution?
Whether the legislature of any of the States can revise and cor-
rect, by law, a decision of any of its courts of justice, although
not prohibited by the constitution of the State, is a question of
very great importance, and not necessary now to be determined,
because the resolution or law in question does not go so far. I
cannot subscribe to the omnipotence of a state legislature, or that
it is absolute and without control, although its authority should
not be expressly restrained by the constitution, or fundamental
law of the State. The people of the United States erected their
constitutions, or forms of government, to establish justice, to pro-
374 CASES ON CONSTITUTIONAL LAW.
mote the general welfare, to secure the blessings of liberty; and
to protect their persons and property from violence. The pur-
poses for which men enter into society will determine the nature
and terms of the social compact; and as they are the foundation
of the legislative power, they will decide what are the proper
objects of it. The nature and ends of legislative power will limit
the exercise of it. This fundamental principle flows from the
very nature of our free republican governments, that no man
should be compelled to do what the laws do not require, nor
to refrain from acts which the laws permit. There are acts which
the federal or state legislature cannot do, without exceeding their
authority. There are certain vital principles in our free repub-
lican governments which will determine and overrule an apparent
and flagrant abuse of legislative power; as to authorize manifest
injustice by positive law; or to take away that security for per-
sonal liberty, or private property, for the protection whereof the
government was established. An act of the legislature (for I can-
not call it a law), contrary to the great first principles of the
social compact, cannot be considered a rightful exercise of legis-
lative authority. The obligation of a law in governments estab-
lished on express compact, and on republican principles, must be
determined by the nature of the power on which it is founded. A
few instances will suffice to explain what I mean. A law that
punished a citizen for an innocent action, or, in other words, for
an act which, when done, was in violation of no existing law; a law
that destroys, or impairs, "the lawful private contracts of citizens; a
law that makes a man a judge in his own cause; or a law that
takes property from A, and gives it to B. It is against all reason
and justice for a people to intrust a legislature with such powers;
and, therefore, it cannot be presumed that they have done it. The
genius, the nature, and the spirit of our state governments amount
to a prohibition of such acts of legislation; and the general prin-
ciples of law and reason forbid them. The legislature may enjoin,
permit, forbid and punish; they may Declare new crimes, and
establish rules of conduct for all its citizens in future cases; they
may command what is right, and prohibit what is wrong; but they
cannot change innocence into guilt, or punish innocence as a
crime; or violate the right of an antecedent lawful private con-
tract; or the right of private property. To maintain that our
federal or state legislature possesses such powers, if they had
not been expressly restrained, would, in my opinion, be a political
heresy altogether inadmissible in our free republican governments.
All the restrictions contained in the constitution of the United
CALDER v. BULL. 375
States, on the power of the state legislatures, were provided in
favor of the authority of the federal government. The prohibi-
tion against their making any ex post facto laws was introduced
for greater caution, and very probably arose from the knowledge
that the parliament of Great Britain claimed and exercised a power
to pass such laws, under the denomination of bills of attainder,
or bills of pains and penalties; the first inflicting capital, and the
other less punishment. These acts were legislative judgments;
and an exercise of judicial power. Sometimes they respected the
crime, by declaring acts to be treason which were not treason when
committed; 1 at other times they violated the rules of evidence, to
supply a deficiency of legal proof, by admitting one witness, when
the existing law required two; by receiving evidence without
oath; or the oath of the wife against the husband; or other tes-
timony which the courts of justice would not admit; 2 at other
times they inflicted punishments where the party was not by law
liable to any punishment; 3 and in other cases they inflicted
greater punishment than the law annexed to the offense.* The
ground for the exercise of such legislative power was this, that
the safety of the kingdom depended on the death, or other punish-
ment, of the offender; as if traitors, when discovered, could be
so formidable, or the government so insecure. With very few
exceptions, the advocates of such laws were stimulated by ambi-
tion, or personal resentment and vindictive malice. To prevent
such, and similar acts of violence and injustice, I believe the
federal and state legislatures were prohibited from passing any
bill of attainder, or any ex post facto law.
The constitution of the United States, art. 1, s. 9, prohibits the
legislature of the United States from passing any ex post facto
law; and in sec. 10 lays several restrictions on the authority of
the legislatures of the several States; and among them, "that no
State shall pass any ex post facto law."
It may be remembered that the legislatures of several of the
States, to wit, Massachusetts, Pennsylvania, Delaware, Maryland,
and North and South Carolina, are expressly prohibited, by their
state constitutions, from passing any ex post facto law.
I shall endeavor to show what law is to be considered an ex
post facto law, within the words and meaning of the prohibition
1 The case of the Earl of Straf- endon, 1667, 19 Car., 2, c. 10; and
ford, in 1640. of Bishop Atterbury, in 1723, 9
2 The case of Sir John Fenwick, Geo. I., c. 17.
in 1696. 4 The Coventry Act, in 1670, 22
s The banishment of Lord Clar- & 23 Car., 2, c. 1.
376 . CASES ON CONSTITUTIONAL LAW.
in the federal constitution. The prohibition, "that no State shall
pass any ex post facto law," necessarily requires some explana-
tion; for naked and without explanation it is unintelligible, and
means nothing. Literally it is only that a law shall not be passed
concerning, and after the fact, or thing done, or action commit-
ted. I would ask, what fact; of what nature or kind; and by
whom done? That Charles I, king of England, was beheaded;
that Oliver Cromwell Avas protector of England; that Louis XVI,
late king of France, was guillotined, are all facts that have hap-
pened, but it would be nonsense to suppose that the States were
prohibited from making any law after either of these events, and
with reference thereto. The prohibition in the letter is not to
pass any law concerning and after the fact, but the plain and
obvious meaning and intention of the prohibition is this, that the
legislatures of the several States shall not pass laws after a fact
done by a subject, or citizen, which shall have relation to such
fact, and shall punish him for having done it. The prohibition,
considered in this light, is an additional bulwark in favor of the
personal security of the subject, to protect his person from punish-
ment by legislative acts, having a retrospective operation. I do
not think it was inserted to secure the citizen in his private rights,
of either property or contracts. The prohibitions not to make
anything but gold and silver coin a tender in payment of debts,
and not to pass any law impairing the obligation of contracts,
were inserted to secure private rights; but the restriction not to
pass any ex post facto law, was to secure the person of the subject
from injury or punishment, in consequence of such law. If the
prohibition against making ex post facto laws was intended to
secure personal rights from being affected or injured by such laws,
and the prohibition is sufficiently extensive for that object, the
other restraints I nave enumerated were unnecessary, and there-
fore improper, for both of them are retrospective.
I will state what laws I consider ex post facto laws, within the
words and the 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 aggravates a crime, or makes it greater than
it was, when committed. 3d. Every law that changes the punish-
ment, and inflicts a greater punishment than the law annexed to
the crime, when committed. 4th. Every law that alters the legal
rules of evidence, and receives less or different testimony than
the law required at the time of the commission of the offense,
in order to convict the offender. All these and similar laws are
C ALDER v. BULL. 377
manifestly unjust and oppressive. In my opinion, the true dis-
tinction is between ex post facto 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 vest-
ed, agreeably 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 community, and also
of individuals, relate to a time antecedent to their commence-
ment; 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
punishment, 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 statute of limitations, or to excuse acts which were
unlawful, and before committed, and the like, is retrospective.
But such laws may be proper or necessary, as the case may be.
There is a great and apparent difference between making an un-
lawful act lawful, and the making an innocent action criminal,
and punishing it as a crime. The expressions "ex post facto laws"
are technical; they had been 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 pre-
cisely in the same light I have done. His opinion is confirmed by
his successor, Mr. Wooddeson, and by the author of the Federalist,
whom I esteem superior to both, for his extensive and accurate
knowledge of the true principles of government.
I also rely greatly on the definition, or explanation of ex post
facto laws, as given by the eonventions of Massachusetts, Mary-
land, and North Carolina, in their several constitutions, or forms
of government.
In the declaration of rights, by the convention of Massachusetts,
part first, section 24th, "Laws made to punish actions done be-
fore the existence of such laws, and which have not been declared
crimes by preceding laws, are unjust, &c."
In the declaration of rights, by the convention of Maryland,
article 15th, "Retrospective laws punishing facts committed before
378 CASES ON CONSTITUTIONAL LAW.
the existence of such laws, and by them only declared criminal,
are oppressive, &c."
In the declaration of rights by the convention of North Caro-
lina, article 24th, I find the same definition, precisely in the same
words as in the Maryland constitution.
In the declaration of rights by the convention of Delaware, ar-
ticle llth, the same definition was clearly intended, but inaccu-
rately expressed; by saying, "laws punishing offenses (instead of
actions, or facts) committed before the existence of such laws, are
oppressive, &c."
I am of opinion, that the fact, contemplated by the prohibi-
tion, and not to be affected by a subsequent law, was some fact
to be done by a citizen or subject.
In 2 Lord Raymond, 1352, Raymond, J., called the stat. 7
Geo. 1, stat. 2, pt. 8, about registering contracts for South Sea
stock, an ex post facto law; because it affected contracts made be-
fore the statute.
In the present case, there is no fact done by Bull and wife,
plaintiffs in error, that is in any manner affected by the law or
resolution of Connecticut; it does not concern, or relate to, any
act done by them. The decree of the court of probate of Hartford,
on the 21st March, in consequence of which Calder and wife
claim a right to the property in question, was given before the
said law or resolution, and in that sense was affected and set aside
by it; and in consequence of the law allowing a hearing and a
decision in favor of the will, they have lost what they would have
been entitled to, if the law or resolution, and the decision in con-
sequence thereof, had not been made. The decree of the court
of probate is the only fact on which the law or resolution operates.
In my judgment the case of the plaintiffs in error is not within
the letter of the prohibition; and, for the reasons assigned, I am
clearly of opinion, that it is not within the intention of the pro-
hibition; and if within the intention, but out of the letter, I
should not, therefore consider myself justified to continue it within
the prohibition, and therefore that the whole was void.
It was argued by the counsel for the plaintiffs in error, that
the legislature of Connecticut had no constitutional power to
make the resolution, or law, in question, granting a new hear-
ing, &c.
Without giving an opinion, at this time, whether this court
has jurisdiction to decide that any law made by congress, con-
trary to the constitution of the United States, is void, I am fully
satisfied that this court has no jurisdiction to determine that any
CALDER v. BULL. 379
law of any state legislature, contrary to the constitution of such
State, is void. Further, if this court had such jurisdiction, yet it
does not appear to me, that the resolution, or law, in question, is
contrary to the charter of Connecticut, or its constitution, which
is said by counsel to be composed of its charter, acts of assembly,
and usages and customs. I should think that the courts of Con-
necticut are the proper tribunals to decide whether laws contrary
to the constitution thereof are void. In the present case they have,
both in the inferior and superior courts, determined that the reso-
lution, or law, in question, was not contrary to either their State
or the federal constitution.
To show that the resolution was contrary to the constitution of
the United States, it was contended that the words, ex post facto
law, have a precise and accurate meaning, and convey but one idea
to professional men, which is, "by matter of after fact; by some-
thing after the fact." And Co. Litt., 241; Fearne's Cont. Eem.
(old ed.), 175 and 203; Powell on Devises, 113, 133, 134, were
cited; and the table to Coke's Reports (by Wilson), title ex post
facto, was referred to. There is no doubt that a man may be a
trespasser from the beginning, by matter of 'after fact; as where
an entry is given by law, and the party abuses it; or where the
law gives a distress, and the party kills, or. works the distress.
I admit, an act unlawful in the beginning may, in some cases,
become lawful by matter of after fact.
I also agree that the words "ex post facto" have the meaning
contended for, and no other, in the cases cited, and in all similar
cases where they are used unconnected with, and without relation
to, legislative acts, or laws.
There appears to me a manifest distinction between the case
where one fact relates to, and affects another fact, as where an
after fact, by operation of law, makes a former fact either lawful
or unlawful; and the ease where a law made after a fact done, is
to operate on, and to affect such fact. In the first case both the
acts are done by private persons. In the second case the first
act is done by a private person, and the second act is done by
the legislature to affect the first act.
I believe that but one instance can be found in which a British
judge called a statute that affected contracts made before the
statute, an ex post facto law; but the judges of Great Britain
always considered penal statutes, that created crimes, or increased
the punishment of them., as ex post facto laws.
If the term ex post facto law is to be construed to include and
to prohibit the enacting any law after a fact, it will greatly re-
380 CASES ON CONSTITUTIONAL LAW.
strict the power of the federal and state legislatures; and the
consequences of such a construction may not be foreseen.
If the prohibition to make no ex post facto law extends to all
laws made after the fact, the two prohibitions, not to make any-
thing but gold and silver coin a tender in- payment of debts,
and not to pass any law impairing the obligation of contracts, were
improper and unnecessary.
It was further urged, that if the provision does not extend to
prohibit the making any law after a fact, then all choses in action,
all lands by devise, all personal property by bequest or distribu-
tion, by elegit, by execution, by judgments, particularly on torts,
will be unprotected from the legislative power of the States;
rights vested may be divested at the will and pleasure of the state
legislatures; and, therefore, that the true construction and mean-
ing of the prohibition is, that the States pass no law >to deprive
a citizen of any right vested in him by existing laws.
It is not to be presumed that the federal or state legislatures
will pass laws to deprive citizens of rights vested in them by exist-
ing laws; unless for the benefit of the whole community; and
on making full satisfaction. The restraint against making any
ex post facto laws was not considered, by the framers of the con-
stitution, as extending to prohibit the depriving a citizen even
of a vested right to property; or the provision, "that private prop-
erty should not be taken for public use, without just compensa-
tion," was unnecessary.
It seems to me that the right of property, in its origin, could
only arise from compact express, or implied, and I think it the
better opinion, that the right, as well as the mode or manner
of acquiring property, and of alienating or transferring, inheriting
or transmitting it, is conferred by society, is regulated by civil in-
stitution, and is always subject to the rules prescribed by posi-
tive law. When I say that a right is vested in a citizen, I mean,
that he has the power to do certain actions, or to possess certain
things, according to the law of the land.
If any one has a right to property, such right is a perfect and
exclusive right; but no one can have such right before he has
acquired a better right to the property than any other person in
the world; a right, therefore, only to recover property cannot be
called a perfect and exclusive right. I cannot agree, that a right
to property vested in Calder and wife, in consequence of the decree
of the 21st of March, 1783, disapproving of the will of Morrison,
the grandson. If the will was valid, Mrs. Calder could have no
CUMMINGS v. STATE OF MISSOURI. 381
right, as heiress of Morrison, the physician; but if the will was
set aside, she had an undoubted title.
The resolution, or law, alone had no manner of effect on any
right whatever vested in Calder and wife. The resolution, or
law, combined with the new hearing, and the decision in virtue of
it, took away their right to recover the property in question. .But
when combined they took away no right of property vested in
Calder and wife; because the decree against the will, 21st March,
1783, did not vest in or transfer any property to them.
I am under a necessity to give a construction, or explanation
of the words, "ex post facto," because they have not any certain
meaning attached to them. But I will not go further than I feel
myself bound to do; and if I ever exercise the jurisdiction, I will
not decide any law to be void, but in a very clear case.
I am of the opinion that the decree of the supreme court of
errors of Connecticut be affirmed, with costs.
[JUSTICES PATERSON, IREDELL, and GUSHING delivered con-
curring opinions.]
CUMMINGS v. THE STATE OF MISSOUEI.
4 Wallace, 277. Decided 1866.
[The facts are sufficiently stated in the opinion of the court.]
ME. JUSTICE FIELD delivered the opinion of the court.
This case comes before us on a writ of error to the Supreme
Court of Missouri, and involves a consideration of the test oath
imposed by the constitution of that State. The plaintiff in error
is a priest of the Roman Catholic Church, and was indicted and
convicted in one of the circuit courts of the State of the crime
of teaching and preaching as a priest and minister of that relig-
ious denomination without having first taken the oath, and was
sentenced to pay a fine of five hundred dollars, and to be com-
mitted to jail until the same was paid. On appeal to the Supreme
Court of the State, the judgment was affirmed.
The oath prescribed by the constitution, divided into its sep-
arable parts, embraces more than thirty distinct affirmations or
tests. Some of the acts against which it is directed, constitute
offenses of the highest grade, to which, upon conviction, heavy
penalties are attached. Some of the acts have never been classed
as offenses in the laws of any State, and some of the acts, under
382 CASES ON CONSTITUTIONAL LAW.
many circumstances, would not even be blameworthy. It requires
the affiant to deny not only that he has ever "been in armed hos-
tility to the United States, or to the lawful authorities thereof,"
but, among other things, that he has ever, "by act or word," man-
ifested his adherence to the cause of the enemies of the United
States, foreign or domestic, or his desire for their triumph over
the arms of the United States, or his sympathy with those en-
gaged in rebellion, or has ever harbored or aided any person en-
gaged in guerilla warfare against the loyal inhabitants of the
United States, or has ever entered or left the State for the pur-
pose of avoiding enrolment or draft in the military service of the
United States; or, to escape the performance of duty in the militia
of the United States, has ever indicated, in any terms, his disaffec-
tion to the government of the United States in its contest with
the Rebellion.
Every person who is unable to take this oath is declared incapa-
ble of holding, in the State, "any office of honor, trust, or profit
under its authority, or of being an officer, councilman, director,
or trustee, or other manager of any corporation., public or private,
now existing or hereafter established by its authority, or of act-
ing as a professor or teacher in any educational institution, or
in any common or other school, or of holding any real estate or
other property in trust for the use of any church, religious so-
ciety, or congregation."
And every person holding, at the time the constitution takes
effect, any of the offices, trusts, or positions mentioned, is re-
quired, within sixty days thereafter, to take the oath; and, if he
fail to comply with this requirement, it is declared that his office,
trust, or position shall ipso facto become vacant.
No person, after the expiration of the sixty days, is permitted,
without taking the oath, "to practice as an attorney or counsel-
lor-at-law, nor after that period can any person be competent,
as a bishop, priest, deacon, minister, elder, or other clergyman,
of any religious persuasion, sect, or denomination, to teach, preach,
or solemnize marriages."
Fine and imprisonment are prescribed as a punishment for
holding or exercising any of "the offices, positions, trusts, profes-
sions, or functions" specified, without having taken the oath; and
false swearing or affirmation in taking it is declared to be perjury,
punishable by imprisonment in the penitentiary.
The oath thus required is, for its severity, without any prece-
dent that we can discover. In the first place, it is retrospective;
it embraces all the past from this day; and, if taken years hence,
CUMMINGS v. STATE OF MISSOURI. 383
it will also cover all the intervening period. In its retrospective
feature we believe it is peculiar to this country. In England and
Trance there have been test oaths, but they were always limited
to an affirmation of present belief, or present disposition towards
the government, and were never exacted with reference to particu-
lar instances of past misconduct. In the second place, the oath
is directed not merely against overt and visible acts of hostility
to the government, but is intended to reach words, desires, and
sympathies, also. And, in the third place, it allows no distinction
between acts springing from malignant enmity and acts which may
have been prompted by charity, or affection, or relationship. If
one has ever expressed sympathy with any who were drawn into
the Rebellion, even if the recipients of that sympathy were con-
nected by the closest ties of blood, he is as unable to subscribe to
the oath as the most active and the most cruel of the rebels, and is
equally debarred from the offices of honor or trust, and the posi-
tions and employments specified.
But, as it was observed by the learned counsel who appeared on
behalf of the State of Missouri, this court cannot decide the case
upon the justice or hardship of these provisions. Its duty is to
determine whether they are in conflict with the Constitution of
the United States. On behalf of Missouri, it is urged that they
only prescribe a qualification for holding certain offices, and prac-
ticing certain callings, and that it is therefore within the power
of the State to adopt them. On the other hand, it is contended
that they are in conflict with that clause of the Constitution which
forbids any State to pass a bill of attainder or an ex post facto
law.
We admit the propositions of the counsel of Missouri, that the
States which existed previous to the adoption of the Federal Con-
stitution possessed originally all the attributes of sovereignty; that
they still retain those attributes, except as they have been sur-
rendered by the formation of the Constitution, and the amend-
ments thereto; that the new States, upon their admission into the
Union, became invested with equal rights, and were thereafter sub-
ject only to similar restrictions, and that among the rights re-
served to the States is the right of each^ State to determine the
qualifications for office, and the conditions upon which its citizens
may exercise their various callings and pursuits within its juris-
diction.
These are general propositions, and involve principles of the
highest moment. But it by no means follows that, under the
form of creating a qualification or attaching a condition, the States
384 CASES ON CONSTITUTIONAL LAW.
can in effect inflict a punishment for a past act which was not
punishable at the time it was committed. The question is not as
to the existence of the power of the State over matters of internal
police, but whether that power has been made in the present case
an instrument for the infliction of punishment against the inhibi-
tion of the Constitution.
Qualifications relate to the fitness or capacity of the party for
a particular pursuit or profession. Webster defines the term to
mean "any natural endowment or any acquirement which fits a
person for a place, office, or employment, or enables him to sus-
tain any character, with success. It is evident from the nature
of the pursuits and professions of the parties, placed under dis-
abilities by the constitution of Missouri, that many of the aots,
from the taint of which they must purge themselves, have no
possible relation to their fitness for those pursuits and professions.
There can be no connection between the fact that Mr. Cummings
entered or left the State of Missouri to avoid enrolment or draft
in the military service of the United States and his fitness to
teach the doctrines or administer the sacraments of his church; nor
can a fact of this kind or the expression of words of sympathy
with some of the persons drawn into the Rebellion constitute
any evidence of the unfitness of the attorney or counsellor to prac-
tice his profession, or of the professor to teach the ordinary
branches of education, or of the want of business knowledge or
business capacity in the manager of a corporation, or in any di-
rector or trustee. It is manifest upon the simple statement of
many of the acts and of the professions and pursuits, that there
is no such relation between them as to render a denial of the
commission of the acts at all appropriate as a condition of allow-
ing the exercise of the professions and pursuits. The oath could
not, therefore, have been required as a means of ascertaining
whether parties were qualified or not for their respective callings
or the trusts with which they were charged. It was required in
order to reach the person, not the calling. It was exacted, not
from any notion that the several acts designated indicated unfit-
ness for the callings, but because it was thought that the several
acts deserved punishment, and that for many of them there was
no way to inflict punishment except by depriving the parties, who
had committed them, of some of the rights and privileges of the
citizen.
The disabilities created by the constitution of Missouri must be
regarded as penalties they constitute punishment. We do not
agree with the counsel of Missouri that "to punish one is to de-
CUMMINGS v. STATE OF MISSOURI. 385
prive him of life, liberty, or property, and that to take from him
anything less than these is no punishment at all." The learned
counsel does not use these terms life, liberty, and property as
comprehending every right known to the law. He does not in-
clude under liberty freedom from outrage on the feelings as well
as restraints on the person. He does not include under property
those estates which one may acquire in professions, though they
are often the source of the highest emoluments and honors. The
deprivation of any rights, civil or political, previously enjoyed,
may be punishment, the circumstances attending and the causes
of the deprivation determining this fact. Disqualification from
office may be punishment, as in cases of conviction upon im-
peachment. Disqualification from the pursuits of a lawful
avocation, or from positions of trust, or from the privi-
lege of appearing in the courts, or acting as an execu-
tor, administrator, or guardian, may also, and often has been,
imposed as punishment. By statute 9 and 10, William III, chap.
32, if any person educated in or having made a profession
of the Christian religion, did "by writing, printing, teaching,
or advised speaking," deny the truth of the religion, or the divine
authority of the Scriptures, he was for the first offense rendered
incapable to hold any office or place of trust; and for the second,
he was rendered incapable of bringing any action, being guar-
dian, executor, legatee, or purchaser of lands, besides being sub-
jected to three years' imprisonment without bail. 1
By statute 1 George I, chap. 13, contempts against the king's
title, arising from refusing or neglecting to take certain pre-
scribed oaths, and yet acting in an office or* place of trust for
which they were required, were punished by incapacity to hold any
public office; to prosecute any suit; to be guardian or execu-
tor; to take any legacy or deed of gift; and to vote at any elec-
tion for members of Parliament; and the offender was also sub-
ject to a forfeiture of five hundred pounds to any one who would
sue for the same. 2
"Some punishments," says Blackstone, "consist in exile of ban-
ishment, by abjuration of the realm or transportation; others in
loss of liberty by perpetual or temporary imprisonment. Some
extend to confiscation by forfeiture of lands or movables, or both,
or of the profits of lands for life; others induce a disability of
holding offices or employments, being heirs, executors, and the
like." 3
1 4 Black, 44. a id., 377.
2 Id., 124.
25
386 CASES ON CONSTITUTIONAL LAW.
In France, deprivation or suspension of civil rights, or of some
of them, and among these of the right of voting, of eligibility to
office, of taking part in family councils, of being guardian or
trustee, of bearing arms, and of teaching or being employed in
a school or seminary of learning, are punishments prescribed by
her code.
The theory upon which our political institutions rest is, that all
men have certain inalienable rights that among these are life,
liberty, and the pursuit of happiness; and that in the pursuit of
happiness all avocations, all honors, all positions, are alike open
to every one, and that in the protection of these rights all are
equal before the law. Any deprivation or suspension of any of
these rights for past conduct is punishment, and can be in no
otherwise defined.
Punishment not being, therefore, restricted, as contended
by counsel, to the deprivation of life, liberty, or property, but
also embracing deprivation or suspension of political or civil rights,
and the disabilities prescribed by the provisions of the Missouri
constitution being in effect punishment, we proceed to consider
whether there is any inhibition in the Constitution of the United
States against their enforcement.
The counsel for Missouri closed his argument in this case by
presenting a striking picture of the struggle for ascendancy in
that State during the recent Kebellion between the friends and
the enemies of the Union, and of the fierce passions which that
struggle aroused. It was in the midst of the struggle that the
present constitution was framed, although itt was not adopted
by the people until the war had closed. It would have been
strange, therefore, had it not exhibited in its provisions some
traces of the excitement amidst which the convention held its
deliberations.
It was against the excited action of the States, under such in-
fluences as these, that the framers of the Federal Constitution
intended to guard. In Fletcher v. Peck, 4 Mr. Chief Justice Mar-
shall, speaking of such action, uses this language: "Whatever re-
spect might have been felt for the State sovereignties, it is not to
be disguised that the framers of the Constitution viewed with
some apprehension the violent acts which might grow out of the
feelings of the moment; and that the people of the United
States, in adopting that instrument, have manifested a determina-
tion to shield themselves and their property from the effects of
those sudden and strong passions to which men are exposed. The
* 6 Cranch, 137.
CUMMINGS v. STATE OF MISSOURI. 387
restrictions on the legislative power of the States are obviously
founded in this sentiment; and the Constitution of the United
States contains what may be deemed a bill of rights for the peo-
ple of each State."
"No State shall pass any bill of attainder, ex post facto law, or
law impairing the obligation of contracts."
A bill of attainder is a legislative act which inflicts punishment
without a judicial trial.
If the punishment be less than death, the act is termed a bill of
pains and penalties. Within the meaning of the Constitution, bills
of attainder include bills of pains and penalties. In these cases
the legislative body, in addition to its legitimate functions, exer-
cises the powers and office of judge; it assumes, in the language
of the text-books, judicial magistracy; it pronounces upon the
guilt of the party, without any of the forms or safeguards of trial;
it determines the sufficiency of the proofs produced, whether con-
formable to the rules of evidence or otherwise; and it fixes the
degree of punishment in accordance with its own notions of the
enormity of the offense.
"Bills of this sort," says Mr. Justice Story, "have been most
usually passed in England in times of rebellion, or gross subserv-
iency to the crown, or of violent political excitements; periods,
in which all nations are most liable (as well the free as the en-
slaved) to forget their duties, and to trample upon the rights and
liberties of others." 5
These bills are generally directed against individuals by name;
but they may be directed against a whole class. The bill against
the Earl of Kildare and others, passed in the reign of Henry
VIII, 6 enacted that "all such persons which be or heretofore have
been comforters, abettors, partakers, confederates, or adherents
unto the said" late earl, and certain other parties, who were named,
"in his or their false and traitorous acts and purposes, shall in like-
wise stand, and be attainted, adjudged, and convicted of high
treason;" and that "the same attainder, judgment, and convic-
tion against the said comforters, abettors, partakers, confeder-
ates, and adherents, shall be as strong and effectual in the law
against them, and every of them, as though they and every of
them had been specially, singularly, and particularly named by
their proper names and surnames in the said act."
These bills may inflict punishment absolutely, or may inflict
it conditionally.
s Commentaries, 1344. 28 Henry VIIL, chap. 18; 3
Stats, of the Realm, 694.
388 CASES ON CONSTITUTIONAL LAW.
The bill against the Earl of Clarendon, passed in the reign of
Charles the Second, enacted that the earl should suffer perpetual
exile, and be forever banished from the realm; and that if he
returned, or was found in England, or in any other of the king's
dominions, after the first of February, 1667, he should suffer the
pains and penalties of treason; with the proviso, however, that if
he surrendered himself before the said first day of February for
trial, the penalties and disabilities declared should be void and
of no effect. 7
"A British act of Parliament," to cite the language of the Su-
preme Court of Kentucky, "might declare, that if certain individ-
uals, or a class of individuals, failed to do a given act by a named
day, they should be deemed to be, and treated as convicted felons
or traitors. Such an act comes precisely within the definition of
a bill of attainder, and the English courts would enforce it with-
out indictment or trial by jury." 8
If the clauses of the second article of the constitution of Mis-
souri, to which we have referred, had in terms declared that Mr.
Cummings was guilty, or should be held guilty, of having been in
armed hostility to Ihe United States, or of having entered that
State to avoid being enrolled or drafted into the military service
of the United States, and, therefore, should be deprived of the
right to preach as a priest of the Catholic Church, or to teach in
any institution of learning, there could be no question that the
clauses would constitute a bill of attainder within the meaning of
the Federal Constitution. If these clauses, instead of mentioning
his name, had declared that all priests and clergymen within the
State of Missouri were guilty of these acts, or should be held
guilty of them, and hence be subjected to the like deprivation,
the clauses would be equally open to objection. And, further, if
these clauses had declared that all such priests and clergymen
should be so held guilty, and be thus deprived, provided they did
not, by a day designated, do certain specified acts, they would be
no less within the inhibition of the Federal Constitution.
In all these cases there would be the legislative enactment cre-
ating the deprivation without any of the ordinary forms and
guards provided for the security of the citizen in the administra-
tion of justice by the established tribunals.
The results which would follow from clauses of the character
mentioned do follow from the clauses actually adopted. The dif-
7 Printed in 6 Howell's State Gaines v. Buford, 1 Dana, 510.
Trials, p. 391.
CUMMINGS v. STATE OF MISSOURI. 389
ference between the last case supposed and the case actually pre-
sented is one of form only, and not of substance. The existing
clauses presume the guilt of the priests and clergymen, and ad-
judge the deprivation of their right to preach or teach unless the
presumption be first removed by their expurgatory oath in other
words, they assume the guilt and adjudge the punishment condi-
tionally. The clauses supposed differ only in that they declare
the guilt instead of assuming it. The deprivation is effected
with equal certainty in the one case as it would be in the other,
but not with equal directness. The purpose of the lawmaker in
the case supposed would be openly avowed; in the case existing
it is only disguised. The legal result must be the same, for what
cannot be done directly cannot be done indirectly. The Consti-
tution deals with substance, not shadows. Its inhibition was lev-
eled at the thing, not the name. It intended that the rights
of the citizen should be secure against deprivation for past conduct
by legislative enactment, under any form, however disguised. If
the inhibition can be evaded by the form of the enactment, its
insertion in the fundamental law was a vain and futile proceed-
ing.
We proceed to consider the second clause of what Mr. Chief
Justice Marshall terms a bill of rights for the people of each
State the clause which inhibits 'the passage of an ex post facto
law.
By an ex post facto law is meant one which imposes a punish-
ment for an act which was not punishable at the time it was
committed; or imposes additional punishment to that then pre-
scribed; or changes the rules of evidence by which less or different
testimony is sufficient to convict than was then required.
In Fletcher v. Peck, Mr. Chief Justice Marshall defined an ex
post facto law to be one "which renders an act punishable in a
manner in which it was not punishable when it was committed."
"Such a law," said that eminent judge, "may inflict penalties on
the person, or may inflict pecuniary penalties which swell the
public treasury. The legislature is then prohibited from passing
a law by which a man's estate, or any part of it, shall be seized
for a crime, which was not declared by some previous law to render
him liable to that punishment. Why, then, should violence be
done to the natural meaning of words for the purpose of leaving
to the legislature the power of seizing for public use the estate of
an individual, in the form of a law annulling the title by which
he holds the estate? The court can perceive no sufficient grounds
for making this distinction. This rescinding act would have the
390 CASES ON CONSTITUTIONAL LAW.
effect of an ex post facto law. It forfeits the estate of Fletcher
for a crime not committed by himself, but by those from whom
he purchased. This cannot be effected in the form of an ex post
facto law, or bill of attainder; why, then, is it allowable in the
form of a law annulling the original grant?"
The act to which reference is here made was one passed by the
State of Georgia, rescinding a previous act, under which lands
had been granted. The rescinding act, annulling the title of the
grantees, did not, in terms, define any crimes, or inflict any pun-
ishment, or direct any judicial proceedings; yet, inasmuch as the
legislature was forbidden from passing any law by which a man's
estate could be seized for a crime, which was not declared such
by some previous law rendering him liable to that punishment, the
chief justice was of opinion that the rescinding act had the effect
of an ex post facto law, and was within (the constitutional prohi-
bition.
The clauses in the Missouri constitution, which are the subject
of consideration, do not, in terms, define any crimes, or declare
that any punishment shall be inflicted, but they produce the same
result upon the parties, against whom they are directed, as though
the crimes were defined and the punishment was declared. They
assume that there are persons in Missouri who are guilty of some
of the acts designated. They would have no meaning in the
constitution were not such the fact. They are aimed at past acts,
and not future acts. They were intended especially to operate
upon parties who, in some form or manner, by action or words,
directly or indirectly, had aided or countenanced Kebellion, or
sympathized with parties engaged in the Kebellion, or had en-
deavored to escape the proper responsibilities and duties of a
citizen in time of war; and they were intended to operate by de-
priving such persons of the right to hold certain offices and trusts,
and to pursue their ordinary and regular avocations. This de-
privation is punishment; nor is it any less so because a way is
opened for escape from it by the expurgatory oath. The framers
of the constitution of Missouri knew at the time that whole
classes of individuals would be unable to take the oath prescribed.
To them there is no escape provided; to them the deprivation
was intended to be, and is, absolute and perpetual. To make the
enjoyment of a right dependent upon an impossible condition is
equivalent to an absolute denial of the right under any condition,
and such denial, enforced for a past act, is nothing less than pun-
ishment imposed for that act. It is a misapplication of terms io
call it anything else.
GUMMING S v. STATE OF MISSOURI. 391
Now, some of the acts to which the expurgatory oath is di-
rected were not offenses at the time they were committed. It was
no offense against any law to enter or leave the State of Missouri
for the purpose of avoiding enrollment or draft in the military
service of the United States, however much the evasion of sucii
service might be the subject of moral censure. Clauses which
prescribe a penalty for an act of this nature are within the terms
of the definition of an ex post facto law "they impose a punish-
ment for an act not punishable at the time it was committed."
Some of the acts at which the oath is directed constituted high
offenses at the time they were committed, to which, upon convic-
tion, fine and imprisonment, or other heavy penalties, were at-
tached. The clauses which provide a further penalty for these
acts are also within the definition of an ex post facto law "they
impose additional punishment to that prescribed when the act
was committed."
And this is not all. The clauses in question subvert the pre-
sumptions of innocence, and alter the rules of evidence, which
heretofore, under the universally recognized principles of the
common law, have been supposed to be fundamental and un-
changeable. They assume that the parties are guilty; they call
upon the parties to establish their innocence; and they declare
that such innocence can be shown only in one way by an inqui-
sition, in the form of an expurgatory oath, into the consciences
of the parties.
The objectionable character of these clauses will be more ap-
parent if we put them into the ordinary form of a legislative act.
Thus, if instead of the general provisions in the constitution the
convention had provided as follows: Be it enacted, that all per-
sons who have been in armed hostility to the United States shall,
upon conviction thereof, not only be punished as the laws pro-
vided at the time the offenses charged were committed, but shall
also be thereafter rendered incapable of holding any of the offices,
trusts, and positions, and of exercising any of the pursuits men-
tioned in the second article of the constitution of Missouri; no
one would have any doubt of the nature of the enactment. It
would be an ex post facto law, and void; for it would add a new
punishment for an old offense. So, too, if the convention had
passed an enactment of a similar kind with reference to those acts
which do not constitute offenses. Thus, had it provided as fol-
lows: Be it enacted, that all persons who have heretofore, at any
time, entered or left the State of Missouri, with intent to avoid
enrollment or draft in the military service of the United States,
392 CASES ON CONSTITUTIONAL LAW.
shall, upon conviction thereof, be forever rendered incapable of
holding any office of honor, trust, or profit in the State, or of
teaching in any seminary of learning, or of preaching as a min-
ister of the gospel of any denomination, or of exercising any of
the professions or pursuits mentioned in the second article of the
constitution; there would be no question of the character of the
enactment. It would be an ex post facto law, because it would
impose a punishment for an act not punishable at the time it was
committed.
The provisions of the constitution of Missouri accomplish pre-
cisely what enactments like those supposed would have accom-
plished. They impose the same penalty, without the formality of
a judicial trial and conviction; for the parties embraced by the
supposed enactments would be incapable of taking the oath pre-
scribed; to them its requirement would be an impossible condi-
tion. Now, as the State, had she attempted the course supposed,
would have failed, it must follow that any other mode producing
the same result must equally fail. The provision of the Federal
Constitution, intended to secure the liberty of the citizen, can-
not be evaded by the form in which the power of the State is
exerted. If this were not so, if that which cannot be accom-
plished by means looking directly to the end, can be accom-
plished by indirect means, the inhibition may be evaded at pleasure.
No kind of oppression can be named, against which the framers
of the Constitution intended to guard, which may not be effected.
Take the case supposed by counsel that of a man tried for trea-
son and acquitted, or, if convicted, pardoned the legislature
may nevertheless enact thait, if the person thus acquitted or par-
doned does not take an oath that he never has committed the acts
charged against him, he shall not be permitted to hold any office
of honor or trust or profit, or pursue any avocation in the State.
Take the case before us; the constitution of Missouri, as we have
seen, excludes, on failure to take the oath prescribed by it, a large
class of persons within her borders from numerous positions and
pursuits; it would have been equally within the power of the
State to have extended the exclusion so as to deprive the parties,
who are unable to take the oath, from any avocation whatever in
the State. Take still another case: suppose that in the progress
of events, persons now in the minority in the State should obtain
the ascendancy, and secure the control of the government; noth-
ing could prevent, if the constitutional prohibition can be evaded,
the enactment of a provision requiring every person, as a condi-
tion of holding any position of honor or trust, or of pursuing any
CUMMINGS v. STATE OF MISSOURI. 393
avocation in the State, to take an oath thai he had never advo-
cated or advised or supported the imposition of the present expur-
gatory oath. Under this form of legislation the most flagrant in-
vasion of private rights, in periods of excitement, may be enacted,
and individuals, and even whole classes, may be deprived of polit-
ical and civil rights.
A question arose in New York, soon after the treaty of peace of
1783, upon a statute of that State, which involved a discussion of
the nature and character of these expurgatory oaths, when used
as a means of inflicting punishment for past conduct. The subject
was regarded as so important, and the requirement of the oath
such a violation of the fundamental principles of civil liberty, and
the rights of the citizen, that it engaged the attention of eminent
lawyers and distinguished statesmen of the time, and among others
of Alexander Hamilton. We will cite some passages of a paper
left by him on the subject, in which, with his characteristic full-
ness and ability, he examines the oath, and demonstrates that it
is not only a mode of inflicting punishment, but a mode in viola-
tion of all the constitutional guarantees, secured by the Kevolu-
tion, of the rights and liberties of the people.
"If we examine it" (the measure requiring the oath), said this
great lawyer, "with an unprejudiced eye, we must acknowledge,
not only that it was an invasion of the treaty, but a subversion
of one great principle of social security, to wit: that every man
shall be presumed innocent until he is proved guilty. This was
to invert the order of things; and instead of obliging the State
to prove the guilt, in order to inflict the penalty, it was to oblige
the citizen to establish his own innocence to avoid the penalty.
It was to excite scruples in the honest and conscientious, and to
hold out a bribe to perjury. ... It was a mode of inquiry
[as to] who had committed any of those crimes to which the
penalty of disqualification was annexed, with this aggravation,
that it deprived the citizen of the benefit of that advantage, which
he would have enjoyed by leaving, as in all other cases, the burden
of the proof upon the prosecutor.
"To place this matter in a still clearer light, let it be supposed
that, instead of the mode of indictment and trial by jury, the legis-
lature was to declare that every citizen who did not swear he had
never adhered to the King of Great Britain should incur all the
penalties which our treason laws prescribe. Would this not be a
palpable evasion of the treaty, and a direct infringement of the
Constitution? The principle is the same in both cases, with only
this difference in the consequences that in the instance already
394 CASES ON CONSTITUTIONAL LAW.
acted upon the citizen forfeits a part of his rights; in the one
supposed he would forfeit the whole. The degree of punishment
is all that distinguishes the cases. In either, justly considered, it
is substituting a new and arbitrary mode of prosecution to that
ancient and highly esteemed one recognized by the laws and con-
stitution of the State. I mean the trial by jury.
"Let us not forget that the Constitution declares that trial by
jury, in all cases in which it has been formerly used, should re-
main inviolate forever, and that the legislature should at no time
erect any new jurisdiction which should not proceed according to
the course of the common law. Nothing can be more repugnant
to the true genius of the common law than such an inquisition as
has been mentioned into the consciences of men. ... If
any oath with retrospect to past conduct were to be made the
condition on which individuals, who have resided within the Brit-
ish lines, should hold their estates, we should immediately see
that this proceeding would be tyrannical, and a violation of the
treaty; and yet, when the same mode is employed <to divert -that
right, which ought to be deemed still more sacred, many of us
are so infatuated as to overlook the mischief.
"To say that the persons who will be affected by it have previ-
ously forfeited that right, and that, therefore, nothing is taken
away from them, is a begging of the question. How do we know
who are the persons in this situation? If it be answered, this is
the mode taken to ascertain it the objection returns 'tis an
improper mode; because it puts the most essential interests of the
citizen upon a worse footing than we should be willing to tolerate
where inferior interests were concerned; and because, to elude the
treaty, it substitutes for the established and legal mode of investi-
gating crimes and inflicting forfeitures, one that is unknown to
the Constitution, and repugnant to the genius of our law." . . .
The judgment of the Supreme Court of Missouri must be re-
versed, and the cause remanded, with directions to enter a judg-
ment reversing the judgment of the Circuit Court, and directing
that court to discharge the defendant from imprisonment, and suf-
fer him to depart without delay. And it is so ordered.
The CHIEF JUSTICE, and MESSRS. JUSTICES SWAYNE, DAVIS,
and MILLER dissented. . . .
NOTE. The case of Ex parte Garland, 4 Wallace, 333, presented
a similar state of facts, and the dissenting opinion of Justice
Miller, 4 "Wallace, 382, applies to both these cases.
X. IMPAIRMENT OF CONTRACTS.
FLETCHER v. PECK.
6 Cranch, 87. Decided 1810.
ERROH to the circuit court of the United States for the district
of Massachusetts, in an action of covenant brought by Fletcher
againi__Eeek. . . '.
March 16, 1810. MARSHALL, C. J., delivered the opinion of the
court as follows:
The pleadings being now amended, this cause comes on again
to be heard on sundry_demurrers, and on a. special verdict.
This suit was instituted on several covenants contained in a
deed made by John Peck, the defendant in error, conveying to
Robert Fletcher, the plaintiff in error, certain lands which were
part of a large purchase made by James Gunn and others, in the
year 1795, from the State of Georgia, the contract for which was
made in the form of a bill passed by the legislature of that State.
The first count in the declaration set forth a breach in the
second covenant contained in the deed. The covenant is, "that
the legislature of the State of Georgia, at the time of passing the
act of sale aforesaid, had good right to sell and dispose of the same
in manner pointed out by the said act." The breach assigned is,
that the legislature had no power to sell.
The plea in bar sets forth the constitution of the State of
Georgia, and avers that the lands sold by the defendant to the
plaintiff, were within that State. It then sets forth the granting
act, and avers the power of the legislature to sell and dispose of
the premises as pointed out by the act.
To this plea the plaintiff below demurred, and the defendant
joined in demurrer.
That the legislature of Georgia, unless restrained by its own
constitution, possesses the power of disposing of the unappro-
priated lands within its own limits, in such manner as its own judg-
ment shall dictate, is a proposition not to be controverted. The
395
396 CASES ON CONSTITUTIONAL LAW.
only question, then, presented by this demurrer, for the consid-
eration of the court, is this, did the then constitution of the State
of Georgia prohibit the legislature to dispose of the lands, which
were the subject of this contract, in the manner stipulated by the
contract?
The question whether a law be void for its repugnancy to the
constitution, is, at all times, a question of much delicacy, which
ought seldom, if ever, to be decided in the affirmative, in a doubt-
ful case. The court, when impelled by duty to render such a
judgment, would be unworthy of its station, could it be unmind-
ful of the solemn obligations which that station imposes. _But
it is not on slight implication and vague conjecture that the leg-
islature is to be pronounced to have transcended its powers, and
its acts to be considered as void. The opposition between the
constitution and the law should be such that the judge feels a
clear and strong conviction of their incompatibility with each
other.
In this case the court can perceive no such opposition. In the
constitution of Georgia, adopted in the year 1789, the court can
perceive no restriction on the legislative power, which inhibits the
passage of the act of 1795. They cannot say that, in passing
that act, the legislature has transcended its powers, and violated
the constitution.
In overruling the demurrer, therefore, to the first plea, the cir-
cuit court committed no error.
The third covenant is, that all the title which the State of
Georgia ever had in the premises had been legally conveyed to^
John Peck, the grantor.
The second count assigns, in substance, as a breach of this
covenant, that the original grantees from the State of Georgia
promised and assured divers members of the legislature, then sit-
ting in general assembly, that if the said members would assent
to, and vote for, the passing of the act, and if the said bill should
pass, such members should have a share of, and be interested in,
all the lands purchased from the said State by virtue of such
law. And that divers of the said members, to whom the said
promises were made, were unduly influenced thereby, and, under
such influence, did vote for the passing of the said bill; by rea-
son whereof the said law was a nullity, &c., and so the title of the
State of Georgia did not pass to the said Peck, &c.
The plea to this count, after protesting that the promises it
alleges were not made, avers, that until after the purchase made
from the original grantees by James Greenleaf, under whom the
FLETCHER v. PECK. 397
said Peck claims, neither the said James Greenleaf, nor the said
Peck, nor any of the mesne vendors between the said Greenleaf
and Peck, had any notice or knowledge that any such promises or
assurances were made by the said original grantees, or either of
them, to any of the members of the legislature of the State of
Georgia.
To this plea the plaintiff demurred generally, and the defend-
ant joined in the demurrer.
That corruption should find its way into the governments of
our infant republics, and contaminate the very source of legisla-
tion, or that impure motives should contribute to the passage of
a law, or the formation of a legislative contract, are circumstances
most deeply to be deplored. How far a court of justice would, in
any case, be competent, on proceedings instituted by the State
itself, to vacate a contract thus formed, and to annul rights ac-
quired under that contract, by third persons having no notice of
the improper means by which it was obtained, is a question which
the court would approach with much circumspection. It may
well be doubted how far the validity of a law depends upon the
motives of its framers, and how far the particular inducements,
operating on members of the supreme sovereign power of a State,
to the formation of a contract by that power, are examinable in a
court of justice. If the principle be conceded, that an act of the
supreme sovereign power might be declared null by a court in
consequence of the means which procured it, still would there be
much difficulty in saying to what extent those means must be !
applied to produce this effect. Must it be direct corruption, or
would interest or undue influence of any kind be sufficient? Must
the vitiating cause operate on a majority, or on what number of
the members? Would the act be null, whatever might be the wish
of the nation, or would its obligation or nullity depend upon the
public sentiment?
If the majority of the legislature be corrupted, it may well be
doubted whether it be within the province of the judiciary to
control their conduct, and, if less than a majority act from impure
motives, the principle by which judicial interference would be ;
regulated is not clearly discerned.
Whatever difficulties this subject might present, when viewed
under aspects of which it may be susceptible, this court can per-
ceive none in the particular pleadings now under consideration.
This is not a bill brought by the State of Georgia to annul the
contract, nor does it appear to the court, by this count, that the
State of Georgia is dissatisfied with the sale that has been made.
398 CASES ON CONSTITUTIONAL LAW.
The case, as made out in the pleadings, is simply this. One indi-
vidual who holds lands in the State of Georgia, under a deed
covenanting that the title of Georgia was in the grantor, brings
an action of covenant upon this deed, and assigns, as a breach, ;
that some of the members of the legislature were induced to vote ;
.in favor of the law which constituted the contract, by being
.promised an interest in it, and that therefore the act is a mere"
Wullity.
This solemn question cannot be brought thus collaterally and
incidentally before the court. It would be indecent in the ex-
treme, upon a private contract between two individuals, to enter
into an inquiry respecting the corruption of the sovereign power
of a State. If the title be plainly deduced from a legislative act,
which the legislature might constitutionally pass, if the act be
clothed with all the requisite forms of a law, a court, sitting as a
court of law, cannot sustain a suit brought by one individual
against another founded on the allegation that the act is a nullity,
in consequence of the impure motives which influenced certain
members of the legislature which passed the law.
I The circuit court, therefore, did right in overruling this de-
murrer.
The fourth covenant in the deed is, that the title to the prem-
ises has been in no way constitutionally or legally impaired by
virtue of any subsequent act of any subsequent legislature of the
State of Georgia.
The third count recites the undue means practised on certain
members of the legislature, as stated in the second count, and
then alleges that, in consequence of these practices and of other
causes, a subsequent legislature passed an act annulling and re-
scinding the law under which the conveyance to the original
grantees was made, declaring that conveyance void, and asserting
the title of the State to the lands it contained. The count pro-
ceeds to recite at large this rescinding act, and concludes with
averring that, by reason of this act, the title of the said Peck in
the premises was constitutionally and legally impaired, and ren-
dered null and void.
After protesting as before that no such promises were made as
stated in this count, the defendant again pleads that himself and
the first purchaser under the original grantees, and all interme-
diate holders of the property, were purchasers without notice.
To this plea there is a demurrer and joinder.
The importance and the difficulty of the questions presented
by these pleadings, are deeply felt by the court.
FLETCHER v. PECK. 399
The lands in controversy vested absolutely in James Gimn and
others, the original grantees, by the conveyance of the governor,
made in pursuance of an act of assembly to which the legislature
was fully competent. Being thus in full possession of the legal
estate, they, for a valuable consideration, conveyed portions of
the land to those who were willing to purchase. If the original
transaction was infected with fraud, these purchasers did not par-
ticipate in it, and had no notice of it. They were innocent. Yet
the legislature of Georgia has involved them in the fate of the
first parties to the transaction, and, if the act be valid, has anni-,
hilated their rights also.
The legislature of Georgia was a party to this transaction; and
for a party to pronounce its own deed invalid, whatever cause may
be assigned for its invalidity, must be considered as a mere act of
power which must find its vindication in a train of reasoning not
often heard in courts of justice.
But the real party, it is said, are the people, and when their
agents are unfaithful, the acts of those' agents cease to be
obligatory.
It is, however, to be recollected that the people can act only by
these agents, and that, while within the powers conferred on them,
their acts must be considered as the acts of the people. If the
agents be corrupt, others may be chosen, and if their contracts be
examinable, the common sentiment, as well as common usage of
mankind, points out a mode by which this examination may be
made, and their validity determined.
If the legislature of Georgia was not bound to submit its pre-
tensions to those tribunals which are established for the security
of property, and to decide on human rights, if it might claim to
itself the power of judging in its own case, yet there are certain
great principles of justice, whose authority is universally acknowl-
edged, that ought not to be entirely disregarded.
If the legislature be its own judge in its own case, it would j
seem equitable that its decisions should be regulated by those I
rules which would have regulated the decision of a judicial tri-
bunal. The question was, in its nature, a question of title, and
the tribunal which decided it was either acting in the character
of a court of justice, and performing a duty usually assigned to a
court, or it was exerting a mere act of power in which it was con-
trolled only by its own will.
If a suit be brought to set aside a conveyance obtained by fraud,
and the fraud be clearly proved, the conveyance will be set aside,
as between the parties; but the rights of third persons, who are
V
400 CASES ON CONSTITUTIONAL LAW.
purchasers without notice, for a valuable consideration, cannot be
disregarded. Titles, which, according to every legal test, are per-
fect, are acquired with that confidence which is inspired by the
opinion that the purchaser is safe. If there be any concealed de-
fect, arising from the conduct of those who had held the property
long before he acquired it, of which he had no notice, that con-
cealed defect cannot be set up against him. He has paid his
money for a title good at law; he is innocent, whatever may be
the guilt of others, and equity will not subject him to the pen-
alties attached to that guilt. All titles would be insecure, and the
intercourse between man and man would be very seriously ob-
structed, if this principle be overturned.
A court of chancery, therefore, had a bill been brought to set
aside the conveyance made to James Gunn and others, as being
obtained by improper praetices with the legislature, whatever
might have been its decision as respected the original grantees,
would have been bound, by its own rules, and by the clearest prin-
ciples of equity, to leave unmolested those who were purchasers,
without notice, for a valuable consideration.
If the legislature felt itself absolved from those rules of prop-
erty which are common to all the citizens of the United States,
and from those principles of equity which are acknowledged in
all our courts, its act is to be supported by its power alone, and
the same power may divest any other individual of his lands, if it
shall be the Mill of the legislature so to exert it.
It is not intended to speak with disrespect of the legislature of
Georgia, or of its acts. Far from it. The question is a general
question, and is treated as one. For although such powerful ob-
jections to a legislative grant, as are alleged against this, may not
again exist, yet the principle, on which alone this rescinding act
is to be supported, may be applied to every case to which it shall be
the will of any legislature to apply it. The principle is this: that
a legislature may, by its_own act, divest the vested estate of any
man whatever, for reasons which shall, by itself, be deemed suf-
ficient.
In this case the legislature may have had ample proof that the
original grant was obtained by practices which can never be too
much reprobated, and which would have justified its abrogation so
far as respected those to whom crime was imputable. But the
grant, when issued, conveyed an estate in fee-simple to the grantee,
clothed with all the solemnities which law can bestow. This estate
was transferable; and those who purchased parts of it were not
stained by that guilt which infected the original transaction.
FLETCHER v. PECK. 401
Their case is not distinguishable from the ordinary case of pur-
chasers of a legal estate without knowledge of any secret fraud
which might have led to the emanation of the original grant.
According to the well-known course of equity, their rights could
not be affected by such fraud. Their situation was the same,
their title was the same, with that of every other member of the
community who holds land by regular conveyances from the orig-
inal patentee.
Is the power of the legislature competent to the annihilation of
such title, and to a resumption of the property thus held?
The principle asserted is, that one legislature is competent to
repeal any act which a former legislature was competent to pass;
and that one legislature cannot abridge the powers of a succeed-
ing legislature.
The correctness of this principle, so far as respects general leg-
islation, can never be controverted. But if an act be done under
a law, a succeeding legislature cannot undo it. The past cannot
be recalled by the most absolute power. Conveyances have been
made, those conveyances have vested legal estates, and, if those
estates may be seized by the sovereign authority, still, that they y
originally vested is a fact, and cannot cease to be a fact.
When, then, a law is in its nature a contract, when absolute
rights have vested under that contract, a repeal of the law cannot
divest those rights; and the act of annulling them, if legitimate,
is rendered so by a power applicable to the case of every individual
in the community.
It may well be doubted whether the nature of society and of
government does not prescribe some limits to the legislative power;
and if any be prescribed, where are they to be found, if the prop-
erty of an individual, fairly and honestly acquired, may be seized
without compensation?
To the legislature all legislative power is granted; but the ques-
tion, whether the act of transferring the property of an individual
to the public, be in the nature of the legislative power, is well
worthy of serious reflection.
It is the peculiar province of the legislature to prescribe general,
rules for the government of society; the application of those
rules to individuals in society would seem to be the duty of other
departments. How far the power of giving the law may involve
every other power, in cases where the constitution is silent, never
has been, and perhaps never can be, definitely stated.
The validity of this rescinding act, then, might well be doubted,
were Georgia a single sovereign power. But Georgia cannot be
26
402 CASES ON CONSTITUTIONAL LAW.
viewed as a single, unconnected, sovereign power, on whose legis-
lature no other restrictions are imposed than may be found in its
own constitution. She is a part of a large empire; she is a mem-
ber of the American Union; and that union has a constitution the
supremacy of which all acknowledge, and which imposes limits to
the legislatures of the several States, which none claim a right to
pass. The constitution of the United States declares that no State
shall pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts.
i Does the case now under consideration come within this pro-
hibitory section of the constitution?
\ In considering this very interesting question, we immediately
ask ourselves what is ja, contract? Is a grant a contract?
A contract is a compact between two or more parties, and is
either executory or executed. An executory contract is one in
which a party binds himself to do, or not to do, a particular thing;
such was the law under which the conveyance was made by the
governor. A contract executed is one in which the object of con-
tract is performed; and this, says Blackstone, differs in nothing
from a grant. The contract between Georgia and the purchasers
was executed by the grant. A contract executed, as well as one
which is executory, contains obligations binding on the parties. A
grant, in its own nature, amounts to "an extinguishment of the
right of the grantor, and implies a contract not to reassert that
right. A party is, therefore, always estopped by his own grant.
Since, then, in fact, a grant is a contract executed, the obliga-
tion of which still continues, and since the constitution uses the
general term contract, without distinguishing between those which
are executory and those which are executed, it must be con-
strued to comprehend the latter as well as the former. A law
annulling conveyances between individuals, and declaring that the
grantors should stand seized of their former estates, notwithstand-
ing those grants, would be as repugnant to the constitution as a
law discharging the vendors of property from the obligation of
executing their contracts by conveyances. It would be strange
if a contract to convey was secured by the constitution, while an
absolute conveyance remained unprotected.
If, under a fair construction of the constitution, grants are
comprehended under the term contracts, is a grant from the
State excluded from the operation of the provision? Is the clause
to, be considered as inhibiting the State from impairing the obli-
gation of contracts between two individuals, but as excluding
from that inhibition contracts made with itself?
FLETCHER v. PECK. 403
The words themselves contain no such distinction. They are
general, and are applicable to contracts of every description. If
contracts made with the State are to be exempted from their opera-
tion, the exception must arise from the character of the contracting
party, not from the words which are employed.
Whatever respect might have been felt for the state sovereign-
ties, it is not to be disguised that the framers of the constitution
viewed, with some apprehension, the violent acts which might
grow out of the feelings of the moment; and that the people of
the United States, in adopting that instrument, have manifested
a determination to shield themselves and their property from the
effects of those sudden and strong passions to which men are ex-
posed. The restrictions on the legislative power of the States are
obviously founded in this sentiment; and the Constitution of the
United States contains what may be deemed a bill of rights for
the people of each State.
No State shall pass any bill of attainder, ex post facto law, or
law impairing the obligation of contracts.
A bill of attainder may affect the life of an individual, or may
confiscate his property, or may do both.
In this form the power of the legislature over the lives and
fortunes of individuals is expressly restrained. What motive, then,
for implying, in words which import a general prohibition to im-
pair the obligation of contracts, an exception in favor of the right
to impair the obligation of those contracts into which the State
may enter?
The State legislatures can pass no ex post facto law. An ex
post facto law is one which renders an act punishable in a manner
in which it was not punishable when it was committed. Such a
law may inflict penalties on the person, or may inflict pecuniary
penalties which swell the public treasury. The legislature is then
prohibited from passing a law by which a man's estate, or any part
of it, shall be seized for a crime which was not declared, by some
previous law, to render him liable to that punishment. Why,
then, should violence be done to the natural meaning of words for
the purpose of leaving to the legislature the power of seizing, for
public use, the estate of an individual in the form of a law annul-
ling the title by which he holds that estate? The court can per-
ceive no sufficient grounds for making that distinction. This re- \
scinding act would have the effect of an ex post facto Idw. It
forfeits the estate of Fletcher for a crime not committed by him-
self, but by those from whom he purchased. This cannot be
effected in the form of an ex post facto law, or bill of attainder;
404 CASES ON CONSTITUTIONAL LAW.
why, then, is it allowable in the form of a law annulling the
original grant?
The argument in favor of presuming an intention to except a
case, not excepted by the words of the constitution, is susceptible
of some illustration from a principle originally engrafted in that
instrument, though no longer a part of it. The constitution, as
passed, gave the courts of the United States jurisdiction in suits
brought against individual States. A State, then, which violated
its own contract, was suable in the courts of the United States for
that violation. Would it have been a defense in such a suit to
say that the State had passed a law absolving itself from the con-
tract? It is scarcely to be conceived that such a defense could be
set up. And yet, if a State is neither restrained by the general
principles of our political institutions, nor by the words of the
constitution, from impairing the obligation of its own contracts,
such a defense would be a valid one. This feature is no longer
found in the constitution; but it aids in the construction of those
clauses with which it was originally associated.
It is, then, the unanimous opinion of the court, that, in this
case, the estate having passed into the hands of a purchaser for a)
valuable consideration, without notice, the State of Georgia was'
restrained, either by general principles which are common to our
free institutions, or by the particular provisions of the Constitu-j
tion of the United States, from passing a*law whereby the estate
of the plaintiff in the premises so purchased could be constituj
ionally and.lesrally im paired and rendered null and void.
In overruling the demurrer to the 3d plea, therefore, there is nd
error. . . .
The question, whether the vacant lands within the United States
became a joint property, or belonged to the separate States, was a
momentous question, which, at one time, threatened to shake the
American confederacy to its foundation. This important and
dangerous contest has been compromised, and the compromise is
not now to be disturbed.
It is the opinion of the court, that the particular land stated in
the declaration appears, from this special verdict, to lie within the
State of Georgia, and that the State of Georgia had power to
grant it.
Some difficulty was produced by the language of the covenant,
and of the pleadings. It was doubted whether a State can be
seized in fee of lands subject to the Indian title, and whether a
decision that they were seized in fee might not be construed to
STURGES v. CROWNINSHIELD. 405
amount to a decision that their grantee might maintain an eject-
ment for them, notwithstanding that title.
The majority of the court is of opinion that the nature of the
Indian title, which is certainly to be respected by all courts, until
it be legitimately extinguished, is not such as to be absolutely re-
pugnant to seizin in fee on the part of the State.
Judgment affirmed, with costs.
[Ms. JUSTICE JOHNSON delivered a separate opinion.]
STURGES v. CROWNINSHIELD.
4 Wheaton, 122. Decided 1819.
This was an action of assumpsit, brought -in the circuit court of
Massachusetts, against the defendant, as the maker of two prom-
issory notes, both dated at New York, on the 22d of March,
1811, for the sum of $771.86 each, and payable to the plaintiff,
one on the 1st of August, and the other on the 15th of August,
1811. The defendant pleaded his discharge under "An act for
the benefit of insolvent debtors and their creditors," passed by
the legislature of New York, the 3d day of April, 1811. After 1
stating the provisions of the said act, the defendant's plea averred '
his compliance with them, and that he was discharged, and a cer- I
tificate given to him the fifteenth day of February, 1812. To this
plea there was a general demurrer, and joinder. At the October
term of the circuit court, 1817, the cause came on to be argued
and heard on the said demurrer, and the following questions arose, )
to wit:
1. Whether, since the adoption of the constitution of the United \
States, any State has authority to pass a bankrupt law, or whether
the power is exclusively vested in the congress of the United j
States?
2. Whether the act of New York, passed the third day of April,
1811, and stated in the plea in this case, is a bankrupt act, within
the meaning of the constitution of the United States?
3. Whether the act aforesaid is an act or law impairing the
obligation of contracts, within the meaning of the constitution of
the United States?
4. Whether the plea is a good and sufficient bar of the plaint-
iff's action?
406 CASES ON CONSTITUTIONAL LAW.
And after hearing counsel upon the questions, the judges of
the circuit court were opposed in opinion thereupon; and upon
motion of the plaintiff's counsel, the questions were certified to
the supreme court, for their final decision. . . .
MARSHALL, C. J., delivered the opinion of the court.
This case is adjourned from the court of the United States, for
the first circuit and the district of Massachusetts, on several points
on which the judges of that court were divided, which are stated
in the record, for the opinion of this court. The first is:
Whether, since the adoption of the constitution of the United
States, any State has authority to pass a bankrupt law, or whether
the power is exclusively vested in the congress of the United
States? . . .
Without entering further into the delicate inquiry respecting
the precise limitations which the several grants of power to con-
gress, contained in the constitution, may impose on the state
legislatures, than is necessary for the decision of the question be-
fore the court, it is sufficient to say, that, until the power to pass
uniform laws on the subject of bankruptcies be exercised by con-
gress, the States are not forbidden to pass a bankrupt law, pro-
vided it contain no principle which violates the 10th section of
the first article of the constitution of the United States.
This opinion renders it totally unnecessary to consider the ques-
tion whether the law of New York is, or is not, a bankrupt law.
We proceed to the great question on which the cause must de-
pend. Does the law of New York, which is pleaded in this case,
impair the obligation of contracts, within the meaning of the
constitution of the United States? This act liberates the person
of the debtor, and discharges him from all liability for any debt
previously contracted, on his surrendering his property in the
manner it prescribes. In discussing the question whether a State
is prohibited from passing such a law as this, our first inquiry is
into the meaning of words in common use. What is the obliga-
tion of a contract? and what will impair it?
It would seem difficult to substitute words which are more in-
telligible, or less liable to misconstruction, than those which are
to be explained. A contract is an agreement in which a party
undertakes to do, or not to do, a particular thing. The law binds
him to perform his undertaking, and this is, of course, the obliga-
tion of his contract. In the case at bar, the defendant has given
/his promissory note to pay the plaintiff a sura of money on or
before a certain day. The contract binds him to pay that sum on
STURGES v. CROWNINSHIELD. 407
that day; and this is its obligation. Any law which releases a
pant of this obligation, m ' in the literal sense of the word, impair
it. Much more must a law impair it which makes it totally in-
valid, and entirely discharges it.
The words of the constitution, then, are express, and incapable
of being misunderstood. They admit of no variety of "construc-
tion, and are acknowledged to apply to that species of contract,
an engagement between man and man, for the payment of money,
which has been entered into by these parties. Yet the opinion
that this law is not within the prohibition of the constitution, has
been entertained by those who are entitled to great respect, and
has been supported by arguments which deserve to be seriously
considered.
It has been contended, that as a contract can only bind a man
to pay to the full extent of his property, it is an implied condition
that he may be discharged on surrendering the whole of it.
But it is not true that the parties have in view only the prop-
erty in possession when the contract is formed, or that its obliga-
tion does not extend to future acquisitions. Industry, talents,
and integrity, constitute a fund which is as confidently trusted as
property itself. Future acquisitions are, therefore, liable for con- ,'
tracts; and to release them from this liability impairs their obli- '
gation.
It lias been argued, that the States are not prohibited from
passing bankrupt laws, and that the essential principle of such
laws is to discharge the bankrupt from all past obligations; that
the States have been in the constant practice of passing insolvent
laws, such as that of New York, and if the framers of the con-
stitution had intended to deprive them of this power, insolvent
laws would have been mentioned in the prohibition; that the pre-
vailing evil of the times, which produced this clause in the consti-
tution, was the practice of emitting paper money, of making prop-
erty which was useless to the creditor a discharge of his debt, and
of changing the time of payment by authorizing distant install-
ments. Laws of this description, not insolvent laws, constituted,
it is said, the mischief to be remedied; and laws of this descrip-
tion, not insolvent laws, are within the true spirit of the pro-
hibition.
The constitution does not grant to the States the power of pass-
ing bankrupt laws, or any other power; but finds them in posses-
sion of it, and may either prohibit its future exercise entirely, or
restrain it so far as national policy may require. It has so far
restrained it as to prohibit the passage of any law impairing the
408 CASES ON CONSTITUTIONAL LAW.
obligation of contracts. Although, then, the States may, until
that power shall be exercised by congress, pass laws concerning
bankrupts, yet they cannot constitutionally introduce into such
laws a clause which discharges the obligations the bankrupt has
entered into. It is not admitted that without this principle, an
act cannot be a bankrupt law; and if it were, that admission would
not change the constitution, nor exempt such acts from its pro-
hibitions.
The argument drawn from the omission in the constitution to
prohibit the States from passing insolvent laws, admits of several
satisfactory answers. It was not necessary, nor would it have been
safe, had it even been the intention of the* framers of the consti-
tution to prohibit the passage of all insolvent laws, to enumerate
particular subjects to which the principle they intended to estab-
lish should apply. The principle was the inviolability of con-
tracts. This principle was to be protected in whatsoever form it
might be assailed. To what purpose enumerate the particular
modes of violation which should be forbidden, when it was in-
tended to forbid all? Had an enumeration of all the laws which
might violate contracts been attempted, the provision must have
been less complete, and involved in more perplexity than it now is.
[The plain and simple declaration, that no State shall pass any
/law impairing the obligation of contracts, includes insolvent laws
I and all other laws, so far as they infringe the principle the con-
' vention intended to hold sacred, and no further.
But a still more satisfactory answer to this argument is, that
the convention did not intend to prohibit the passage of all in-
solvent laws. To punish honest insolvency by imprisonment for
life, and to make this a constitutional principle, would be an
excess of inhumanity which will not readily be imputed to the
illustrious patriots who framed our constitution, nor to the people
who adopted it. The distinction between the obligation of a
contract, and the remedy given by the legislature to enforce that
obligation, has been taken at the bar, and exists in the nature of
things. Without impairing the obligation of the contract, the rem-
edy may certainly be modified as the wisdom of the nation shall
direct. Confinement of the debtor may be a punishment for not
performing his contract, or may be allowed as a means of inducing
him to perform it. But the State may refuse to inflict this punish-
ment, or may withhold this means, and leave the contract in full
force. Imprisonment is no part of the contract, and simply to re-
lease the prisoner does not impair its obligation.
The argument which has been pressed most earnestly at the bar,
STURGES v. CROWNINSHIELD. 409
is, that, although all legislative acts which discharge the obliga-
tion of a contract without performance, are within the very words
of the constitution, yet an insolvent act, containing this principle,
is not within its spirit, because such acts have been passed by
colonial and state legislatures from the first settlement of the coun-
try, and because we know from the history of the times, that the
mind of the convention was directed to other laws, which were
fraudulent in their character, which enabled the debtor to escape
from his obligation, and yet hold his property; not to this, which
is beneficial in its operation.
Before discussing this argument, it may not be improper to
premise that, although the spirit of an instrument, especially of a
constitution, is to be respected not less than its letter, yet the
spirit is to be collected chiefly from its words. It would be dan-
gerous in the extreme to infer from extrinsic circumstances, that
a case for which the words of an instrument expressly provide,
shall be exempted from its operation. Where words conflict with
each other, where the different clauses of an instrument bear upon
each other, and would be inconsistent unless the natural and
common import of words be varied, construction becomes neces-
sary, and a departure from the obvious meaning of words is justi-
fiable. But if, in any case, the plain meaning of a provision, not
contradicted by any other provision in the same instrument, is to
be disregarded, because we believe the framers of that instrument
could not intend what they say, it must be one in which the ab-
surdity and injustice of applying the provision to the case, would
be so monstrous that all mankind would, without hesitation, unite
in rejecting the application.
This is certainly not such a case. It is said the colonial and
state legislatures have been in the habit of passing laws of this
description for more than a century; that they have never been
the subject of complaint, and, consequently, could not be within
the view of the general convention.
The fact is too broadly stated. The insolvent laws of many,
indeed, of by far the greater number of the States, do not contain
this principle. They discharge the person of the debtor, but
leave his obligation to pay in full force. To this the constitution
is not opposed.
But, were it even true that this principle had been introduced
generally into those laws, it would not justify our varying the con-
struction of the section. Every State in the Union, both while
a colony and after becoming independent, had been in the prac-
tice of issuing paper money; yet this practice is, in terms, prohib-
410 CASES ON CONSTITUTIONAL LAW.
ited. If the long exercise of the power to emit bills of credit did
not restrain the convention from prohibiting its future exercise,
neither can it be said that the long exercise of the power to impair
the obligation of contracts, should prevent a similar prohibition.
It is not admitted that the prohibition is more express in the one
case than in the other. It does not, indeed, extend to insolvent
laws by name., because it is not a law by name, but a principle
which is to be forbidden; and this principle is described in as ap-
propriate terms as our language affords.
Neither, as we conceive, will any admissible rule of construc-
tion justify us in limiting the prohibition under consideration,
to the particular laws which have been described at the bar, and
which furnished such cause for general alarm. What were those
laws?
We are told they were such as grew out of the general distress
following the war in which our independence was established. To
relieve this distress paper money was issued; worthless lands,
and other property of no use to the creditor, were made a tender
in payment of debts; and the time of payment, stipulated in
the contract, was extended by law. These were the peculiar evils
of the day. So much mischief was done, and so much more was
apprehended, that general distrust prevailed, and all confidence
between man and man was destroyed. To laws of this description
therefore, it is said, the prohibition to pass laws impairing the
obligation of contracts ought to be confined.
Let this argument be tried by the words of the section under
consideration. Was this general prohibition intended to prevent
paper money*? We are not allowed to say so, because it is expressly
provided, that no State shall "emit bills of credit;" neither could
these words be intended to restrain the States from enabling
debtors to discharge their debts by the tender of property of no
real value to the creditor, because for that subject also particular
provision is made. Nothing but gold and silver coin can be made
a tender in payment of debts.
It remains to inquire, whether the prohibition under considera-
tion could be intended for the single case of a law directing that
judgments should be carried into execution by instalments?
This question will scarcely admit of discussion. If this was
the only remaining mischief against which the constitution in-
tended to provide, it would undoubtedly have been, like paper
money and tender laws, expressly forbidden. At any rate, terms
more directly applicable to the subject, more appropriately ex-
pressing the intention of the convention, would have been used.
STURGES v. CROWNINSHIELD. 411
It seems scarcely possible to suppose that the framers of the con-
stitution, if intending to prohibit only laws authorizing the pay-
ment of debts by instalments, would have expressed that inten-
tion by saying, "no State shall pass any law impairing the obliga-
tion of contracts." No men would so express such an intention.
Xo men would use terms embracing a whole class of laws, for the
purpose of designating a single individual of that class. No court
can be justified in restricting such comprehensive words to a par-
ticular mischief to which no allusion is made.
The fair, and we think, the necessary construction of the sen-
tence, requires, that we should give these words their full and
obvious meaning. A general dissatisfaction with that lax system
of legislation which followed the war of our Bevolution, undoubt-
edly directed the mind of the convention to this subject. It is
probable that laws such as those which have been stated in argu-
ment, produced the loudest complaints, were most immediately
felt. The attention of the convention, therefore, was particularly
directed to paper money, and to acts which enabled the debtor to
discharge his debt otherwise than was stipulated in the contract.
Had nothing more been intended, nothing more would have been
expressed. But, in the opinion of the convention, much more re-
mained to be done. The same mischief might be effected by other
means. To restore public confidence completely, it was neces-
sary not only to prohibit the use of particular means by which it
might be effected, but to prohibit the use of any means by which
the same mischief might be produced. The convention appears
to have intended to establish a great principle, that contracts
should be inviolable. The constitution, therefore, declares, that
no State shall pass "any law impairing the obligation of contracts."
If, as we think, it must be admitted that this intention might
actuate the convention; that it is not only consistent with, but
is apparently manifested by, all that part of the section which
respects this subject; that the words used are well adapted to the
expression of it; that violence would be done to their plain mean-
ing by understanding them in a more limited sense; those rules of
construction, which have been consecrated by the wisdom of ages,
compel us to say, that these words prohibit the passage of any
law discharging a contract without performance.
By way of analogy, the statutes of limitations, and against
usury, have been referred to in argument; and it has been sup-
posed that the construction of the constitution, which this opin-
ion maintains, would apply to them also, and must therefore be
too extensive to be correct.
412 CASES ON CONSTITUTIONAL LAW.
We do not think so. Statutes of limitations relate to the reme-
dies which are furnished in the courts. They rather establish,
that certain circumstances shall amount to evidence that a con-
tract has been performed, than dispense with its performance.
If, in a State where six years may be pleaded in bar to an action
of assumpsit, a law should pass declaring that contracts already in
existence, not barred by the statute, should be construed to be
within it, there could be little doubt of its unconstitutionality.
So with respect to the laws against usury. If the law be, that
no person shall take more than six per centum per annum for
the use of money, and that, if more be reserved, the contract shall
be void, a contract made thereafter reserving seven per cent.,
would have no obligation in its commencement; but if a law
should declare that contracts already entered into, and reserving
the legal interest, should be usurious and void, either in the whole
or in part, it would impair the obligation of the contract, and
would be clearly unconstitutional.
This opinion is confined to the case actually under considera-
tion. It is confined to a case in which a creditor sues in a court,
the proceedings of which the legislature, whose act is pleaded,
had not a right to control, and to a case where the creditor had
not proceeded to execution against the body of his debtor, within
the State whose law attempts to absolve a confined insolvent debtor
from his obligation. When such a case arises it will be consid-
ered.
It is the opinion of the court, that the act of the State of Xew
York, which is pleaded by the defendant in this cause, so far as
it attempts to discharge this defendant from the debt in the
declaration mentioned, is contrary to the constitution of the
United States, and that the plea is no bar to the action
THE TEUSTEES OF DAKTMOUTH COLLEGE v. WOOD-
WAKD.
4 Wheaton, 518. Decided 1819.
[The facts are sufficiently stated in the opinion of the court.]
MARSHALL, C. J., delivered the opinion of the court, as fol-
lows:
This is an action of trover, brought by the Trustees of Dart-
mouth College, against William H. Woodward, in the state court
DARTMOUTH COLLEGE v. WOODWARD. 413
of New Hampshire, for the book of records, corporate seal, and
other corporate property, to which the plaintiffs allege themselves
to be entitled.
A special verdict, after setting out the rights of the parties,
finds for the defendant, if certain acts of the legislature of New
Hampshire, passed on the 27th of June, and on the 18th of De-
cember, 1816, be valid, and binding on the trustees without their
assent, and not repugnant to the constitution of the United States;
otherwise it finds for the plaintiffs.
The superior court of judicature of New Hampshire rendered
a judgment upon this verdict for the defendant, which judgment
has been brought before this court by writ of error. The single
question now to be considered is, do the acts to which the verdict
refers violate the constitution of the United States?
This court can be insensible neither to the magnitude nor to
the delicacy of this question. The validity of a legislative act is
to be examined; and the opinion of the highest law tribunal of
a State is to be revised; an opinion which carries with it intrinsic
evidence of the diligence, of the ability, and the integrity with
which it was formed. On more than one occasion this court has
expressed the cautious circumspection with which it approaches
the consideration of such questions; and has declared that, in no
doubtful case, would it pronounce a legislative act to be contrary
to the constitution. But the American people have said, in the
constitution of the United States, that "no State shall pass any
bill of attainder, ex post facto law, or law impairing the obliga-
tion of contracts." In the same instrument they have also said,
"that the judicial power shall also extend to all cases in law
and equity arising under the constitution." On the judges of
this court, then, is imposed the high and solemn duty of protect-
ing, from even legislative violation, those contracts which the
constitution of our country has placed beyond legislative control;
and, however irksome the task may be, this is a duty from which
we dare not shrink.
The title of the plaintiffs originates in a charter dated the 13th
day of December, in the year 1769, incorporating twelve persons
therein mentioned, by the name of "The Trustees of Dartmouth
College," granting to them and their successors the usual cor-
porate privileges and powers, and authorizing the trustees, who
are to govern the college, to fill up all vacancies which may be
created in their own body.
The defendant claims under three acts of the legislature of New
Hampshire, the most material of which was passed on the 27th of
414 CASES ON CONSTITUTIONAL LAW.
June, 1816, and is entitled "An act to amend the charter and
enlarge and improve the corporation of Dartmouth College."
Among other alterations in the charter, this act increases the
number of trustees to twenty-one, gives the appointment of the
additional members to the executive of the State, and creates a
board of overseers, with power to inspect and control the most
important acts of the trustees. This board consists of twenty-
five persons. The president of the senate, the speaker of the
house of representatives of New Hampshire, and the governor
and lieutenant-governor of Vermont, for the time being, are to
be members ex officio. The board is to be completed by the gov-
ernor and council of New Hampshire, who are also empowered
to fill all vacancies which may occur. The acts of the 18th and
26th of December are supplemental to that of the 27th of June,
and are principally intended to carry that act into effect.
The majority of the trustees of the college have refused to
accept this amended charter, and have brought this suit for the
corporate property, which is in possession of a person holding
by virtue of the acts which have been stated.
It can require no argument to prove that the circumstances of
this case constitute a contract. An application is made to the
crown for a charter to incorporate a religious and literary institu-
tion. In the application it is stated that large contributions have
been made for the object, which will be conferred on the cor-
poration as soon as it shall be created. The charter is granted,
and on its faith the property is conveyed. Surely in this transac-
tion every ingredient of a complete and legitimate contract is to
be found.
The points for consideration are,
1. Is this contract protected by the constitution of the United
States?
2. Is it impaired by the acts under which the defendant holds?
1. On the first point it has been argued that the word "con-
tract," in its broadest sense, would comprehend the political rela-
tions between the government and its citizens, would extend to
offices held within a State for state purposes, and to many of
those laws concerning civil institutions, which must change with
circumstances, and be modified by ordinary legislation; which
deeply concern the public, and which, to preserve good govern-
ment, the public judgment must control. That even marriage
is a contract, and its obligations are affected by the laws respect-
ing divorces. That the clause in the constitution, if construed in
its greatest latitude, would prohibit these laws. Taken in its
DARTMOUTH COLLEGE v. WOODWARD. 415
broad, unlimited sense, the clause would be an unprofitable and
vexatious interference with the internal concerns of a State, would
unnecessarily and unwisely embarrass its legislation, and render
immutable those civil institutions which are established for pur-
poses of internal government, and which, to subserve those pur-
poses, ought to vary with varying circumstances. That as the
framers of the constitution could never have intended to insert
in that instrument a provision so unnecessary, so mischievous,
and so repugnant to its general spirit, the term "contract" must
be understood in a more limited sense. That it must be under-
stood as intended to guard against a power of at least doubtful
utility, the abuse of which had been extensively felt, and to re-
strain the legislature in future from violating the right to prop-
erty. That anterior to the formation of the constitution, a course
of legislation had prevailed in many, if not in all, of the States,
which weakened the confidence of man in man, and embarrassed
all transactions between individuals, by dispensing with a faith-
ful performance of engagements. To correct this mischief, by
restraining the power which produced it, the State legislatures
were forbidden "to pass any law impairing the obligation of con-
tracts," that is, of contracts respecting property, under which
some individual could claim a right to something beneficial to
himself; and that since the clause in the constitution must in
construction receive some limitation, it may be confined, and ought
to be confined, to cases of this description; to cases within the
mischief it was intended to remedy.
The general correctness of these observations cannot be con-
troverted. That the framers of the constitution did not intend
to restrain the States in the regulation of their civil institutions,
adopted for internal government, and that the instrument they
have given us is not to be so construed, may be admitted. The
provision of the constitution never has been understood to em-
brace other contracts than those which respect property or some
object of value, and confer rights which may be asserted in a
court of justice. It has never been understood to restrict the gen-
eral right of the legislature to legislate on the subject of divorces.
Those acts enable some tribunal, not to impair a marriage con-
tract, but to liberate one of the parties because it has been broken
by the other. When any State legislature shall pass an act an-
nulling all marriage contracts, or allowing either party to annul
\ it without the consent of the other, it will be time enough to
\inquire whether such an act be constitutional.
*-*'The parties in this case differ less on general principles, less
416 CASES ON CONSTITUTIONAL LAW.
on the true construction of the constitution in the abstract, than
on the application of those principles to this case, and on the true
construction of the charter of 1769. This is the point on which
/the cause essentially depends. If the act of incorporation be a
/ grant of political power, if it creates a civil institution to be em-
/ ployed in the administration of the government, or if the funds
of the college be public property, or if the State of New Hamp-
V shire, as a government, be alone interested in its transactions, the
\ subject is one in which the legislature of the State may act
\ according to its own judgment, unrestrained by any limitation
\ of its power imposed by the constitution of the United States.
\ But if this be a private eleemosynary institution, endowed with
a capacity to take property for objects unconnected with govern-
ment, whose funds are bestowed by individuals on the faith of
the charter; if the donors have stipulated for the future disposi-
tion and management of those funds in the manner prescribed
by themselves; there may be more difficulty in the case, although
neither the persons who have made these stipulations, nor those
for whose benefit they were made, should be parties to the cause.
Those who are no longer interested in the property may yet retain
such an interest in the preservation of their own arrangements
as to have a right to insist that those arrangements shall be held
sacred. Or, if they have themselves disappeared, it becomes a
subject of serious and anxious inquiry whether those whom they
have legally empowered to represent them forever may not assert
all the rights which they possessed while in being; whether, if
they be without personal representatives who may feel injured
by a violation of the compact, the trustees be not so completely
their representatives in the eye of the law as to stand in their
place, not only as respects the government of the college, but
also as respects the maintenance of the college charter.
It becomes then the duty of the court most seriously to ex-
amine this charter, and to ascertain its true character.
From the instrument itself it appears that about the year 1754
the Rev. Eleazer Wheelock established at his own expense, and
on his own estate, a charity school for the instruction of In-
dians in the Christian religion. The success of this institution
inspired him with the design of soliciting contributions in Eng-
land for carryng on and extending his undertaking. In this pious
work he employed the Rev. Nathaniel Whitaker, who, by virtue
of a power of attorney from Dr. Wheelock, appointed the Earl
of Dartmouth and others trustees of the money which had been
and should be contributed; which appointment Dr. Wheelock
DARTMOUTH COLLEGE v. WOODWARD. 417
confirmed by a deed of trust authorizing the trustees to fix on a
site for the college. They determined to establish the school on
Connecticut Eiver, in the western part of New Hampshire; that
situation being supposed favorable for carrying on the original
design among the Indians, and also for promoting learning among
the English, and the proprietors in the neighborhood having made
large offers of land on condition that the college should there
be placed. Dr. Wheelock then applied to the crown for an act
of incorporation, and represented the expediency of appointing
those whom he had, by his last will, named as trustees in Amer-
ica, to be members of the proposed corporation. "In considera-
tion of the premises," "for the education and instruction of the
youth of the Indian tribes," &c,, "and also of English youth and
any others," the charter was granted, and the Trustees of Dart-
mouth College were by that name created a body corporate, with
power, for the use of the said college, to acquire real and personal
property, and to pay the president, tutors, and other officers of
the college such salaries as they shall allow.
The charter proceeds to appoint Eleazer Wheelock, "the founder
of said college," president thereof, with power by his last will to
appoint a successor, who is to continue in office until disapproved
by the trustees. In cases of vacancy, the trustees may appoint
a president, and in case of the ceasing of a president, the senior
professor or tutor, being one of the trustees, shall exercise the
office until an appointment shall be made. The trustees have
power to appoint and displace professors, tutors, and other offi-
cers, and to supply any vacancies which may be created in their
own body by death, resignation, removal, or disability; and also
to make orders, ordinances, and laws for the government of the
college, the same not being repugnant to the laws of Great Brit-
ain or of New Hampshire, and not excluding any person on ac-
count of his speculative sentiments in religion, or his being
of a religious profession different from that of the trustees.
This charter was accepted, and the property, both real and
personal, which had been contributed for the benefit of the col-
lege, was conveyed to and vested in the corporate body.
From this brief review of the most essential parts of the char-
ter, it is apparent that the funds of the college consisted entirely
of private donations. It is, perhaps, not very important who were
the donors. The probability is that the Earl of Dartmouth and
the other trustees in England were, in fact, the largest contrib-
utors. Yet the legal conclusion from the facts recited in the
27
418 CASES ON CONSTITUTIONAL LAW.
charter would probably be, that Dr. Wheelock was the founder
of the college.
The origin of the institution was, undoubtedly, the Indian
charity school established by Dr. Wheelock at his own expense.
It was at his instance, and to enlarge this school, that contri-
butions were solicited in England. The person soliciting these
contributions was his agent; and the trustees, who received the
money, were appointed by and acted under his authority. It is
not too much to say that the funds were obtained by him in
trust, to be applied by him to the purposes of his enlarged school.
The charter of incorporation was granted at his instance. Tho
persons named by him in his last will as the trustees of his
charity school compose a part of the corporation, and he is de-
clared to be the founder of the college and its president for life.
Were the inquiry material, we should feel some hesitation in
saying that Dr. Wheelock was not, in law, to be considered as
the founder (1 Bl. Com., 481) of this institution, and as pos-
sessing all the rights appertaining to that character. But be
this as it may, Dartmouth College is really endowed by private
individuals, who have bestowed their funds for the propagation
of the Christian religion among the Indians, and for the promo-
tion of piety and learning generally. From these funds the
salaries of the tutors are drawn, and these salaries lessen the
expense of education to the students. It is then an eleemosy-
nary (1 Bl. Com., 471) and, as far as respects its funds, a private
corporation.
Do its objects stamp on it a different character? Are the trus-
tees and professors public officers, invested with any portion of
political power, partaking in any degree in the administration
of civil government, and performing duties which flow from the
sovereign authority?
That education is an object of national concern and a proper
subject of legislation, all admit. That there may be an institu-
tion founded by government and placed entirely under its imme-
diate control, the officers of which would be public officers, amen-
able exclusively to government, none will deny. But is Dart-
mouth College such an institution? Is education altogether in
the hands of government? Does every teacher of youth become
a public officer, and do donations for the purpose of education
necessarily become public property, so far that the will of the
legislature, not the will of the donor, becomes the law of the
donation? These questions are of serious moment to society, and
deserve to be well considered.
DARTMOUTH COLLEGE v. WOODWARD. 419
Dr. Wheelock, as the keeper of his charity school, instructing
the Indians in the art of reading and in our holy religion, sus-
taining them at his own expense and on the voluntary contribu-
tions of the charitable, could scarcely be considered as a public
officer, exercising any portion of those duties which belong to
government; nor could the legislature have supposed that his
private funds, or those given by others, were subject to legisla-
tive management because they were applied to the purposes of
education. When, afterwards, his school was enlarged, and the
liberal contributions made in England and in America enabled
him to extend his cares to the education of the youth of his own
country, no change was wrought in his own character or in the
nature of his duties. Had he employed assistant tutors with the
funds contributed by others, or had the trustees in England
established a school with Dr. Wheelock at its head, and paid
salaries to him and his assistants, they would still have been pri-
vate tutors: and the fact that they were employed in the educa-
tion of youth could not have converted them into public officers
concerned in the administration of public duties, or have given
the legislature a right to interfere in the management of the
fund. The trustees, in whose care that fund was placed by the
contributors, would have been permitted to execute their trust
uncontrolled by legislative authority.
Whence, then, can be derived the idea that Dartmouth College
has become a public institution, and its trustees public officers,
exercising powers conferred by the public for public objects? Not
from the source whence its funds were drawn, for its foundation
is purely private and eleemosynary, not from the application of
those funds; for money may be given for education, and the
persons receiving it do not, by being employed in the education
of youth, become members of the civil government. Is it from
the act of incorporation? Let this subject be considered.
A corporation is an artificial being, invisible, intangible, and
existing only in contemplation of law. Being the mere creature
of law, it possesses only those properties which the charter of its
creation confers upon it, either expressly or as incidental to its
very existence. These are such as are supposed best calculated
to effect the object for which it was created. Among the most
important are immortality, and, if the expression may be allowed,
individuality; properties, by which a perpetual succession of many
persons are considered as the same, and may act as a single in-
dividual. They enable a corporation to manage its own affairs,
and to hold property without the perplexing intricacies, the haz-
420 CASES ON CONSTITUTIONAL LAW.
ardous and endless necessity, of perpetual conveyances for the
purpose of transmitting it from hand to hand. It is chiefly for
the purpose of clothing bodies of men in succession with these
qualities and capacities that corporations were invented and are
in use. By these means, a perpetual succession of individuals
are capable of acting for the promotion of the particular object,
like one immortal being. But this being does not share in the
civil government of the country, unless that be the purpose for
which it was created. Its immortality no more confers on it po-
litical power or a political character than immortality would con-
fer such power or character on a natural person. It is no more
a State instrument than a natural person exercising the same
powers would be. If, then, a natural person, employed by indi-
viduals in the education of youth, or for the government of a
seminary in which youth is educated, would not become a public
officer, or be considered as a member of the civil government, how
is it that this artificial being, created by law for the purpose of
being employed by the same individuals for the same purposes,
should become a part of the civil government of the country? Is
it because its existence, its capacities, its powers, are given by
law? Because the government has given it the power to take and
to hold property in a particular form and for particular purposes,
has the government a consequent right substantially to change
that form, or to vary the purposes to which the property is to be
applied? This principle has never been asserted or recognized,
and is supported by no authority. Can it derive aid from reason?
The objects for which a corporation is created are universally
such as the government wishes to promote. They are deemed
beneficial to the country; and this benefit constitutes the con-
sideration, and, in most cases, the sole consideration of the grant.
In most eleemosynary institutions, the object would be difficult,
perhaps unattainable, without the aid of a charter of incorpora-
tion. Charitable or public-spirited individuals, desirous of mak-
ing permanent appropriations for charitable or other useful pur-
poses, find it impossible to effect their design securely and cer-
tainly without an incorporating act. They apply to the govern-
ment, state their beneficent object, and offer to advance the
money necessary for its accomplishment, provided the govern-
ment will confer on the instrument which is to execute their de-
signs the capacity to execute them. The proposition is considered
and approved. The benefit to the public is considered as an ample
compensation for the faculty it confers, and the corporation is
created. If the advantages to the public constitute a full com-
DARTMOUTH COLLEGE v. WOODWARD. 421
pensation for the faculty it gives,, there can be no reason for exact-
ing a further compensation, by claiming a right to exercise over
this artificial being a power which changes its nature, and touches
the fund for the security and application of which it was created.
There can be no reason for implying in a charter, given for a val-
uable consideration, a power which is not only not expressed, but
is in direct contradiction to its express stipulations.
From the fact, then, that a charter of incorporation has been
granted, nothing can be inferred which changes the character of
the institution, or transfers to the government any new power
over it. The character of civil institutions does not grow out
of their incorporation, but out of the manner in which they are
formed, and the objects for which they are created. The right to
change them is not founded on their being incorporated, but on
their being the instruments of government, created for its pur-
pose. The same institutions, created for the same objects, though
not incorporated, would be public institutions, and, of course,
be controllable by the legislature. The incorporating act neither
gives nor prevents this control. Neither, in reason, can the in-
corporating act change the character of a private eleemosynary
institution.
/. We are next led to the inquiry, for whose benefit the property
/given to Dartmouth College was secured? The counsel for the
/ defendant have insisted that the beneficial interest is in the people
/ of New Hampshire. The charter, after reciting the preliminary
V measures which had been taken, and the application for an act.
of incorporation, proceeds thus: "Know ye, therefore, that we,
considering the premises, and being willing to encourage the
laudable and charitable design of spreading Christian knowledge
among the savages of our American wilderness, and also that the
best means of education be established, in our province of New
Hampshire, for the benefit of said province, do, of our special
grace," etc. Do these expressions bestow on New Hampshire
any exclusive right to the property of the college, any exclusive
interest in the labors of the professors? Or do they merely indi-
cate a willingness that New Hampshire should enjoy those ad-
vantages which result to all from the establishment of a seminary
of learning in the neighborhood? On this point we think it
impossible to entertain a serious doubt. The words themselves,
unexplained by the context, indicate that the "benefit intended
for the province" is that which is derived from "establishing the
best means of education therein;" that is, from establishing in
the province Dartmouth College as constituted by the charter.
4:22 CASES ON CONSTITUTIONAL LAW.
But if these words, considered alone, could admit of doubt, that
doubt is completely removed by an inspection of the entire in-
strument.
The particular interests of New Hampshire never entered into
the mind of the donors, never constituted a motive for their dona-
tion. The propagation of the Christian religion among the sav-
ages, and the dissemination of useful knowledge among the youth
of the country, were the avowed and the sole objects of their
contributions. In these New Hampshire would participate; but
nothing particular or exclusive was intended for her. Even the
site of the college was selected, not for the sake of New Hamp-
shire, but because it was "most subservient to the great ends in
view," and because liberal donations of land were offered by the
proprietors on condition that the institution should be there estab-
lished. The real advantages from the location of the college are,
perhaps, not less considerable to those on the west than to those
on the east side of Connecticut River. The clause which con-
stitutes the incorporation, and expresses the objects for which it
was made, declares those objects to be the instruction of the
Indians, "and also of English youth and any others." So that
the objects of the contributors and the incorporating act were
the same, the promotion of Christianity and of education gener-
ally, not the interests of New Hampshire particularly.
From this review of the charter, it appears that Dartmouth
College is an eleemosynary institution, incorporated for the pur-
pose of perpetuating the application of the bounty of the donors
to the specified objects of that bounty; that its trustees or gov-
ernors were originally named by the founder, and invested with
the power of perpetuating themselves; that they are not public
officers, nor is it a civil institution, participating in the admin-
istration of government; but a charity school, or a seminary of
education, incorporated for the preservation of its property, and
the perpetual application of that property to the objects of its
creation.
Yet a question remains to be considered of more real difficulty,
on which more doubt has been entertained than on all that have
been discussed. The founders of the college, at least those whose
contributions were in money, have parted with the property be-
stowed upon it, and their representatives have no interest in that
property. The donors of land are equally without interest so
long as the corporation shall exist. Could they be found, they
are unaffected by any alteration in its constitution, and probably
regardless of its form or even of its existence. The students are
DARTMOUTH COLLEGE v. WOQDWARD. 423
fluctuating, and no individual among our youth has a vested in-
terest in the institution which can be asserted in a court of jus-
tice. Neither the founders of the college, nor the youth for
whose benefit it was founded, complain of the alteration made in
its charter, or think themselves injured by it. The trustees alone
complain, and the trustees have no beneficial interest to be pro-
tected. Can this be such a contract as the constitution intended
to withdraw from the power of State legislation? Contracts, the
parties to which have a vested beneficial interest, and those only,
it has been said, are the objects about which the constitution is
solicitous, and to which its protection is extended.
The court has bestowed on this argument the most deliberate
consideration, and the result will be stated. Dr. Wheelock, act-
ing for himself and for those who, at his solicitation, had made
contributions to his school, applied for this charter, as the instru-
ment which should enable him and them to perpetuate their
beneficent intention. It was granted. An artificial, immortal
being was created by the crown, capable of receiving and distrib-
uting forever, according to the will of the donors, the donations
which should be made to it. On this being, the contributions
which had been collected were immediately bestowed. These gifts
were made, not indeed to make a profit for the donors or their
posterity, but for something, in their opinion, of inestimable
value; for something which they deemed a full equivalent for the
money with which it was purchased. The consideration for which
they stipulated, is the perpetual application of the fund to its
object, in the mode prescribed by themselves. Their descendants
may take no interest in the preservation of this consideration.
But in this respect their descendants are not their representa-
tives. They are represented by the corporation. The corpora-
tion is the assignee of their rights, stands in their place, and dis-
tributes their bounty, as they would themselves have distributed
it had they been immortal. So with respect to the students who
are to derive learning from this source. The corporation is a
trustee for them also. Their potential rights, which, taken dis-
tributively, are imperceptible, amount collectively to a most im-
portant interest. These are, in the aggregate, to be exercised, as-
serted, and protected by the corporation. They were as completely
out of the donors, at the instant of their being vested in the
corporation, .and as incapable of being asserted by the students, as
at present.
According to the theory of the British constitution, their par-
liament is omnipotent. To annul corporate rights might give a
424 CASES ON CONSTITUTIONAL LAW.
shock to public opinion, which that government has chosen to
avoid; but its power is not questioned. Had parliament, imme-
diately after the emanation of this charter and the execution
those conveyances which followed it, annulled the instrument,
j so that the living donors would have witnessed the disappoint-
/ ment of their hopes, the perfidy of the transaction would have
been universally acknowleged. Yet then, as now, the donors would
have had no interest in the property; then, as now, those who
might be students would have had no rights to be violated; then,
as now, it might be said that the trustees, in whom the rights
\ of all were combined, possessed no private, individual, beneficial
\ interest in the property confided to their protection. Yet the
\ contract would at that time have been deemed sacred by all. What
\ has since occurred to strip it of its inviolability? Circumstances
have not changed it. In reason, in justice, and in law, it is
now what it was in 1769.
This is plainly a contract to which the donors, the trustees, and
the crown (to whose rights and obligations New Hampshire suc-
ceeds) were the original parties. It is a contract made on a val-
uable consideration. It is a contract for the security and disposi-
tion of property. It is a contract on the faith of which real and
personal estate has been conveyed to the corporation. It is then
a contract within the letter of the constitution, and within its
spirit also, unless the fact that the property is invested by the
donors in trustees for the promotion of religion and education,
for the benefit of persons who are perpetually changing, though
the objects remain the same, shall create a particular exception,
taking this case out of the prohibition contained in the consti-
tution.
It is more than possible that the preservation of rights of this
description was not particularly in the view of the framers of
the constitution when the clause under consideration was intro-
duced into that instrument. It is probable that interferences of
more frequent recurrence, to which the temptation was stronger
and of which the mischief was more extensive, constituted the
great motive for imposing this restriction on the State legisla-
tures. But although a particular and a rare case may not in itself
be of sufficient magnitude to induce a rule, yet it must be governed
by the rule, when established, unless some plain and strong reason
for excluding it can be given. It is not enough to say that this
particular case was not in the mind of the convention when the
article was framed, nor of the American people when it was
adopted. It is necessary to go farther, and to say that, had this
DARTMOUTH COLLEGE v. WOODWARD. 425
particular case been suggested, the language would have been so
varied as to exclude it, or it would have been made a special
exception. The case, being within the words of the rule, must
be within its operation likewise, unless there be something in the
literal construction so obviously absurd, or mischievous, or repug-
nant to the general spirit of the instrument as to justify those
who expound the constitution in making it an exception.
On what safe and intelligible ground can this exception stand?
There is no expression in the constitution, no sentiment delivered
by its contemporaneous expounders, which would justify us in
making it. In the absence of all authority of this kind, is there,
in the nature and reason of the case itself, that which would sus-
tain a construction of the constitution not warranted by its words?
Are contracts of this description of a character to excite so little
interest that we must exclude them from the provisions of the
constitution, as being unworthy of the attention of those who
framed the instrument? Or does public policy so imperiously de-
mand their remaining exposed to legislative alteration as to com-
pel us, or rather permit us to say, that these words, which were
introduced to give stability to contracts, and which in their plain
import comprehend this contract, must yet be so construed as
to exclude it?
Almost all eleemosynary corporations, those which are created
for the promotion of religion, of charity, or of education, are of the
same character. The law of this case is the law of all. In every lit-
erary or charitable institution, unless the objects of the bounty be
themselves incorporated, the whole legal interest is in trustees, and
can be asserted only by them. The donors, or claimants of the
bounty, if they can appear in court at all, can appear only to
complain of the trustees. In all other situations, they are identi-
fied with, and personated by, the trustees, and their rights are to
be defended and maintained by them. Keligion, charity, and edu-
cation are, in the law of England, legatees or donees, capable of
receiving bequests or donations in this form. They appear in
court, and claim or defend by the corporation. Are they of so
little estimation in the United States that contracts for their bene-
fit must be excluded from the protection of words which in their
natural import include them? Or do such contracts so necessarily
require new modelling by the authority of the legislature that the
ordinary rules of construction must be disregarded in order to
leave them exposed to legislative alteration?
All feel that these objects are not deemed unimportant in the
United States. The interest which this case has excited proves
426 CASES ON CONSTITUTIONAL LAW.
that they are not. The framers of the constitution did not deem
them unworthy of its care and protection. They have, though
in a different mode, manifested their respect for science by re-
serving to the government of the Union the power "to promote
the progress of science and useful arts, by securing for limited
times, to authors and inventors, the exclusive right to their respect-
ive writings and discoveries." They have so far withdrawn science
and the useful arts from the action of the State governments.
Why, then, should they be supposed so regardless of contracts
made for the advancement of literature as to intend to exclude
them from provisions made for the security of ordinary contracts
between man and man? No reason for making this supposition
is perceived.
"If the insignificance of the object does not require that we
should exclude contracts respecting it from the protection of the
constitution; neither, as we conceive, is the policy of leaving
them subject to legislative alteration so apparent as to require a
forced construction of that instrument in order to effect it. These
eleemosynary institutions do not fill the place which would other-
wise be occupied by government, but that which would otherwise
remain vacant. They are complete acquisitions to literature. They
are donations to education; donations which any government must
be disposed rather to encourage than to discountenance. It re-
quires no very critical examination of the human mind to enable
us to determine that one great inducement to these gifts is the
conviction felt by the giver that the disposition he makes of them
is immutable. It is probable that no man ever was, and that
no man ever will be, the founder of a college, believing at the time
that an act of incorporation constitutes no security for the insti-
| tution; believing that it is immediately to be deemed a public
institution, whose funds are to be governed and applied, not by
Vjthe will of the donor, but by the will of the legislature. All such
gifts are made in the pleasing, perhaps delusive, hope that the
charity will flow forever in the channel which the givers have
marked out for it. If every man finds in his own bosom strong
evidence of the universality of this sentiment, there can be but
little reason to imagine that the framers of our constitution were
strangers to it; and that, feeling the necessity and policy of giving
permanence and security to contracts, of withdrawing them from
the influence of legislative bodies, whose fluctuating policy and
repeated interferences produced the most perplexing and inju-
rious embarrassments, they still deemed it necessary to leave these
contracts subject to those interferences. The motives for such
DARTMOUTH COLLEGE v. WOODWARD. 427
i
an exception must be very powerful to justify the construction
which makes it.
The motives suggested at the bar grow out of the original ap-
pointment of the trustees, which is supposed to have been in a
spirit hostile to the genius of our government, and the presump-
tion that, if allowed to continue themselves, they now are, and
must remain forever, what they originally were. Hence is inferred
the necessity of applying to this corporation, and to other similar
corporations, the correcting and improving hand of the legisla-
ture.
It has been urged repeatedly, and certainly with a degree of
earnestness which attracted attention, that the trustees, deriving
their power from a regal source, must necessarily partake of the
spirit of their origin; and that their first principles, unimproved
by that resplendent light which has been shed around them, must
continue to govern the college, and to guide the students. Before
we inquire into the influence which this argument ought to have
on the constitutional question, it may not be amiss to examine
the fact on which it rests. The first trustees were undoubtedly
named in the charter by the crown, but at whose suggestion were
they named? By whom were they selected? The charter informs
us. Dr. Wheelock had represented, "that, for many weighty rea-
sons, it would be expedient that the gentlemen whom he had al-
ready nominated in his last will to be trustees in America, should
be of the corporation now proposed." When, afterwards, the
trustees are named in the charter, can it be doubted that the per-
sons mentioned by Dr. Wheelock in his will were appointed? Some
were probably added by the crown, with the approbation of Dr.
Wheelock. Among these is the doctor himself. If any others
were appointed at the instance of the crown, they are the governor,
three members of the council, and the speaker of the house of
representatives of the colony of New Hampshire. The stations
filled by these persons ought to rescue them from any other im-
putation than too great a dependence on the crown. If in the
Revolution that followed, they acted under the influence of this
sentiment, they must have ceased to be trustees; if they took
part with their countrymen, the imputation which suspicion might
excite would no longer attach to them. The original trustees,
then, or most of them, were named by Dr. Wheelock, and those
who were added to his nomination, most probably with his appro-
bation, were among the most eminent and respectable individuals
in New Hampshire.
The only evidence which we possess of the character of Dr.
428 CASES ON CONSTITUTIONAL LAW.
i
Wheelock is furnished by this charter. The judicious means em-
ployed for the accomplishment of his object, and the success which
attended his endeavors, would lead to the opinion that he united
a sound understanding to that humanity and benevolence which
suggested his undertaking. It surely cannot be assumed that his
trustees were selected without judgment. With as little probabil-
ity can it be assumed that, while the light of science and of lib-
eral principles pervades the whole community, these originally
benighted trustees remain in utter darkness, incapable of partici-
pating in the general improvement; that, while the human race
is rapidly advancing, they are stationary. Reasoning a priori, we
should believe that learned and intelligent men, selected by its
patrons for the government of a literary, institution, would select
learned and intelligent men for their successors, men as well fitted
for the government of a college as those who might be chosen by
other means. Should this reasoning ever prove erroneous in a
particular case, public opinion, as has been stated at the bar,
would correct the institution. The mere possibility of the contrary
would not justify a construction of the constitution which should
exclude these contracts from the protection of a provision whose
terms comprehend them.
The opinion of the court, after mature deliberation is, that thia
is a contract, the obligation of which cannot be impaired without
violating the constitution of the United States. This opinion ap-
pears to us to be equally supported by reason and by the former
decisions of this court.
2. We next proceed to the inquiry whether its obligation has
been impaired by those acts of the legislature of New Hampshire
to which the special verdict refers.
From the review of this charter which has been taken it appears
that the whole power of governing the college, of appointing and re-
moving tutors, of fixing their salaries, of directing the course of
study to be pursued by the students, and of filling up vacancies cre-
ated in their own body, was vested in the trustees. On the part
of the crown it was expressly stipulated that this corporation,
thus constituted, should continue forever; and that the number
of trustees should forever consist of twelve, and no more. By
this contract the crown was bound, and could have made no vio-
lent alteration in its essential terms without impairing its obliga-
tion.
By the Revolution the duties as well as the powers of govern-
ment devolved on the people of New Hampshire. It is admitted
that among the latter was comprehended the transcendent power
DARTMOUTH COLLEGE v. WOODWARD. 429
of parliament, as well as that of the executive department. It is
too clear to require the support of argument that all contracts
and rights respecting property remained unchanged by the Bevo-
lution. The obligations, then, which were created by the char-
ter to Dartmouth College were the same in the new that they had
been in the old government. The power of the government was
also the same. A repeal of this charter at any time prior to the
adoption of the present constitution of the United States would
have been an extraordinary and unprecedented act of power, but
one which could have been contested only by the restrictions upon
the legislature to be found in the constitution of the State. But
the constitution of the United States has imposed this addi-
tional limitation, that the legislature of a State shall pass no act
"impairing the obligation of contracts." .
It has been already stated that the act "to amend the charter
and enlarge and improve the corporation of Dartmouth College"
increases the number of trustees to twenty-one, gives the appoint-
ment of the additional members to the executive of the State, and
creates a board of overseers, to consist of twenty-five persons, of
whom twenty-one are also appointed by the executive of New
Hampshire, who have power to inspect and control the most im-
portant acts of the trustees.
On the effect of this law two opinions cannot be entertained.
Between acting directly and acting through the agency of trus-
tees and overseers no essential difference is perceived. The whole
power of governing the college is transformed from trustees ap-
pointed according to the will of the founder, expressed in the
charter, to the executive of New Hampshire. The management
and application of the funds of this eleemosynary institution, which
are placed by the donors in the hands of trustees named in the
charter, and empowered to perpetuate themselves, are placed by
this act under the control of the government of the State. The
will of the State is substituted for the will of the donors in every
essential operation of the college. This is not an immaterial
change. The founders of the college contracted, not merely for
the perpetual application of the funds which they gave to the
objects for which those funds were given; they contracted also to
secure that application by the constitution of the corporation.
They contracted for a system which should, as far as human fore-
sight can provide, retain forever the government of the literary
institution they had formed, in the hands of persons approved
by themselves. This system is totally changed. The charter of
1769 exists no longer. It is reorganized; and reorganized in such
430 CASES ON CONSTITUTIONAL LAW.
a manner as to convert a literary institution, molded according to
the will of its founders and placed under the control of private
literary men, into a machine entirely subservient to the will of
government. This may be for the advantage of this college in
particular, and may be for the advantage of literature in general;
but it is not according to the will of the donors, and is subver-
sive of that contract on the faith of which their property was
given.
In the view which has been taken of this interesting case, the
court has confined itself to the rights possessed by the trustees, as
the assignees and representatives of the donors and founders, for
the benefit of religion and literature. Yet it is not clear that the
trustees ought to be considered as destitute of such beneficial in-
terest in themselves as the law may respect. In addition to their
being the legal owners of the property, and to their having a free-
hold right in the powers confided to them, the charter itself
countenances the idea that trustees may also be tutors with sala-
ries. The first president was one of the original trustees; and the
charter provides, that in case of vacancy in that office, "the senior
professor or tutor, being one of the trustees, shall exercise the
office of president, until the trustees shall make choice of, and
appoint a president." According to the tenor of the charter, then,
the trustees might, without impropriety, appoint a president and
other professors from their own body. This is a power not entirely
unconnected with an interest. Even if the proposition of the
counsel for the defendant were sustained; if it were admitted, that
those contracts only are protected by the constitution, a beneficial
interest in which is vested in the party who appears in court to
assert that interest; yet it is by no means clear that the Trustees
of Dartmouth College have no beneficial interest in themselves.
But the court has deemed it unnecessary to investigate this
particular point, being of opinion, on general principles, that in
these private eleemosynary institutions, the body corporate, as pos-
sessing the whole legal and equitable interest, and completely rep-
resenting the donors, for the purpose of executing the trust, has
rights which are protected by the constitution.
It results from this opinion, that the acts of the legislature of
New Hampshire, which are stated in the special verdict found in
this cause, are repugnant to the constitution of the United States;
and that the judgment on this special verdict ought to have been
for the plaintiffs. The judgment of the state court must, there-
fore, be reversed.
OGDEN v. SAUNDERS. 431
[JUSTICES WASHINGTON and STORY delivered concurring opin-
ions. JUSTICE JOHNSON concurred for the reasons stated by the
Chief Justice; JUSTICE LIVINGSTON concurred for the reasons
stated by the Chief Justice and by JUSTICES WASHINGTON and
STORY. JUSTICE DUVALL dissented.]
NOTE. "It may well be doubted whether any decision ever de-
livered by any court has had such a pervading operation and in-
fluence in controlling legislation as this. The legislation, however,
so controlled, has been that of the States of the Union." Miller,
Lectures on the Constitution of the United States, 391.
OGDEN v. SAUNDERS.
12 Wheaton, 213. Decided 1827.
ERROR to the district court of the United States for Louisiana.
This was an action of assumpsit, brought in the court below,
by the defendant in error, Saunders, a citizen of Kentucky, against
the plaintiff in error, Ogden, a citizen of Louisiana. The plaintiff
below declared upon certain bills of exchange, drawn on the 30th
of September, 1806, by one Jordan, at Lexington, in the State of
Kentucky, upon the defendant below, Ogden, in the city of New
York (the defendant then being a citizen and resident of the State
of New York), accepted by him at the city of New York, and pro-
tested for non-payment.
The defendant below pleaded several pleas, among which was
a certificate of discharge under the act of the legislature of the
State of New York, of April 3, 1801, for the relief of insolvent
debtors, commonly called the three-fourths act.
The jury found the facts in the form of a special verdict, on
which the court rendered a judgment for the plaintiff below, and
the cause was brought by writ of error before this court. The
question which arose under this plea as to the validity of the law
of New York as being repugnant to the constitution of the United
States, was argued at February term, 1824, . . . and the
cause was continued for advisement until the present term. It
was again argued at the present term (in connection with several
other causes standing on the calendar, and involving the general
432 CASES ON CONSTITUTIONAL LAW.
question of the validity of the state bankrupt, or insolvent law?).
The learned judges delivered their opinions as follows:
WASHINGTON, J. The first and most important point to be de-
cided in this cause turns essentially upon the question, whether
the obligation of a contract is impaired by a State bankrupt or in-
solvent law, which discharges the person and the future acquisitions
of the debtor from his liability under a contract entered into in
that State after the passage of the act.
This question has never before been distinctly presented to the
consideration of this court, and decided, although it has been sup-
posed by the judges of a highly respectable state court that it was
decided in the case of M'Millan v. M'Neal, 4 W., 209. That was
the case of a debt contracted by two citizens of South Carolina, in
that Stale, the discharge of which had a view to no other State.
The debtor afterwards removed to the territory of Louisiana, where
he was regularly discharged, as an insolvent, from all his debts,
under an act of the legislature of that State passed prior to the
time when the debt in question was contracted. To an action
brought by the creditor in the district court of Louisiana, the de-
fendant plead in bar his discharge, under the law of that territory,
and it was contended by the counsel for the debtor in this court,
that the law under which the debtor was discharged, having passed
before the contract was made, it could not be said to impair its
obligation. The cause was argued on one side only, and it would
seem from the report of the case, that no written opinion was pre-
pared by the court. The chief justice stated that the circumstance
of the state law under which the debt was attempted to be dis-
charged having been passed before the debt was contracted, made
no difference in the application of the principle which had been
asesrted by the court in the case of Sturges v. Crowninshield, 4 W.,
122. The correctness of this position is believed to be incontro-
vertible. The principle alluded to was, that a state bankrupt law
which impairs the obligation of a contract, is unconstitutional in
its application to such contract. In that case, it is true, the con-
tract preceded in order of time the act of assembly, under which
the debtor was discharged, although it was not thought necessary
to notice that circumstance in the opinion which was pronounced.
The principle, however, remained, in the opinion of the court de-
livered in M'Millan v. M'Xeal, unaffected by the circumstance
that the law of Louisiana preceded a contract made in another
State; since that law, having no extra-territorial force, never did
OGDEN v. SAUNDERS. 433
at any time govern or affect the obligation of such contract. It
could not, therefore, be correctly said to be prior to the contract,
in reference to its obligation; since if, upon legal principles, it
could affect the contract, that could not happen until the debtor
became a citizen of Louisiana, and that was subsequent to the
contract. But I hold the principle to be well established, that a
discharge under the bankrupt laws of one government does not
affect contracts made or to be executed under another, whether
the law be prior or subsequent in the date to that of the contract;
and this I take to be the only point really decided in the case
alluded to. Whether the chief justice was correctly understood
by the reporter, when he is supposed to have said, "that this case
was not distinguishable in principle from the preceding case of
Sturges v. Crowninshield," it is not material at this time to in-
quire, because I understand the meaning of these expressions to
go no further than to intimate that there was no distinction be-
tween the cases as to the constitutional objection, since it professed
to discharge a debt contracted in another State, which, at the time
it was contracted, was not within its operation, nor subject to be
discharged by it. The case now to be decided, is that of a debt
contracted in the State of New York, by a citizen of that State,
from which he was discharged, so far as he constitutionally could
be, under a bankrupt law of that State, in force at the time when
the debt was contracted. It is a case, therefore, that bears no re-
semblance to the one just noticed.
I come now to the consideration of the question, which, for the
first time, has been directly brought before this court for judg-
ment. . . .
It has constantly appeared to me, throughout the different in-
vestigations of this question to which it has been my duty to
attend, that the error of those who controvert the constitutionality
of the bankrupt law under consideration, in its application to this
case, if they be in error at all, has arisen from not distinguishing
accurately between a law which impairs a contract, and one which
impairs its obligation. A contract is defined by all to be an agree-
ment to do or not to do some particular act; and in the construc-
tion of this agreement, depending essentially upon the will of the
parties between whom it is formed, we seek for their intention with
a view to fulfill it. Any law, then, which enlarges, abridges or in
any manner changes this intention, when it is discovered, neces-
sarily impairs the contract itself, which is but the evidence of that
intention. . . .
What is it, then, which constitutes the obligation of a con-
28
434 CASES ON CONSTITUTIONAL LAW.
tract? The answer is given by the chief justice, in the case of
Sturges v. Crowninshield, to which I readily assent now, as I did
then; it is the law which binds the parties to perform their agree-
ment. The law, then, which has this binding obligation, must
govern and control the contract in every shape in which it is in-
tended to bear upon it, whether it affect its validity, construction,
or discharge.
But the question, which law is referred to in the above definition,
still remains to be solved. It cannot, for a moment, be conceded
that the mere moral law is intended, since the obligation which
that imposes is altogether of the imperfect kind which the parties
to it are free to obey or not, as they please. It cannot be supposed
that it was with this law the grave authors of this instrument were
dealing.
The universal law of all civilized nations, which declares that
men shall perform that to which they have agreed, has been sup-
posed by the counsel who have argued this cause for the defendant
in error, to be the law which is alluded to; and I have no objection
to acknowledging its obligation, whilst I must deny that it is that
which exclusively governs the contract. It is upon this law that
the obligation which nations acknowledge to perform their com-
pacts with each other is founded, and I, therefore, feel no objection
to answer the question asked by the same counsel what law it
is which constitutes the obligation of the compact between Vir-
ginia and Kentucky by admitting, that it is this common law of
nations which requires them to perform it. I admit further that
it is this law which creates the obligation of a contract made upon
a desert spot, where no municipal law exists, and (which was
another case put by the same counsel) which contract, by the tacit
assent of all nations, their tribunals are authorized to enforce.
But can it be seriously insisted that this, any more than the
moral law. upon which it is founded, was exclusively in the con-
templation of those who framed this constitution? What is the
language of this universal law? It is simply that all men are bound
to perform their contracts. The injunction is as absolute as the
contracts to which it applies. It admits of no qualification and
no restraint, either as to its validity, construction, or discharge,
further than may be necessary to develop the intention of the
parties to the contract. And if it be true that this is exclusively
the law, to which the constitution refers us, it is very apparent that
the sphere of state legislation upon subjects connected with the
contracts of individuals, would be abridged beyond what it can
for a moment be believed the sovereign States of this Union would
OGDEN v. SAUNDERS. 435
have consented to; for it will be found, upon examination, that
there are few laws which concern the general police of a State, or
the government of its citizens, in their intercourse with each other
or with strangers, which may not in some way or other affect the
contracts which they have entered into, or may thereafter form.
For what are laws of evidence, or which concern remedies frauds
and perjuries laws of registration, and those which affect land-
lord and tenant, sales at auction, acts of limitation, and those
which limit the fees of professional men, and the charges of tavern-
keepers, and a multitude of others which crowd the codes of every
State, but laws which may affect the validity, construction, or dura-
tion, or discharge of contracts? Whilst I admit, then, that this
common law of nations, which has been mentioned, may form in
part the obligation of a contract, I must unhesitatingly insist that
this law is to be taken in strict subordination to the municipal
laws of the land where the contract is made, or is to be executed.
The former can be satisfied by nothing short of performance;
the latter may affect and control the validity, construction, evi-
dence, remedy, performance, and discharge of the contract. The
former is the common law of all civilized nations, and of each of
them; the latter is the peculiar law of each, and is paramount to
the former whenever they come in collision with each other.
It is, then, the municipal law of the State, whether that be
written or unwritten, which is emphatically the law of the con-
tract made within the State, and must govern it throughout, wher-
ever its performance is sought to be enforced.
It forms, in my humble opinion, a part of the contract, and
travels with it wherever the parties to it may be found. It is so
regarded by all the civilized nations of the world, and is enforced
by the tribunals of those nations according to its own forms, unless
the parties to it have otherwise agreed, as where the contract is to
be executed in, or refers to the laws of, some other country than
that in which it is formed, or where it is of an immoral character,
or contravenes the policy of the nation to whose tribunals the ap-
peal is made; in which latter cases the remedy which the comity
of nations affords for enforcing the obligation of contracts wher-
ever formed, is denied. Free from these objections, this law, which
accompanies the contract as forming a part of it, is regarded and
enforced everywhere, whether it affect the validity, construction,
or discharge of the contract. It is upon this principle of universal
law, that the discharge of the contract, or of one of the parties
to it, by the bankrupt laws of the country where it was made,
operates as a discharge everywhere.
436 CASES ON CONSTITUTIONAL LAW.
If, then, it be true that the law of the country where the contract
is made or to be executed, forms a part of that contract and of
its obligation, it would seem to be somewhat of a solecism to say
that it does, at the same time, impair that obligation.
But it is contended that if the municipal law of the State where
the contract is so made form a part of it, so does that clause of
the constitution which prohibits the States from passing laws to
impair the obligation of contracts; and, consequently, that the
law is rendered inoperative by force of its controlling associate.
All this I admit, provided it be first proved that the law so incor-
porated with and forming a part of the contract does, in effect,
impair its obligation; and before this can be proved, it must be
affirmed and satisfactorily made out, that if, by the terms of the
contract, it is agreed that, on the happening of a certain event, as,
upon the future insolvency of one of the parties, and his surrender
of all his property for the benefit of his creditors, the contract shall
be considered as performed and at an end, this stipulation would
impair the obligation of the contract. If this proposition can be
successfully affirmed, I can only say, that the soundness of it is
beyond the reach of my mind to understand.
Again, it is insisted that if the law of the contract forms a part
of it, the law itself cannot be repealed without impairing the obli-
gation of the contract. This proposition I must be permitted to
deny. It may be repealed ait any time, at the will of the legis-
lature, and then it ceases to form any part of those contracts which
may afterwards be entered into. The repeal is no more void than
a new law would be which operates upon contracts to affect their
validity, construction, or duration. Both are valid (if the view
which I take of this case be correct), as they may affect contracts
afterwards formed; but neither are so, if they bear upon existing
contracts; and, in the former case, in which the repeal contains
no enactment, the constitution would forbid the application of the
repealing law to past contracts, and to those only.
To illustrate this argument, let us take four laws, which, either
by new enactments, or by the repeal of former laws, may affect
contracts as to their validity, construction, evidence, or remedy.
Laws against usury are of the first description.
A law which converts a penalty, stipulated for by the parties, as
the only atonement for a breach of the contract, into a mere agree-
ment for a just compensation, to be measured by the legal rate of
interest, is of the second.
The statute of frauds, and the statute of limitations, may be
cited as examples of the last two.
OGDEN v. SAUNDERS. 437
The validity of these laws can never be questioned by those who
accompany me in the view which I take of the question under
consideration, unless they operate, by their express provisions,
upon contracts previously entered into; and even then they are
void only so far as they do so operate; because, in that case, and in
that case only, do they impair the obligation of those contracts.
But if they equally impair the obligation of contracts subsequently
made, which they must do, if this be the operation of a bankrupt
law upon such contracts, it would seem to follow that all such
laws, whether in the form of new enactments, or of repealing laws,
producing the same legal consequences, are made void by the con-
stitution; and yet the counsel for the defendants in error have not
ventured to maintain so alarming a proposition.
If it be conceded that those laws are not repugnant to the con-
stitution, so far as they apply to subsequent contracts, I am yet
to be instructed how to distinguish between 'those laws, and the
one now under consideration. How has this been attempted by the
learned counsel who have argued this cause upon the ground of
such a distinction?
They have insisted that the effect of the law first supposed, is
to annihilate the contract in its birth, or rather to prevent it from
having a legal existence, and consequently, that there is no obliga-
tion to be impaired. But this is clearly not so, since it may legiti-
mately avoid all contracts afterwards entered into, which reserve to
the lender a higher rate of interest than this law permits.
The validity of the second law is admitted, and yet this can only
be in its application to subsequent contracts; for it has not, and I
think it cannot, for a moment, be maintained, that a law which,
in express terms, varies the construction of an existing contract,
or which, repealing a former law, is made to produce the same
effect, does not impair the obligation of that contract.
The statute of frauds, and the statute of limitations, which
have been put as examples of the third and fourth classes of laws,
are also admitted to be valid, because they merely concern the
modes of proceeding in the trial of causes. The former, supplying
a rule of evidence, and the latter, forming a part of the remedy
given by the legislature to enforce the obligation, and likewise pro-
viding a rule of evidence.
All this I admit. But how does it happen that these laws, like
those which affect the validity and construction of contracts, are
valid as to subsequent, and yet^void as to prior and subsisting con-
tracts? For we are informed by the learned judge who delivered
the opinion of this court, in the case of Sturges v. Crowninshield,
438 CASES ON CONSTITUTIONAL LAW.
4 W., 122, that, "if, in a State where six years may be pleaded in
bar to an action of assumpsit, a law should pass declaring that con-
tracts already in existence, not barred by the statute, should be
construed within it, there could be little doubt of its unconstitu-
tional! ty."
It is thus most apparent that, whichever way we turn, whether
to laws affecting the validity, construction, or discharges of con-
tracts, or the evidence or remedy to be employed in enforcing them,
we are met by this overruling and admitted distinction, between
those which operate retrospectively, and those which operate pros-
pectively. In all of them the law is pronounced to be void in the
first class of cases, and not so in the second.
Let us stop, then, to make a more critical examination of the
act of limitations, which, although it concerns the remedy, or, if
it must be conceded, the evidence, is yet void or otherwise, as it is
made to apply retroactively, or prospectively, and see if it can,
upon any intelligible principle, be distinguished from a bankrupt
law, when applied in the same manner. What is the effect of the
former? The answer is, to discharge the debtor and all. his future
acquisitions from this contract; because he is permitted to plead
it in bar of any remedy which can be instituted against him, and
consequently in bar or destruction of the obligation which his con-
tract imposed upon him. What is the effect of a discharge under
a bankrupt law? I can answer this question in no other terms
than those which are given to the former question. If there be a
difference, it is one which, in the eye of justice, at least, is more
favorable to the validity of the latter than of the former; for in
the one, the debtor surrenders everything which he possesses
towards the discharge of his obligation, and in the other, he sur-
renders nothing, and sullenly shelters himself behind a legal objec-
tion with which the law has provided him, for the purpose of pro-
tecting his person, and his present as well as his future acquisitions,
against the performance of his contract.
It is said that the former does not discharge him absolutely
from his contract, because it leaves a shadow sufficiently substan-
tial to raise a consideration for a new promise to pay. And is not
this equally the case with a certificated bankrupt, who afterwards
promises to pay a debt from which his certificate had discharged
him? In the former case, it is said the defendant must plead the
statute in order to bar the remedy and to exempt him from his
obligation. And so, I answer, he must plead his discharge under
the bankrupt law, and his conformity to it, in order to bar the
remedy of his creditor, and to secure to himself a like exemption.
OGDEN v. SAUNDBRS. 439
I have, in short, sought in vain for some other grounds on which
to distinguish the two laws from each other than those which were
suggested at the bar. I can imagine no other, and I confidently
believe that none exist which will bear the test of a critical ex-
amination.
To the decision of this court, made in the case of Sturges v.
Crowninshield, and to the reasoning of the learned judge who
delivered that opinion, I entirely submit; although I did not then,
nor can I now bring my mind to concur in that part of it which
admits the constitutional power of the state legislatures to pass
bankrupt laws, by which I understand those laws which discharge
the person and the future acquisitions of the bankrupt from his
debts. I have always thought that the power to pass such a law
was exclusively vested by the constitution in the legislature of the
United States. But it becomes me to believe that this opinion was
and is incorrect, since it stands condemned by the decision of a
majority of this court, solemnly pronounced.
After making this acknowledgment, I refer again to the above
decision with some degree of confidence in support of the opinion,
to which I am now inclined to come, that a bankrupt law which
operates prospectively, or in so far as it does so operate, does not
violate the constitution of the United States. It is there stated
"that, until the power to pass uniform laws on the subject of bank-
ruptcies be exercised by congress, the States are not forbidden to
pass a bankrupt law, provided it contain no principle which vio-
lates the 10th section of the 1st article of the constitution of the
United States." The question in that case was, whether the law
of New York, passed on the 3d of April, 1811, which liberates
not only the person of the debtor, but discharges him from all
liability for any debt contracted previous as well as subsequent to
his discharge, on his surrendering his property for the use of his
creditors, was a valid law under the constitution, in its application
to a debt contracted prior to its passage. The court decided that
it was not, upon the single ground that it impaired the obligation
of that contract. And if it be true that the States cannot pass a
similar law to operate upon contracts subsequently entered into,
it follows inevitably, either that they cannot pass such laws at all,
contrary to the express declaration of the court, as before quoted,
or that such laws do not impair the obligation of contracts subse-
quently entered into; in fine, it is a self-evident proposition that
every contract that can be formed, must either precede or follow
any law by which it may be affected.
I have, throughout the preceding part of this opinion, considered
440 CASES ON CONSTITUTIONAL LAW.
the municipal law of the country where the contract is made as
incorporated with the contract, whether it affects its validity, con-
struction, or discharge. But I think it quite immaterial to stickle
for this position, if it be conceded to me, what can scarcely be
denied, that this municipal law constitutes the law of the contract
so formed, and must govern it throughout. I hold the legal con-
sequences to be the same in whichever view the law, as it affects
the contract, is considered.
I come now to a more particular examination and construction
of the section under which this question arises; and I am free to
acknowledge that the collocation of the subjects for which it pro-
vides, has made an irresistible impression upon my mind, much
stronger, I am persuaded, than I can find language to communicate
to the minds of others.
It declares that "no State shall coin money, emit bills of credit,
make anything but gold and silver coin a tender in payment of
debts." These prohibitions, associated with the powers granted
to congress "to coin money, and to regulate the value thereof, and
of foreign coins," most obviously constitute members of the same
family, being upon the same subject and governed by the same
policy.
This policy was to provide a fixed and uniform standard of value
throughout the United States, by which the commercial and other
dealings between the citizens thereof, or between them and for-
eigners, as well as the moneyed transactions of the government,
should be regulated. For it might well be asked, why vest in con-
gress the power to establish a uniform standard of value by the
means pointed out, if the States might use the same means, and
thus defeat the uniformity of the standard, and, consequently, the
standard itself? And why establish a standard at all, for the gov-
ernment of the various contracts which might be entered into, if
those contracts might afterwards be discharged by a different
standard, or by that which is not money, under the authority of
State tender laws? It is obvious, therefore, -that these prohibitions,
in the 10th section, are entirely homogeneous, and are essential to
the establishment of a uniform standard of value, in the formation
and discharge of contracts. It is for this reason, independent of
the general phraseology which is employed, that the prohibition in
regard to State tender laws will admit of no construction which
would confine it to State laws which have a retrospective operation.
The next class of prohibitions contained in this section consists
of bills of attainder, ex post facto laws, and laws impairing the
obligation of contracts.
OGDEN v. SAUNDERS. 441
Here, too, we observe, as I think, members of the same family
brought together in the most intimate connection with each other.
The States are forbidden to pass any bill of attainder or ex post
faoto law, by which a man shall be punished criminally or penally,
by loss of life, of his liberty, property, or reputation, for an act
which, at the time of its commission, violated no existing law of the
land. Why did the authors of the constitution turn their attention
to this subject, which, at the first blush, would appear to be pe-
culiarly fit to be left to the discretion of those who have the police
and good government of the State under their management and
control? The only answer to be given is, because laws of this
character are oppressive, unjust, and tyrannical; and, as such, are
condemned by the universal sentence of civilized man. The injus-
tice and tyranny which characterizes ex post facto laws, consists
altogether in their retrospective operation, which applies with
equal force, although not exclusively, to bills of attainder.
But if it was deemed wise and proper to prohibit State legislation
as to retrospective laws, which concern, almost exclusively, the
citizens and inhabitants of the particular State in which this legis-
lation takes place, how much more did it concern the private and
political interests of the citizens of all the States, in their com-
mercial and ordinary intercourse with each other, that the same
prohibition should be extended civilly to the contracts which they
might enter into?
If it were proper to prohibit a state legislature to pass a retro-
spective law, which should take from the pocket of one of its own
citizens a single dollar as a punishment for an act which was inno-
cent at the time it was committed; how much more proper was it
to prohibit laws of the same character precisely, which might de-
prive the citizens of other States, and foreigners as well as citizens
of the same State, of thousands, to which, by their contracts, they
were justly entitled, and which they might possibly have realized
but for such State interference? How natural, then, was it, under
the influence of these considerations, to interdict similar legislation
in regard to contracts, by providing that no State should pass laws
impairing the obligation of past contracts? It is true that the first
two of these prohibitions apply to laws of a criminal, and the last
to laws of a civil character; but if I am correct in my view of the
spirit and motives of these prohibitions, they agree in the principle
which suggested them. They are founded upon the same reason,
and the application of it is at least as strong to the last as it is to
the first two prohibitions.
But these reasons are altogether inapplicable to laws of a pros-
CASES ON CONSTITUTIONAL LAW.
pective character. There is nothing unjust or tyrannical in pun-
ishing offenses prohibited by law, and committed in violation of
that law. Nor can it be unjust or oppressive, to declare by law that
contracts subsequently entered into, may be discharged in a way
different from that which the parties have provided, but which
they know, or may know, are liable, under certain circumstances,
to be discharged in a manner contrary to the provisions of their
contract.
Thinking, as I have always done, that the power to pass bank-
rupt laws was intended by the authors of the constitution to be
exclusive in congress, or, at least, that they expected the power
vested in that body would be exercised, so as effectually to prevent
its exercise by the States, it is the more probable that, in refer-
ence to all other interferences of the state legislatures upon the
subject of contracts, retrospective laws were alone in the contem-
plation of the convention. . . .
But why, it has been asked, forbid the States to pass laws mak-
ing anything but gold and silver coin a tender in payment of debts
contracted subsequent as well as prior to the law which author-
izes it; and yet confine the prohibition to pass laws impairing the
obligation of contracts to past contracts, or, in other words, to
future bankrupt laws,- when the consequence resulting from each
is the same, the latter being considered by the counsel as being, in
truth, nothing less than tender laws in disguise.
An answer 'to this question has, in part, been anticipated by
some of the preceding observations. The power to pass bankrupt
laws having been vested in congress, either as an exclusive power,
or under the belief that it would certainly be exercised; it is highly
probable that state legislation upon that subject was not within the
contemplation of the convention; or, if it was, it is quite unlikely
that the exercise of the power, by the state legislatures, would
have been prohibited by the use of terms which, I have endeavored
to show, are inapplicable to laws intended to operate prospectively.
For had the prohibition been to pass laws impairing contracts, in-
stead of the obligation of contracts, I admit that it would have
borne the construction which is contended for, since it is clear
that the agreement of the parties in the first case would be im-
paired as much by a prior as it would be by a subsequent bankrupt
law. It has, besides, been attempted to be shown that the limited
restriction upon state legislation, imposed by the former prohi-
bition, might be submitted to by the States, whilst the extensive
operation of the latter would have hazarded, to say the least of it,
the adoption of the constitution by the state conventions.
OGDEN v. SAUNDERS. 443
But an answer, still more satisfactory to my mind, is this: tender
laws, of the description stated in this section, are always unjust;
and, where there is an existing bankrupt law at the time the con-
tract is made, they can seldom be useful to the honest debtor. They
violate the agreement of the parties to it, without the semblance
of an apology for the measure, since they operate to discharge the
debtor from his undertaking, upon terms variant from those by
which he bound himself, to the injury of the creditor, and unsup-
ported, in many cases, by the plea of necessity. They extend relief
to the opulent debtor, who does not stand in need of it; as well as
to the one who is, by misfortunes, often unavoidable, reduced to
poverty, and disabled from complying with his engagements. In
relation to subsequent contracts, they are unjust when extended
to the former class of debtors, and useless to the second, since
they may be relieved by conforming to the requisitions of the state
bankrupt law, where there is one. Being discharged by this law
from all his antecedent debts, and having his future acquisitions
secured to him, an opportunity is afforded him to become once
more a useful member of society.
If this view of the subject be correct, it will be difficult to prove
that a prospective bankrupt law resembles, in any of its features,
a law which should make anything but gold and silver coin a tender
in payment of debts.
I shall now conclude this opinion by repeating the acknowledg-
ment which candor compelled me to make in its commencement,
that the question which I have been examining is involved in dif-
ficulty and doubt. But if I could rest my opinion in favor of the
constitutionality of the law on which the question arises, on no
other ground than this doubt so felt and acknowledged, tht alone
would, in my estimation, be a satisfactory vindication of it. It is
but a decent respect due to the wisdom, the integrity, and the
patriotism of the legislative body by which any law is passed^ to
presume in favor of its validity, until its violation of the constitu-
tion is proved beyond all reasonable doubt. This has always been
the language of this court, when that subject has called for its
decision; and I know that it expresses the honest sentiments of
each and every member of this bench. I am perfectly satisfied
that it is entertained by those of them from whom it is the mis-
fortune of the majority of the court to differ on the present occa-
sion, and that they feel no reasonable doubt of the correctness of
the conclusion to which their best judgment has conducted them.
444 CASES ON CONSTITUTIONAL LAW.
My opinion is, that the judgment of the court below ought to
be reversed, and judgment given for the plaintiff in error. . . .
[JUSTICES JOHNSON, THOMPSON, and TRIMBLE delivered con-
curring opinions. CHIEF JUSTICE MARSHALL delivered a dissent-
ing opinion, in which JUSTICES DUVALL and STORY concurred.]
Judgment having been entered in favor of the validity of a cer-
tificate of discharge under the state laws in those cases, argued in
connection with Ogden v. Saunders, where the contract was made
between citizens of the State under whose law the discharge was
obtained, and in whose courts the certificate was pleaded, the cause
was further argued by the same counsel, upon the points reserved,
as to the effect of such a discharge in respect to a contract made
with a citizen of another State, and where the certificate was
pleaded in the courts of another State, or of the United States.
JOHNSON, J. I am instructed by the majority of the court finally
to dispose of this cause. The present majority is not the same
which determined the general question on the constitutionality
of state insolvent laws, with reference to the violation of the obli-
gation of contracts. I now stand united with the minority on the
former question, and, therefore, feel it due to myself and the com-
munity to maintain my consistency.
The question now to be considered is, whether a discharge of a
debtor under a state insolvent law, would be valid against a cred-
itor or citizen of another State, who has never voluntarily subjected
himself to the state laws, otherwise than by the origin of his con-
tract.
As between its own citizens, whatever be the origin of the con-
tract, there is now no question to be made on the effect of such a
discharge; nor is it to be questioned, that a discharge not valid
under the constitution in the courts of the United States, is equally
invalid in the state courts. The question to be considered goes to
the invalidity of the discharge altogether, and, therefore, steers
clear of that provision in the constitution which purports to give
validity in every State to the records, judicial proceedings, and so
forth, o.f each State.
The question now to be considered, was anticipated in the case
of Sturges v. Crowninshield, 4 W., 122, when the court, in the
close of the opinion delivered, declared that it means to confine
OGDEN v. SAUNDERS. 445
its views to the case then under consideration, and not to commit
itself as to those in which the interests and rights of a citizen of
another State are implicated.
The question is one partly international, partly constitutional.
My opinion on the subject is briefly this: that the provision in the
constitution which gives the power to the general government to
establish tribunals of its own in every State, in order that the citi-
zens of other States or sovereignties might therein prosecute their
rights under the jurisdiction of the United States, had for its object
an harmonious distribution of justice throughout the Union; to
confine the States, in the exercise of their judicial sovereignty, to
cases between their own citizens; to prevent, in fact, the exercise
of that very power over the rights of citizens of other States, which
the origin of the contract might be supposed to give to each State;
and thus, to obviate that conflictus legum, which has employed the
pens of Huberus and various others, and which any one who studies
the subject will plainly perceive it is infinitely more easy to prevent
than to adjust.
These conflicts of power and right necessarily arise only after
contracts are entered into. Contracts, then, become the appropri-
ate subjects of judicial cognizance; and if the just claims which
they give rise to, are violated by arbitrary laws,, or if the course of
distributive justice be turned aside, or obstructed by legislative
interference, it becomes a subject of jealousy, irritation, and na-
tional complaint or retaliation.
It is not unimportant to observe, that the constitution was
adopted at the very period when the courts of Great Britain were
engaged in adjusting the conflicts of right which arose upon their
own bankrupt law, among the subjects of that crown in the several
dominions of Scotland, Ireland, and the West Indies. The first
case we have on the effect of foreign discharges, that of Ballantine
v. Golding, 1 Cooke's Bank. Law, 487, occurred in 1783, and the
law could hardly be held settled before the case of Hunter v. Potts,
4 Term Rep., 182, which was decided in 1791.
Any one who will take the trouble to investigate the subject,
will, I think, be satisfied, that although the British courts profess
to decide upon a principle of universal law, when adjudicating
upon the effect of a foreign discharge, neither the passage in Vattel,
to which they constantly refer, nor the practice and doctrines of
other nations, will sustain them in the principle to the extent in
which they assert it. It was all-important to a great commercial
nation, the creditors of all the rest of the world, to maintain the
doctrine as one of universal obligation, that the assignment of the
446 CASES ON CONSTITUTIONAL LAW.
bankrupt's effects, under a law of the country of the contract,
should carry the interest in his debts, wherever his debtor may
reside; and that no foreign discharge of his debtor should operate
against debts contracted with the bankrupt in his own country.
But I think it is perfectly clear that in the United States, a different
doctrine has been established; and, since the power to discharge
the bankrupt is asserted on the same principle with the power to
assign his debts, that the departure from it in the one instance
carries with it a negation of the principle altogether.
It is vain to deny that it is now the established doctrine in
England, that the discharge of a bankrupt shall be effectual against
contracts of the State that give the discharge, whatsoever be the
allegiance or country of the creditor. But I think it equally clear,
that this is a rule peculiar to her jurisprudence, and that reciprocity
is the general rule of other countries; that the effect given to such
discharge is so much a matter of comity, that the States of the
European continent, in all cases, reserve the right of deciding
whether reciprocity will not operate injuriously upon their own
citizens.
Huberus, in his third axiom on this subject, puts the effect of
such laws upon the ground of courtesy, and recognizes the reserva-
tion that I have mentioned; other writers do the same.
I will now examine the American decision on this subject; and,
first, in direct hostility with the received doctrines of the British
courts, it has been solemnly adjudged in this court, and, I believe,
in every state court of the Union, that, notwithstanding the laws
of bankruptcy in England, a creditor of the bankrupt may levy
an attachment on a debt due the bankrupt in this country, and
appropriate the proceeds to his own debt. . . . [Here follows
a consideration of the cases of Harrison v. Sterry, 5 Cranch, 289;
Baker v. Wheaton, 5 Mass., 509; Watson v. Bourne, 10 Mass., 337;
Assignees of Topham v. Chapman, 1 Const. Eep. (S. C.), 283,
and Phillips v. Hunter, 2 H. Black.. 402.]
I think it, then, fully established, that in the United States a
creditor of the foreign bankrupt may attach the debt due the for-
eign bankrupt, and apply the money to the satisfaction of his pe-
culiar debt, to the prejudice of the rights of the assignees or other
creditors.
I do not here speak of assignees, or rights created, under the
bankrupt's own deed; those stand on a different ground, and do
not affect this question. I confine myself to assignments, or trans-
fers, resting on the operation of the laws of the country, independ-
OGDEN v. SAUNDERS. 447
ent of the bankrupt's deed; to the rights and liabilities of debtor,
creditor, bankrupt, and assignees, as created by law.
What is the actual bearing of this right to attach, so generally
recognized by our decisions?
It imports a general abandonment of the British principles; for,
according to their laws, the assignee alone has the power to release
the debtor. But the right to attach necessarily implies 'the right
to release the debtor, and that right is here asserted under the laws
of a State which is not the State of the contract.
So, also, the creditor of the bankrupt is, by the laws of his
country, entitled to no more than a ratable participation in the
bankrupt's effects. But the right to attach imports a right to ex-
clusive satisfaction, if the effects so attached should prove adequate
to make satisfaction.
The right to attach also imports the right to sue the bankrupt;
and who would impute to the bankrupt law of another country,
the power to restrain the citizens of these States in the exercise of
their right to go into the tribunals of their own country for the
recovery of debts, wherever they may have originated? Yet, uni-
versally, after the law takes the bankrupt into its own hands, his
creditors are prohibited from suing.
Thus much for the law of this case in an international view. I
will consider it with reference to the provisions of the constitution.
I have said above, that I had no doubt the erection of a distinct
tribunal for the resort of citizens of other States, was introduced
ex industria, into the constitution, to prevent, among other evils,
the assertion of a power over the rights of the citizens of other
States, upon the metaphysical ideas of the British courts on the
subject of jurisdiction over contracts. And there was good reason
for it; for, upon that principle it is, that a power is asserted over
the rights of creditors which involves a mere mockery of justice.
Thus, in the case of Burrows v. Jamineau (reported in 2 Strange,
and better reported in Moseley, 1, and some other books), the
creditor, residing in England, was cited, probably, by a placard on
a door-post in Leghorn, to appear there to answer to his debtor;
and his debt passed upon by the court, perhaps, without his having
ever heard of the institution of legal process to destroy it.
The Scotch, if I remember correctly, attach the summons on the
flagstaff, or in the market-place, at the shore of Leith; and the
civil law process by proclamation, or viis et modis, is not much
better, as the means of subjecting the rights of foreign creditors to
their tribunals.
All this mockery of justice, and the jealousies, recriminations,
448 CASES ON CONSTITUTIONAL LAW.
and perhaps retaliations which might grow out of it are avoided,
if the power of the States over contracts, after they become the
subject exclusively of judicial cognizance, is limited to the con-
troversies of their own citizens.
And it does appear to me almost incontrovertible, that the
States cannot proceed one step further without exercising a power
incompatible with the acknowledged powers of other States, or of
the United States, and with the rights of the citizens of other
States.
Every bankrupt or insolvent system in the world must partake
of the character of a judicial investigation. Parties whose rights
are to be affected, are entitled to a hearing. Hence every system,
in common with the particular system now before us, professes to
summon the creditors before some tribunal, to show cause against
granting a discharge to the bankrupt.
But on what principle can a citizen of another State be forced
into the courts of a State for this investigation? The judgment to
be passed is to prostrate his rights; and on the subject of these
rights the constitution exempts him from the jurisdiction of the
state tribunals, without regard to the place where the contract may
originate. In the only tribunal to which he owes allegiance, the
State insolvent or bankrupt 'laws cannot be carried into effect;
they have a law of their own on the subject; 1 and a certificate of
discharge under any other law would not be acknowledged as valid
even in the courts of the State in which the court of the United
States that grants it is held. Where is the reciprocity? Where
the reason upon which the state courts can thus exercise a power
over the suitors of that court, when that court possesses no such
power over the suitors of the state courts?
In fact, the constitution takes away the only ground upon which
this eminent dominion over particular contracts can be claimed,
which is that of sovereignty. For the constitutional suitors in the
courts of the United States are not only exempted from the neces-
sity of resorting to the state tribunals, but actually cannot be forced
into them. If, then, the law of the English courts had ever been
practically adopted in this country in the state tribunals, the con-
stitution has produced such a radical modification of state power
over even their own contracts, in the hands of individuals not
subject to their jurisdiction, as to furnish ground for excepting the
rights of such individuals from the power which the States un-
questionably possess over their own contracts, and their own
citizens.
i 2 Stats, at Large,
OGDEN v. SAUNDERS. 449
Follow out the contrary doctrine in its consequences, and see
the absurdity it will produce.
The constitution has constituted courts professedly independent
of state power in their judicial course; and yet the judgments of
those courts are to be vacated, and their prisoners set at large,
under the power of the state courts, or of the state laws, without
the possibility of protecting themselves from its exercise.
I cannot acquiesce in an incompatibility so obvious.
No one has ever imagined that a prisoner in confinement, under
process from the courts of the United States, could avail himself
of the insolvent laws of the State in which the court sits. And
the reason is, that those laws are municipal and peculiar, and ap-
pertaining exclusively to the exercise of state power in that sphere
in which it is sovereign, that is, between its own citizens, between
suitors subjected to state power exclusively, in their controversies
between themselves.
In the courts of the United States, no higher power is asserted
than that of discharging the individual in confinement under its
own process. This affects not to interfere with the rights of cred-
itors in the state courts, against the same individual. Perfect reci-
procity would seem to indicate that no greater power should be
exercised under state authority over the rights of suitors who
belong to the United States jurisdiction. Even although the prin-
ciple asserted in the British courts, of supreme and exclusive power
over their contracts, had obtained in the courts of the United
States, I must think that power has undergone a radical modifi-
cation by the judicial powers granted to the United States.
I, therefore, consider the discharge, under a state law, as incom-
petent to discharge a debt due a citizen of another State; and it
follows that the plea of a discharge here set up, is insufficient to
bar the rights of the plaintiff.
It becomes necessary, therefore, to consider the other errors
assigned in behalf of the defendant; and, first, as to the plea of
the act of limitations.
The statute pleaded here is not the act of Louisiana, but that
of New York; and the question is not raised by the facts or aver-
ments, whether he could avail himself of that law if the full time
had run out before his departure from New York, as was supposed
in argument. The plea is obviously founded on the idea that the
statute of the State of the contract was generally pleadable in any
other State, a doctrine that will not bear argument.
The remaining error assigned has regard to the sum for which
the judgment is entered, it being for a greater amount than the
29
450 CASES ON CONSTITUTIONAL LAW
nominal amount of the bills of exchange on which the suit was
brought, and which are found by the verdict.
There has been a defect of explanation on this subject; but from
the best information afforded us, we consider the amount for which
judgment is entered, as made up of principal, interest, and dam-
ages, and the latter as being legally incident to the finding of the
bills of exchange, and their non-payment, and assessed by the
court under a local practice consonant with that by which the
amount of written contracts is determined, by reference to the
prothonotary, in many other of our courts. We, therefore, see
no error in it. The judgment below will, therefore, be affirmed.
And the purport of this adjudication, as I understand it, is, that
as between citizens of the same State, a discharge of a bankrupt
by the laws of that State is valid as it affects posterior contracts;
that as against creditors, citizens of other States, it is invalid as to
all contracts.
The propositions which I have endeavored to maintain in the
opinion which I have delivered are these:
1. That the power given to the United States to pass bankrupt
laws is not exclusive.
2. That the fair and ordinary exercise of that power by the
States does not necessarily involve a violation of the obligation
of contracts, multi fortiori of posterior contracts.
3. But when, in the exercise of that power, the States pass
beyond their own limits, and the rights of their own citizens, and
act upon the rights of citizens of other States, there arises a con-
flict of sovereign power, and a collision with the judicial powers
granted to the United States, which renders the exercise of such
a power incompatible with the rights of other States, and with
the constitution of the United States.
MR. JUSTICE WASHINGTON, MR. JUSTICE THOMPSON, and MR.
JUSTICE TRIMBLE dissented.
MR. CHIEF JUSTICE MARSHALL, MR. JUSTICE DUVALL, and MR.
JUSTICE STORY, assented to the judgment, which was entered for
the defendant in error. Judgment affirmed.
CHARLES RIVER BRIDGE V. WARREN BRIDGE. 451
THE PROPRIETORS OF THE CHAELES RIVER BRIDGE
v. THE PROPRIETORS OF THE WARREN
BRIDGE ET AL.
11 Peters, 420. Decided 1837.
Error to the supreme judicial court of the commonwealth of
Massachusetts. The material facts and the nature of the case
appear in the opinion of the court. . . .
TANEY, C. J., delivered the opinion of the court.
The questions involved in this case are of the gravest char-
acter, and the court have given to them the most anxious and
deliberate consideration. The value of the right claimed by the
plaintiffs is large in amount; and many persons may no doubt
be seriously affected in their pecuniary interests by any decisions
which the court may pronounce; and the questions which have
been raised as to the power of the several States, in relation to
the corporations they have chartered, are pregnant with impor-
tant consequences; not only to the individuals who are concerned
in the corporate franchises, but to the communities in which they
exist. The court are fully sensible that it is their duty, in exer-
cising the high powers conferred on them by the constitution of
the United States, to deal with these great and extensive interests
with the utmost caution; guarding, as far as they have the power
to do so, the rights of property, and at the same time carefully ab-
staining from any encroachment on the rights reserved to the
States.
It appears, from the record, that in the year 1650, the legisla-
ture of Massachusetts granted to the president of Harvard College
"the liberty and power" to dispose of the ferry from Charlestown
to Boston, by lease or otherwise, in the behalf and for the behoof
of the college; and that, under that grant, the college continued
to hold and keep the ferry by its lessees or agents, and to receive
the profits of it, until 1785. In the last-mentioned year, a peti-
tion was presented to the legislature, by Thomas Russell and others,
stating the inconvenience of the transportation by ferries, over
Charles River, and the public advantages that would result from
a bridge; and praying to be incorporated for the purpose of erect-
ing a bridge in the place where the ferry between Boston and
Charlestown was then kept. Pursuant to this petition, the legis-
lature, on the 9th of March, 1785, passed an act incorporating a
452 CASES ON CONSTITUTIONAL LAW.
company, by the name of "The Proprietors of the Charles Kiver
Bridge," for the purposes mentioned in the petition. Under this
charter the company were empowered to erect a bridge, in "the
place where the ferry was then kept;" certain tolls were granted,
and the charter was limited to forty years, from the first opening of
the bridge for passengers; and from the time the toll commenced,
until the expiration of this term, the company were to pay two
hundred pounds, annually, to Harvard College; and at the expira-
tion of the forty years the bridge was to be the property of the
commonwealth; "saving (as the law expresses it), to the said col-
lege or university, a reasonable annual compensation, for the an-
nual income of the ferry, which they might have received had
not the said bridge been erected/'
The bridge was accordingly built, and was opened for passen-
gers on the 17th of June, 1786. In 1792, the charter was extended
to seventy years, from the opening of the bridge; and at the ex-
piration of that time it was to belong to the commonwealth. The
corporation have regularly paid to the college the annual sum
of two hundred pounds, and have performed all of the duties
imposed on them by the terms of their charter.
In 1828, the legislature of Massachusetts incorporated a com-
pany by the name of "The Proprietors of the Warren Bridge,"
for the purpose of erecting another bridge over Charles Kiver. This
bridge is only sixteen rods, at its commencement, on the Charles-
town side, from the commencement of the bridge of the plaintiffs;
and they are about fifty rods apart at their termination on the
Boston side. The travelers who pass over either bridge, proceed
from Charlestown square, which receives the travel of many great
public roads leading from the country; and the passengers and
travellers who go to and from Boston used to pass over the Charles
River Bridge, from and through this square, before the erection
of the Warren Bridge.
The Warren Bridge, by the terms of its charter, was to be sur-
rendered to the State, as soon as the expenses of the proprietors
in building and supporting it should be reimbursed; but this
period was not, in any event, to exceed six years from the time
the company commenced receiving toll.
When the original bill in this case was filed, the Warren Bridge
had not been built; and the bill was filed after the passage of
the law, in order to obtain an injunction to prevent its erection,
and for general relief. The bill, among other things, charged,
as a ground for relief, that the act for the erection of the Warren
Bridge impaired the obligation of the contract between the com-
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 453
monwealth and the proprietors of the Charles River Bridge; and
was therefore repugnant to the constitution of the United States.
Afterwards, a supplemental bill was filed, stating that the bridge
had then been so far completed, that it had been opened for
travel, and that divers persons had passed over, and thus avoided
the payment of the toll, which would otherwise have been received
by the plaintiffs. The answer to the supplemental bill admitted
that the bridge had been so far completed that foot passengers
could pass; but denied that any persons but the workmen and
the superintendents had passed over with their consent. In this
state of the pleadings, the cause came on for hearing in the
supreme judicial court for the county of Suffolk, in the common-
wealth of Massachusetts, at November term, 1829; and the court
decided that the act incorporating the Warren Bridge did not
impair the obligation of the contract with the proprietors of the
Charles River Bridge, and dismissed the complainants' bill: and
the case is brought here by writ of error from that decision. It
is, however, proper to state, that it is understood that the state
court was equally divided upon the question; and that the decree
dismissing the bill upon the ground above stated, was pronounced
by a majority of the court, for the purpose of enabling the com-
plainants to bring the question for decision before this court.
In the argument here, it was admitted, that since the filing of
the supplemental bill, a sufficient amount of toll had been received
by the proprietors of the Warren Bridge to reimburse all their
expenses, and that the bridge is now the property of the State, and
has been made a free bridge; and that the value of the franchise
granted to the proprietors of the Charles Eiver Bridge has by
this means been entirely destroyed.
If the complainants deemed these facts material, they ought to
have been brought before the state court, by a supplemental bill;
and this court, in pronouncing its judgment, cannot regularly
notice them. But in the view which the court take of this sub-
ject, these additional circumstances would not in any degree influ-
ence their decision. And as they are conceded to be true, and the
case has been argued on that ground, and the controversy has been
for a long time depending, and all parties desire a final end of it;
and as it is of importance to them, that the principles on which
this court decide should not be misunderstood, the case will be
treated. in the opinion now delivered, as if these admitted facts
were regularly before us.
A good deal of evidence has been offered to show the nature
and extent of the ferry right granted to the college; and also to
454 CASES ON CONSTITUTIONAL LAW.
show the rights claimed by the proprietors of the bridge at dif-
ferent times, by virtue of their charter; and the opinions enter-
tained by committees of the legislature, and others, upon that
subject. But as these circumstances do not affect the judgment
of this court, it is unnecessary to recapitulate them.
The plaintiffs in error insist, mainly, upon two grounds:
1. That by virtue of the grant of 1650, Harvard College was
entitled, in perpetuity, to the right of keeping a ferry between
Charlestown and Boston; that this right was exclusive; and that
the legislature had not the power to establish another ferry on the
same line of travel, because it would infringe the rights of the
college; and that these rights, upon the erection of the bridge in
the place of the ferry, under the charter of 1785, were transferred
to, and became vested in "the proprietors of the Charles River
Bridge;" and that under, and by virtue of this transfer of the
ferry right, the rights of the bridge company were as exclusive
in that line of travel, as the rights of the ferry. 2. That inde-
pendently of the ferry right, the acts of the legislature of Massa-
chusetts of 1785 and 1792, by their true construction, necessarily
implied that the legislature would not authorize another bridge,
and especially a free one, by the side of this, and placed in the
same line of travel, whereby the franchise granted to the "pro-
prietors of the Charles River Bridge" should be rendered of no
value; and the plaintiffs in error contend, that the grant of Jhe
ferry to the college, and of the charter to the proprietors of the
bridge, are both contracts on the part of the State; and that the
law authorizing the erection of the Warren Bridge in 1828 impairs
the obligation of one or both of these contracts.
It is very clear, that in the form in which this case comes before
us, being a writ of error to a state court, the plaintiffs, in claim-
ing under either of these rights, must place themselves on the
ground of contract, and cannot support themselves upon the prin-
ciple that the law divests vested rights. It is well settled by the
decisions of this court, that a state law may be retrospective in its
character, and may divest vested rights, and yet not violate the
constitution of the United States, unless it also impairs the obli-
gation of a contract. In 2 Peters, 413, Satterlee" vr. Matthewson,
this court, in speaking of the state law then before them, and inter-
preting the article in the constitution of the United States which
forbids the States to pass laws impairing the obligation of con-
tracts, uses the following language: "It (the state law) is said to
be retrospective; be it so. But rgtrpspective. lawjs .JghJLoh do
not impair the obligation of contracts, or partake of the character
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 455
of ex post facto laws, are not condemned or forbidden by any part
of that instrument" (the constitution of the United States). And
in another passage in the same case, the court say: "The objec-
tion, however, most pressed upon the court, and relied upon by
the counsel for the plaintiff in error, was, that the effect of this
act was to divest rights which were vested by law in Satterlee.
There is certainly no part of the constitution of the United States
which applies to a state law of this description; nor are we aware
of any decision of this, or of any circuit court, which has con-
demned such a law upon this ground, provided its effect be not
to impair the obligation of a contract." The same principles were
reaffirmed in this court, in the late case of Watson and others v.
Mercer, decided in 1834, 8 Pet., 110: "As to the first point (say
the court), it is clear that this court has no right to pronounce
an act of the state legislature void, as contrary to the constitution
of the United States, from the mere fact that it divests antecedent
vested rights of property. The constitution of the United Stales
does not prohibit the States from passing retrospective laws gen-
erally, but only ex post facto laws."
After these solemn decisions of this court, it is apparent that
the plaintiffs in error cannot sustain themselves here, either upon
the ferry right, or the charter to the bridge, upon the ground
that vested rights of property have been divested by the legisla-
ture. And whether they claim under the ferry right, or the char-
ter to the bridge, they must show that the title which they claim,
was acquired by contract, and that the terms of that contract have
been violated by the charter to the Warren Bridge. In other
words, they -must show that tha State had entered into a contract
with them, or those under whom they claim, not . to establish a
free bridge at the place where -the Warren Bridge is erected. Such,
and such only, are the principles upon which the plaintiffs in error
can claim relief in this case.
The nature and extent of the ferry right granted to Harvard
College, in 1650, must depend upon the laws of Massachusetts;
and the character and extent of this right has been elaborately
discussed at the bar. But in the view which the court take of tho
case before them, it is not necessary to express any opinion on
these questions. For assuming that the grant to Harvard College,
and the charter to the bridge company, were both contracts, and
that the ferry right was as extensive and exclusive as the plain-
tiffs contend for; still they cannot enlarge the privileges granted to
the bridge, unless it can be shown, that the rights of Harvard
College in this ferry have, by assignment, or in some other way,
456 CASES ON CONSTITUTIONAL LAW.
been transferred to the proprietors of the Charles River Bridge,
and still remain in existence, vested in them, to the same extent
with that in which they were held and enjoyed by the college
before the bridge was built. . . . [The court holds that this
cannot be shown.]
It is however said, that the payment of the 200 a year to the
college, as provided for in the law, gives to the proprietors of the
bridge an equitable claim to be treated as the assignees of their
interest; and by substitution, upon chancery principles, to be
clothed with all their rights.
The answer to this argument is obvious. This annual sum was
intended to be paid out of the proceeds of the tolls which the
company were authorized to collect. The amount of the tolls,
it must be assumed, was graduated with a view to this encum-
brance, as well as to every other expenditure to which the com-
pany might be subjected, under the provisions of their charter.
The tolls were to be collected from the public, and it was intended
that the expense of the annuity to Harvard College should be
borne by the public; and it is manifest that it was so borne, from
the amount which it is admitted they received, until the Warren
Bridge was erected. Their agreement, therefore, to pay that sum
can give no equitable right to be regarded as the assignees of the
college, and certainly can furnish no foundation for presuming
a conveyance; and as the proprietors of the bridge are neither
the legal nor equitable assignees of the college, it is not easy to per-
ceive how the ferry franchise can be invoked in aid of their claims,
if it were even still a subsisting privilege; and had not been re-
sumed by the State, for the purpose of building a bridge in its
place.
Neither can the extent of the pre-existing ferry right, whatever
it may have been, have any influence upon the construction of the
written charter for the bridge. It does not, by any means, follow,
that because the legislative power in Massachusetts, in 1650, may
have granted to a justly favored seminary of learning the exclusive
right of ferry between Boston and Charlestown, they would, in
1785, give the same extensive privilege to another corporation,
who were about to erect a bridge in the same phce. The fact that
such a right was granted to the college cannot, by any sound
rule of construction, be used to extend the privileges of the bridge
company beyond what the words of the charter naturally and legally
import. Increased population longer experienced in legislation,
the different character of "the corporation which owned the ferry
from that which owned the bridge, might well have induced a
CHARLES RIVER BRIDGE V. WARREN BRIDGE. 457
change in the policy of the State in this respect; and as the
franchise of the ferry, and that of the bridge, are different in
their nature, and were each established by separate grants, which
have no words to connect the privileges of the one with the privi-
leges of the other, there is no rule of legal interpretation which
would authorize the court to associate these grants together, and
to infer that any privilege was intended to be given to the bridge
company, merely because it had been confererd on the ferry. The
charter to the bridge is a written instrument which must speak
for itself, and be interpreted by its own terms.
This brings us to the act of the legislature of Massachusetts,
of 1785, by which the plaintiffs were incorporated by the name
of "The Proprietors of the Charles River Bridge;" and it is here,
and in the law of 1792, prolonging their charter, that we must look
for the extent and nature of the franchise conferred upon the
plaintiffs.
Much has been said in the argument of the principles of con-
struction by which this law is to be expounded, and what under-
takings, on the part of the State, may be implied. The court
think there can be no serious difficulty on that head. It is the
grant of certain franchises by the public to a private corporation,
and in a matter where the public interest is concerned. The rule
of construction in such cases is well settled, both in England and
by the decisions of our own tribunals. In 2 Barn. & Adol., 793,
in the case of the proprietors of the Stourbridge Canal v.
Wheeley and others, the court say, "The canal having been made
under an act of parliament, the rights of the plaintiffs are derived
entirely from that act. This, like many other cases, is a bargain
between a company of adventurers and the public, the terms of
which are expressed in the statute; and the rule of construction,
in all such cases, is now fully established to be this; that any
ambiguity in the terms of the contract must operate against the
adventurers, and in favor of the public, and the plaintiffs can claim
nothing that is not clearly given them by the act." And the doc-
trine thus laid down is abundantly sustained by the authorities
referred to in this decision. The case itself was as strong a one
as could well be imagined for giving to the canal company, by
implication, a right to the tolls they demanded. Their canal had
been used by the defendants, to a very considerable extent, in
transporting large quantities of coal. The rights of all persons
to navigate the canal were expressly secured by the act of parlia-
ment; so that the company could not prevent them from using
it, and the toll demanded was admitted to be reasonable. Yet,
458 CASES ON CONSTITUTIONAL LAW.
as they only used one of the levels of the canal, and did not pass
through the locks; and the statute, in giving the right to exact
toll, had given it for articles which passed "through any one or
more of the locks," and had said nothing as to toll for navigating
one of the levels; the court held that the right to demand toll, in
the latter case, could not be implied, and that the company were
not entitled to recover it. This was a fair case for an equitable
construction of the act of incorporation, and for an implied grant;
if such a rule of construction could ever be permitted in a law of
that description. For the canal had been made at the expense
of the company; the defendants had availed themselves of the
fruits of their labors, and used the canal freely and extensively
for their own profit. Still the right to exact toll could not be
implied, because such a privilege was not found in the charter.
Borrowing, as we have done, our system of jurisprudence from
the English law; and having adopted, in every other case, civil
and criminal, its rules for the construction of statutes; is there
anything in our local situation, or in the nature of our political
institutions, which should lead us to depart from the principle
where corporations are concerned? Are we to apply to acts of
incorporation a rule of construction differing from that of the Eng-
lish law, and, by implication, make the terms of a charter in one
of the States, more unfavorable to the public, than upon an act of
parliament, framed in the same words, would be sanctioned in an
English court? Can any good reason be assigned for excepting
this particular class of cases from the operation of the general
principle, and for introducing a new and adverse rule of construc-
tion in favor of corporations, while we adopt and adhere to the
rules of construction known to the English common law, in every
other case, without exception? "We think not; and it would present
a singular spectacle, if, while the courts in England are restrain-
ing, within the strictest limits, the spirit of monopoly, and exclu-
sive privileges in nature of monopolies, and confining corporations
to the privileges plainly given to them in their charter, the courts
of this country should be found enlarging these privileges by
implication; and construing a statute more unfavorably to the
public, and to the rights of the community, than would be done
in a like case in an English court of justice.
But we are not now left to determine, for tne first time, the rules
by which public grants are to be construed in this country. The
subject has already been considered in this court; and the rule
of construction, above stated, fully established. [Here follow
CHARLES RIVER BRIDGE V. WARREN BRIDGE 459
citations to U. S. v. Arredondo, 6 Pet., 738; Jackson v. Lam-
phire, 3 Pet., 289; and Beaty v. The Lessee of Knowles, 4 Pet.,
168.]
But the case most analogous to this, and in which the question
came more directly before the court, is the case of the Providence
Bank v. Billings and Pittman, 4 Pet.-, 514, and which was decided
in 1830. In that case, it appeared that the legislature of Ehode
Island had chartered the bank, in the usual form of such acts
of incorporation. The charter contained no stipulation on the part
of the State, that it would not impose a tax on the bank, nor any
reservation of the right to do so. It was silent on this point.
Afterwards, a law was passed, imposing a tax on all banks in the
State; and the right to impose this tax was resisted by the Provi-
dence Bank, upoii the ground that, if the State could impose a tax,
it might tax so heavily as to render the franchise of no value,
and destroy the institution; that the charter was a contract, and
that a power which may in effect destroy the charter is inconsistent
with it, and is impliedly renounced by granting it. But the court
said that the taxing power was of vital importance, and essential
to the existence of government; and that the relinquishment of
such a power is never to be assumed. And in delivering the opin-
ion of the court, the late chief justice states the principle, in
the following clear and emphatic language. Speaking of the
taxing power, he says, "as the whole community is interested in
retaining it undiminished, that community has a right to insist
that its abandonment ought not to be presumed, in a case in
which the deliberate purpose of the State to abandon it does not
appear." The case now' before the court is, in principle, precisely
the same. It is a charter from a State. The act of incorpora-
tion is silent in relation to the contested power. The argu-
ment in favor of the proprietors of the Charles Eiver Bridge is
the same, almost in words, with that used by the Providence
Bank; that is, that the power claimed by the State, if it exists,
may be so used as to destroy the value of the franchise they have
granted to the corporation. The argument must receive the same
answer; and the fact that the power has been already exercised
so as to destroy the value of the franchise, cannot in any degree
affect the principle. The existence of the power does not, and
cannot, depend upon the circumstance of its having been exercised
or not.
It may, perhaps, be said that in the case of the Providence Bank,
this court were speaking of the taxing power; which is of vital
importance to the very existence of every government. But the
object and end of all government is to promote the happiness
460 CASES ON CONSTITUTIONAL LAW.
and prosperity of the community by which it is established; and it
can never be assumed, that the government intended to diminish
its power of accomplishing the end for which it was created. And
in a country like ours, free, active, and enterprising, continually
advancing in numbers and wealth, new channels of communica-
tion are daily found necessary, both for travel and trade; and are
essential to the comfort, convenience, and prosperity of the peo-
ple. A State ought never to be presumed to surrender this power,
because, like the taxing power, the whole community have an
interest in preserving it undiminished. And when a corporation
alleges, that a State has surrendered, for seventy years, its power
of improvement and public accommodation, in a great and impor-
tant line of travel, along which a vast number of its citizens must
daily pass, the community have a right to insist, in the language
of this court above quoted, "that its abandonment ought not to
be presumed in a case in which the deliberate purpose of the State
to abandon it does not appear." The continued existence of a gov-
ernment would be of no great value, if by implications and pre-
sumptions it was disarmed of the powers necessary to accomplish
the ends of its creation; and the functions it was designed to
perform, transferred to the hands of privileged corporations. The
rule of construction announced by the court was not confined to
the taxing power; nor is it so limited in the opinion delivered.
On the contrary, it was distinctly placed on the ground that the
interests of the community were concerned in preserving, undi-
minished, the power then in question; and whenever any power
of the State is said to be surrendered or diminished, whether it
be the taxing power or any other affecting the public interest, the
same principle applies, and the rule of construction must be the
same. No one will question that the interests of the great body
of the people of the State would, in this instance, be affected by
the surrender of this great line of travel to a single corporation,
with the right to exact toll, and exclude competition for seventy
years. While the rights of private property are sacredly guarded,
we must not forget that the community also have rights, and that
the happiness and well-being of every citizen depends on their
faithful preservation.
Adopting the rule of construction above stated as the settled
one, we proceed to apply it to the charter of 1785 to the proprietors
of the Charles River Bridge. This act of incorporation is in the
usual form, and the privileges such as are commonly given to cor-
porations of that kind. It confers on them the ordinary faculties
of a corporation, for the purpose of building the bridge; and
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 461
establishes certain rates of toll, which the company are author-
ized to take. This is the whole grant. There is no exclusive priv-
ilege given to them over the waters of Charles Kiver above or
below their bridge. No right to erect another bridge themselves,
nor to prevent other persons from erecting one. No engagement
from the State that another shall not be erected; and no under-
taking not to sanction competition, nor to make improvements
that may diminish the amount of its income. Upon all these sub-
jects the charter is silent; and nothing is said in it about a line
of travel, so much insisted on in the argument, in which they
are to have exclusive privileges. No words are used from which an
intention to grant any of these rights can be inferred. If the
plaintiff is entitled to them, it must be implied, simply from the
nature of the grant, and cannot be inferred from the words by
which the grant is made.
The relative position of the Warren Bridge has already been de-
scribed. It does not interrupt the passage over the Charles Eiver
Bridge, nor make the way to it or from it less convenient. None
of the faculties or franchises granted to that corporation have
been revoked by the legislature; and its right to take the tolls
granted by the charter remains unaltered. In short, all the fran-
chises and rights of property enumerated in the charter, and there
mentioned to have been granted to it remain unimpaired. But
its income is destroyed by the Warren Bridge; which, being free,
draws off the passengers and property which would have gone
over it, and renders their franchise of no value. This is the
gist of the complaint. For it is not pretended that the erection
of the Warren Bridge would have done them any injury, or in
any degree affected their right of property, if it had not dimin-
ished the amount of their tolls. In order then to entitle them-
selves to relief, it is necessary to show that the legislature con-
tracted not to do the act of which they complain; and that
they impaired or, in other words, violated that contract by the
erection of the Warren Bridge.
The inquiry then is, does the charter contain such a contract
on the part of the State? Is there any such stipulation to be found
in that instrument? It must be admitted on all hands, that there
is none, no words that even relate to another bridge, or to the
diminution of their tolls, or to the line of travel. If a contract
on that subject can be gathered from the charter, it must be by
implication, and cannot be found in the words used. Can such
an agreement be implied? The rule of construction before stated
is an answer to the question. In charters of this description, no
462 CASES ON CONSTITUTIONAL LAW.
rights are taken from the public, or given to the corporation,
beyond those which the words of the charter, by their natural and
proper construction, purport to convey. There are no words which
import such a contract as the plaintiffs in error contend for, and
none can be implied; and the same answer must be given to them
that was given by this court to the Providence Bank. The whole
community are interested in this inquiry, and they have a right to
require that the power of promoting their comfort and conveni-
ence, and of advancing the public prosperity by providing safe,
convenient, and cheap ways for the transportation of produce and
the purposes of travel, shall not be construed to have been surren-
dered or diminished by the State, unless it shall appear by plain
words that it was intended to be done.
But the case before the court is even still stronger against
any such implied contract as the plaintiffs in error contend for.
The Charles Eiver Bridge was completed in 1786. The time
limited for the duration of the corporation by their original char-
ter expired in 1826. When, therefore, the law passed author-
izing the erection of the Warren Bridge, the proprietors of Charles
River Bridge held their corporate existence under the law of 1792,
which extended their charter for thirty years; and the rights,
privileges, and franchises of the company must depend upon the
construction of the last-mentioned law, taken in connection with
the act of 1785.
The act of 1792, which extends the charter of this bridge, incor-
porates another company to build a bridge over Charles River;
furnishing another communication with Boston, and distant only
between one and two miles from the old bridge.
The first six sections of this act incorporate the proprietors of
the West Boston Bridge, and define the privileges, and describe
the duties, of that corporation. In the 7th section there is the
following recital: "And whereas the erection of Charles River
Bridge was a work of hazard and public utility, and another bridge
in the place of West Boston Bridge may diminish the emoluments
of Charles River Bridge; therefore, for the encouragement of enter-
prise/' they proceed to extend the charter of the Charles River
Bridge, and to continue it for the term of seventy years fron? the
day the bridge was completed j subject to the conditions prescribed
in the original act, and to be entitled to the same tolls. It appears,
then, that by the same act that extended this charter, the legisla-
ture established another bridge, which -they knew would lessen
its profits; and this, too, before the expiration of the first charter.
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 463
and only seven years after it was granted; thereby showing that the
State did not suppose that, by the terms it. had used in the first
law, it had deprived itself of the power of making such public
improvements as might impair the profits of the Charles River
Bridge; and from the language used in the clauses of the law by
which the charter is extended, it would seem, that the legislature
were especially careful to exclude any inference that the exten-
sion was made upon the ground of compromise with the bridge
company, or as a compensation for rights impaired.
On the contrary, words are cautiously employed to exclude that
conclusion; and the extension is declared to be granted as a reward
for the hazard they had run, and "for the encouragement of enter-
prise." The extension was given because the company had under-
taken and executed a work of doubtful success; and the improve-
ments which the legislature then contemplated, might diminish
the emoluments they had expected to receive from it. It results
from this statement, that the legislature, in the very law extend-
ing the charter, asserts its rights to authorize improvements over
Charles Eiver which would take off a portion of the travel from
this bridge and diminish its profits; and the bridge company
accept the renewal thus given, and thus carefully connected with
this assertion of the right on the part of the State. Can they,
when holding their corporate existence under this law, and de-
riving their franchises altogether from it, add to the privileges
expressed in their charter an implied agreement, which is in direct
conflict with a portion of the law from which they derive their
corporate existence? Can the legislature be presumed to have
taken upon themselves an implied obligation, contrary to its own
acts and declarations contained in the same law? It would be
difficult to find a case justifying such an implication, even between
individuals; still less will it be found where sovereign rights are
concerned, and where the interests of a whole community would
be deeply affected by such an implication. It would, indeed, be
a strong exertion of judicial power, acting upon its own views
of what justice required, and the parties ought to have done, to
raise, by a sort of judicial coercion, an implied contract, and infer
it from the nature of the very instrument in which the legislature
appear to have taken pains to use words which disavow and repu-
diate any intention, on the part of the State, to make such a
contract.
Indeed, the practice and usage of almost every State in the
Union, old enough to have commenced the work of internal im-
464 CASES ON CONSTITUTIONAL LAW.
provement, is opposed to the doctrine contended for on the part
of the plaintiffs in error. Turnpike roads have been made in suc-
cession, on the same line of travel; the latter one interfering ma-
terially with the profits of the first. These corporations have, in
some instances, been utterly ruined by the introduction of newer
and better modes of transportation and traveling. In some cases,
railroads have rendered the turnpike roads on the same line of
travel so entirely useless, that the franchise of the turnpike cor-
poration is not worth preserving. Yet in none of these cases
have the corporations supposed that their privileges were invaded,
or any contract violated on the part of the State. Amid the mul-
titude of cases which have occurred, and have been daily occurring
for the last forty or fifty years, this is the first instance in which
such an implied contract has been contended for, and this court
called upon to infer it from an ordinary act of incorporation,
containing nothing more than the usual stipulations and provi-
sions to be found in every such law. The absence of any such con-
troversy, when there must have been so many occasions to give
rise to it, proves that neither States, nor individuals, nor corpora-
tions, ever imagined that such a contract could be implied from
such charters. It shows that the men who voted for these laws
never imagined that they were forming such a contract; and if
we maintain that they have made it, we must create it by a legal
fiction, in opposition to the truth of the fact, and the obvious
intention of the party. We cannot deal thus with the rights
reserved to the States, and by legal irrtendments and mere tech-
nical reasoning take away from them any. portion of that power
over their own internal police and improvement which is so neces-
sary to their well-being and prosperity.
And what would be the fruits of this doctrine of implied con-
tracts on the part of the States, and of property in a line of
travel by a corporation, if it should now be sanctioned by this
court? To what results would it lead us? If it is to be found
in the charter to this bridge, the same process of reasoning must
discover it, in the various acts which have been passed, within
the last forty years, for turnpike companies. And what is to be
the extent of the privileges of exclusion on the different sides of
the road? The counsel who have so ably argued this case have
not attempted to define it by any certain boundaries. How far
must the new improvement be distant from the old one? How
near may you approach without invading its rights in the privileged
line? If this court should establish the principles now contended
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 4G5
for, what is to become of the numerous railroads established on
the same line of travel with turnpike companies; and which have
rendered the franchises of the turnpike corporations of no value?
Let it once be understood that such charters carry with them
these implied contracts, and give this unknown and undefined
property in a line of travelling, and you will soon find the old turn-
pike corporations awakening from their sleep and calling upon
this court to put down the improvements which have taken their
place. The millions of property which have been invested in rail-
roads and canals upon lines of travel which had been before occu-
pied by turnpike corporations will be put in jeopardy. We shall
be thrown back to the improvements of the last century, and
obliged to stand still until the claims of the old turnpike cor-
porations shall be satisfied, and they shall consent to permit these
States to avail themselves of the lights of modern science, and to
partake of the benefit of those improvements which are now add-
ing to the wealth and prosperity, and the convenience and com-
fort, of every other part of the civilized world. Nor is this all.
This court will find itself compelled to fix, by some arbitrary rule,
the width of this new kind of property in a line of travel; for if
such a right of property exists, we have no lights to guide us in
marking out its extent, unless, indeed, we resort to the old feudal
grants, and to the exclusive rights of ferries, by prescription,
between towns, and are prepared to decide that when a turnpike
road from one town to another had been made, no railroad or canal,
between these two points, could afterwards be established. This
court are not prepared to sanction principles which must lead to
such results.
Many other questions of the deepest importance have been
raised and elaborately discussed in the argument. It is not nec-
essary, for the decision of this case, to express our opinion upon
them; and the court deem it proper to avoid volunteering an opin-
ion on any question involving the construction of the constitution,
where the case itself does not bring the question directly before
them, and make it their duty to decide upon it.
Some questions, also, of a purely technical character have been
made and argued as to the form of proceeding and the right to
relief. But enough appears on the record to bring out the great
question in contest; and it is the interest of all parties concerned
that the real controversy should be settled without further delay;
and as the opinion of the court is pronounced on the main ques-
tion in dispute here, and disposes of the whole case, it is altogether
30
466 CASES ON CONSTITUTIONAL LAW.
unnecessary to enter upon the examination of the forms of pro-
ceeding in which the parties have brought it before the court.
The judgment of the supreme judicial court of the commonwealth
of Massachusetts, dismissing the plaintiffs' bill, must, therefore,
be affirmed, with costs.
[MR. JUSTICE McLEAN delivered an opinion in which he argued
that the case should be dismissed for want of jurisdiction. MR.
JUSTICE STORY delivered a dissenting opinion, in which MR.
JUSTICE THOMPSON concurred.]
XI. CIVIL AND POLITICAL RIGHTS.
BARRON", ETC., v. MAYOR, ETC., of BALTIMORE.
7 Peters, 243. Decided 1833.
ERROR to the court of appeals of the western shore of the State
of Maryland.
Case by the plaintiff in error against the city of Baltimore, to re-
recover damages for injuries to the wharf-property of the plaintiff,
arising from the acts of the corporation
The city, in the asserted exercise of its corporate authority over
the harbor, the paving of streets, ar?d regulating grades for paving,
and over the health of Baltimore, diverted from their accustomed
and natural course, certain streams of water, which flow from the
range of hills bordering the city, and diverted them, so that they
made deposits of sand and gravel near the plaintiff's wharf, and
thereby rendered the water shallow, and. prevented the access of
vessels. The decision of Baltimore county court was against the
defendants, and a verdict for $4,500 was rendered for the plaintiff.
The court of appeals reversed the judgment of Baltimore county
court, and did not remand the case to that court for a further
trial. From this judgment the defendant in the court of appeals
prosecuted a writ of error to this court. . . .
MARSHALL, C. J., delivered the opinion of the court.
The judgment brought up by this writ of error having been ren-
dered by the court of a State, this tribunal can exercise no jurisdic-
tion over it, unless it be shown to come within the provisions of the
25th section of the Judicial Act. 1
The plaintiff in error contends that it conies within that clause
in the fifth amendment to the constitution, which inhibits the tak-
ing of private property for public use, without just compensation.
He insists that this amendment, being in favor of the liberty of
the citizen, ought to be so construed as to restrain the legislative
power of a State, as well as that of the United States. If this
1 1 Stats, at Large, 85.
467
468 CASES ON CONSTITUTIONAL LAW.
proposition be untrue, the court can take no jurisdiction of the
cause.
The question thus presented is, we think, of great importance,
but not of much difficulty.
The constitution was ordained and established by the people of
the United States for themselves, for their own government, and
not for the government of the individual States. Each State es-
tablished a constitution for itself, and, in that constitution, pro-
vided such limitations and restrictions on the powers of its partic-
ular government as its judgment dictated. The people of the
United States framed such a government for the United States as
they supposed best adapted to their situation, and best calculated
to promote their interests. The powers they conferred on this
government were to be exercised by itself; and the limitations on
power, if expressed in general terms, are naturally, and, we think,
necessarily .applicable to the government created by the instrument.
They are limitations of power granted in the instrument itself; not
of distinct governments, framed by different persons and for dif-
ferent purposes.
If these propositions be correct, the fifth amendment must be
understood as restraining the power of the general government,
not as applicable to the States. In their several constitutions they
have imposed such restrictions on their respective governments as
their own wisdom suggested; such as they deemed most proper
for themselves. It is a subject on which they judge exclusively,
and with which others interfere no further than they are sup-
posed to have a common interest.
/j The counsel for the plaintiff in error insists that the constitu-
f tion was intended to secure the people of the several States against
L the undue exercise of power by their respective state governments;
as well as against that which might be attempted by their general
government. In support of this argument he relies on the inhibi-
tions contained in the 10th section of the 1st article.
We think that section affords a strong if not a conclusive argu-
ment in support of the opinion already indicated by the court.
The preceding section contains restrictions which are obviously
intended for the exclusive purpose of restraining the exercise of
power by the departments of the general government. Some of
them use language applicable only to congress; others are expressed
in general terms. The third clause, for example, declares that "no
bill of attainder or ex post facto law shall be passed." No lan-
guage can be more general; yet the demonstration is complete that
BARRON v. MAYOR, ETC., OF BALTIMORE. 469
it applies solely to the government of the United States. In addi-
tion to the general arguments furnished by the instrument itself,
some of which have been already suggested, the succeeding sec-
tion, the avowed purpose of which is to restrain state legislation,
contains in terms the very prohibition. It declares that "no State
shall pass any bill of attainder or ex post facto law." This pro-
vision, then, of the 9th section, however comprehensive its lan-
guage, contains no restriction on state legislation.
The 9th section having enumerated, in the nature of a bill of
rights, the limitations intended to be imposed on the powers of
the general government, the 10th proceeds to enumerate those
which were to operate on the state legislatures. These restrictions
are brought together in the same section, and are by express words
applied to the States. "No State shall enter into any treaty," etc.
Perceiving that in a constitution framed by the people of the
United States for the government of all, no limitation of the action
of government on the people would apply to the state government,
unless expressed in terms; the restrictions contained in the 10th
section are in direct words so applied to the States.
It is worthy of remark, too, that these inhibitions generally re-
strain state legislation on subjects intrusted to the general govern-
ment, or in which the people of all the States feel an interest.
A State is forbidden to enter into any treaty, alliance, or confed-
eration. If these compacts are with foreign nations, they interfere
with the treaty-making power, which is conferred entirely on the
general government; if with each other, for political purposes, they
can scarcely fail to interfere with the general purpose and intent
of the constitution. To grant letters of marque and reprisal, would
lead directly to war; the power of declaring which is expressly
given to congress. To coin money is also the exercise of a power
conferred on congress. It would be tedious to recapitulate the
several limitations on the powers of the States which are contained
in this section. They will be found, generally, to restrain state
legislation on subjects intrusted to the government of the Union,
in which the citizens of all the States are interested. In these
alone were the whole people concerned. The question of their
application to States is not left to construction. It is averred in
positive words.
If the original constitution, in the 9th and 10th sections of the
1st article, draws this plain and marked line of discrimination
between the limitations it imposes on the powers of the general
government, anxl on those of the States; if in every inhibition in-
470 CASES ON CONSTITUTIONAL LAW.
tended to act on state power, words are employed which directly
express that intent, some strong reason must be assigned for
departing from this safe and judicious course in framing the
amendments, before that departure can be assumed.
We search in vain for that reason.
Had the people of the several States, or any of them, required
changes in their constitutions; had they required additional safe-
guards to liberty from the apprehended encroachments of their
particular governments; the remedy was in their own hands, and
would have been applied by themselves. A convention would have
been assembled by the discontented State, and the required im-
provements would have been made by itself. The unwieldy and
cumbrous machinery of procuring a recommendation from two
thirds of congress, and the assent of three fourths of their sister
States, could never have occurred to any human being as a mode
of doing that which might be effected by the State itself. Had
the framers of these amendments intended them to be limitations
on the powers of the state governments, they would have imitated
the framers of the original constitution, and have expressed that
intention. Had congress engaged in the extraordinary occupation
of improving the constitutions of the several States by affording
the people additional protection from the exercise of power by
their own governments in matters which concerned themselves
alone, they would have declared this purpose in plain and intel-
ligible language.
But it is universally understood, it is a part of the history of
"the day, that the great revolution which established the constitu-
tion of the United States was not effected without immense oppo-
sition. 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, amend-
ments to guard against the abuse of power were recommended.
These amendments demanded security against the apprehended en-
croachments 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
SCOTT v. SANDFORD. 471
to apply them to the state governments. This court cannot so
apply them.
We are of opinion that the provision in the fifth amendment to
the constitution, declaring that private property shall not be taken
for public use without just compensation, is intended solely as a
limitation on the exercise of power by the government of the United
States, and is not applicable to the legislation of the States. We
are therefore of opinion, that there is no repugnancy between the
several acts of the general assembly of Maryland, given in evidence
by the defendants at the trial of this cause, in the court of that
State, and the constitution of the United States. This court,
therefore, has no jurisdiction of the cause; and it is dismissed.
DEED SCOTT, PLAINTIFF IN EEROH, v. JOHN F. A. SAND-
FORD.
19 Howard, 393. Decided 1857.
This case was brought up, by writ of error, from the Circuit
Court of the United States for the district of Missouri. . . .
[In 1834, Dred Scott, a negro slave belonging to Dr. Emerson, a
surgeon in the United States army, was taken by his master from
Missouri to Rock Island, Illinois, where slavery was prohibited
by statute. Thence he was taken, in 1836, to Fort Snelling, in
the territory of upper Louisiana. This post was situated on the
west bank of the Mississippi, north of latitude 36 30', and north
of Missouri, and hence within the territory in which slavery had
been forbidden by the Missouri Compromise. In 1836, with the
consent of their master, Dred and Harriet were married. In 1838,
Dr. Emerson returned with his slaves to Missouri. In 1847, Dred
brought suit in the Missouri circuit court to recover his freedom,
having discovered that according to previous decisions of Missouri
courts, residence in free territory conferred freedom. Judgment
was rendered in his favor, but was reversed by the Missouri su-
preme court. Before the commencement of the present suit, Dred
and his wife and two children were sold to Sandford, a citizen of
New York. Scott having brought suit in trespass for assault
and battery against Sandford in the Federal Circuit Court of Mis-
souri, Sandford pleaded to the jurisdiction of the court that this
could not be a suit between citizens of different States, because
472 CASES ON CONSTITUTIONAL LAW.
Scott was not a citizen of Missouri/ but "a negro of pure African
descent; his ancestors were of pure African blood and were brought
into this country and sold as negro slaves." To this Scott de-
murred and the demurrer was sustained. The defendant then
pleaded in bar to the action that the plaintiff was his negro slave,
and that he had only gently laid hands on him to restrain him,
as he had a right to do. The judge instructed the jury that, "upon
the facts in this case, the law is with the defendant." The
plaintiff excepted to this instruction, and upon his exceptions the
case was taken to the United States Supreme Court. There the
case was twice argued, first at December term, 1855, and again
at December term, 1856; judgment was deferred until March 6,
1857, in order, says Alexander Johnston, "to avoid any increase of
the excitement already attending the presidential election."]
ME. CHIEF JUSTICE TAXEY delivered the opinion of the court.
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to
hear and determine the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erroneous
or not?
The plaintiff in error, who was also the plaintiff in the court
below, was, with his wife and children, held as slaves by the de-
fendant, in the State of Missouri; and he brought this action in
the Circuit Court of the United States for that district, to assert
the title of himself and his family to freedom.
The declaration is in the form usually adopted in that State
to try questions of this description, and contains the averment
necessary to give the court jurisdiction; that he and the defendant
are citizens of different States; that is, that he is a citizen of
Missouri, and the defendant a citizen of New York.
The defendant pleaded in abatement to the jurisdiction of the
court, that the plaintiff was not a citizen of the State of Missouri,
as alleged in his declaration, being a negro of African descent,
whose ancestors were of pure African blood, and who were brought
into this country and sold as slaves.
To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court overruled the plea, and gave judgment that
the defendant should answer over. And he thereupon put in
sundry pleas in bar, upon which issues were joined; and at the trial
the verdict and judgment were in his favor. Whereupon the
plaintiff brought this writ of error.
SCOTT v. SANDFGRD. 473
Before we speak of the pleas in bar, it will be proper to dispose
of the questions which have arisen on the plea in abatement.
That plea denies the right of the plaintiff to sue in a court of
the United States, for the reasons therein stated. ... It is
suggested, however, that this plea is not before us. ... We
think they [the plea and the judgment of the court upon it] are
before us ... and it becomes, therefore, our duty to decide
whether the facts stated in the plea are or are not sufficient to
show that the plaintiff is not entitled to sue as a- citizen in a'court
of the United States. . . .
The question is simply this: Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member
of the political community formed and brought into existence by
the Constitution of the United States, and as such become entitled
to all the rights, privileges and immunities, guarantied by that
instrument to the citizen? One of which rights is the privilege of
suing in a court of the United States in the cases specified in the
Constitution. . . . And this being the only matter in dispute
on the pleadings, this court must be understood as speaking in
this opinion of that class only, that is, of those persons who are
the descendants of Africans who were imported into this country
and sold as slaves. . . .
The words "people of the United States" and "citizens" are
synonymous terms, and mean the same thing. They both describe
the political body who, according to our republican institutions,
form the sovereignty, and who hold the power and conduct the
Government through their representatives. They are what we
familiarly call the "sovereign people," and every citizen is one
of this people, and a constituent member of this sovereignty. The
question before us is, whether the class of persons described in
the plea of abatement compose a portion of this people, and are
constituent members of this sovereignty? We think they are not,
and that they are not included, and were not intended to be in-
cluded, under the word "citizens" in the Constitution, and can
therefore claim none of the rights and privileges which that instru-
ment provides for and secures to citizens of the United States.
On the contrary they were at that time considered as a subordinate
and inferior class of beings, who had been subjugated by the domi-
nant race, and whether emancipated or not, yet remained subject
to their authority, and had no rights or privileges but such as those
who held the power and the Government might choose to grant
them.
474 CASES ON CONSTITUTIONAL LAW.
In discussing this question, we must not confound the rights of
citizenship which a State may confer within its own limits, and
the rights of citizenship as a member of the Union. It does not
by any means follow, because he has all the rights and privileges
of a citizen of a State, that he must be a citizen of the United
States. He may have all the rights and privileges of the citizen
of a State, and yet not be entitled to the rights and privileges of
a citizen in any other State. For, previous to the adoption of the
Constitution of the United States, every State had the undoubted
right to confer on whomsoever it pleased the character of citizen,
and to endow him with all its rights. But this character of course
was confined to the boundaries of the State, and gave him no rights
or privileges in other States beyond those secured to him by the
laws of nations and the comity of States. Nor have the several
States surrendered the power of conferring these rights and privi-
leges by adopting the Constitution of the United States. Each
State may still confer them upon an alien, or any one it thinks
proper, or upon any class or description of persons; yet he would
not be a citizen in the sense in which that word is used in the
Constitution of the United States, nor entitled to sue as such in
one of its courts, nor to the privileges and immunities of a citizen
in the other States. The rights which he would acquire would be
restricted to the State which gave them. The Constitution has
conferred on Congress the right to establish an uniform rule of
naturalization, and this right is evidently exclusive, and has al-
ways been held by this court to : be so. Consequently, no State,
since the adoption of the Constitution, can, by naturalizing an
alien, invest him with the rights and privileges secured to a citizen
of a State under the Federal Government, although, so far as the
State alone was concerned, he would undoubtedly be entitled to
the rights of a citizen, and clothed with all the rights and im-
munities which the Constitution and laws of the State attached to
that character.
It is very clear, therefore, that no State can, by any act or law of
its own, passed since the adoption of the Constitution, introduce
a new member into the political community created by the Consti-
tution of the United States. It cannot make him a member of
this community by making him a member of its own. And for
the same reason it cannot introduce any person, or description of
persons, who were not intended to be embraced in this new political
family, which the Constitution brought into existence, but were
intended to be excluded from it.
SCOTT v. SANDFORD. 475
The question then arises, whether the provisions of the Constitu-
tion, in relation to the personal rights and privileges to which the
citizen of a State should be entitled, embraced the negro African
race, at that time in this country, or who might afterward be im-
ported, who had then or should afterwards be made free in any
State; and to put it in the power of a single State to make him a
citizen of the United States, and endow him with the full rights
of citizenship in every other State without their consent? Does
the Constitution of the United Stat3s act upon him whenever he
shall be made free under the laws of a State, and raised then to
the rank of a citizen, and immediat 3ly clothe him with all the privi-
leges of a citizen in every other State, and in its own courts?
The court think the affirmative of these propositions cannot be
maintained. And if it cannot, the plaintiff in error could not be
a citizen of the State of Missouri, within the meaning of the Con-
stitution of the United States, and, consequently, was not entitled
to sue in its courts.
It is true, every person, and every class and description of per-
sons, who were at the time of the adoption of the Constitution
recognized as citizens in the several States, became also citizens
of this new political body; but none other; it was formed by them,
and for them and their posterity, but for no one else. And the
personal rights and privileges guarantied to citizens of this new
sovereignty were intended to embrace those only who were then
members of the several State communities, or who should after-
wards, by birthright or otherwise, become members, according to
the provisions of the Constitution and the principles on which
it was founded. It was the union of those who were at that time
members of distinct and separate political communities into one
political family, whose power, for certain specified purposes, was
to extend over the whole territory of the United States. And it
gave to each citizen rights and privileges outside of his State
which he did not before possess, and placed him in every other
State upon a perfect equality with its own citizens as to rights of
person and rights of property; it made him a citizen of the United
States.
It becomes necessary, therefore, to determine who were citizens
of the several States when the Constitution was adopted. And in
order to do this, we must recur to the Governments and institutions
of the thirteen colonies, when they separated from Great Britain
and formed new sovereignties, and took their places in the family
of independent nations. "We must inquire who, at that time, were
476 CASES ON CONSTITUTIONAL LAW.
recognized as the people or citizens of a State, whose rights and
liberties had been outraged by the English Government; and who
declared their independence, and assumed the powers of Govern-
ment to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of the
times, and the language used in the Declaration of Independence,
show, that neither the class of persons who had been imported
as slaves, nor their descendants, whether they had become free or
not, were then acknowledged as a part of the people, nor intended
to be included in the general words used in that memorable instru-
ment. . . .
They had for more than a century before been regarded as be-
ings of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound
to respect; and that the negro might justly and lawfully be re-
duced to slavery for his benefit. . . .
The legislation of the different colonies furnishes positive and
indisputable proof of this fact. . . . The language of the
Declaration of Independence is equally conclusive. . . . This
state of public opinion had undergone no change when the Con-
stitution was adopted, as is equally evident from its provisions and
language. . . . But there are two clauses in the Constitution
which point directly and specifically to the negro race as a separate
class of persons, and show clearly that they were not regarded as a
portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the
right to import slaves until the year 1808, if it thinks proper.
. . . And by the other provision the States pledge themselves to
each other to maintain the right of property of the master, by de-
livering up to him any slave who may have escaped from his ser-
vice, and be found within their respective territories. . . .
The legislation of the States therefore shows, in a manner not
to be mistaken, the inferior and subject condition of that race at
the time the Constitution was adopted, and long afterwards,
throughout the thirteen States by which that instrument was
framed; and it is hardly consistent with the respect due to these
States, to suppose that they regarded at that time, as fellow-citizens
and members of the sovereignty, a class of beings whom they had
thus stigmatized; whom, as we are bound, out of respect to the
State sovereignties, to assume they had deemed it just and necessary
thus to stigmatize, and upon whom they had impressed such deep
SCOTT v. SANDFORD. 477
and enduring marks of inferiority and degradation; or, that when
they met in convention to form, the Constitution, they looked upon
them as a portion of their constituents, or designed to include them
in the provisions so carefully inserted for the security and protec-
tion of the liberties and rights of their citizens. It cannot be sup-
posed that they intended to secure to them rights, and privileges,
and rank, in the new political body throughout the Union, which
every one of them denied within the limits of its own dominion.
More especially, it cannot be believed that the large slave-holding
States regarded them as included in the word citizens, or would
have consented to a Constitution which might compel them to re-
ceive them in that character from another State. For if they were
so received, and entitled to the privileges and immunities of citi-
zens, it would exempt them from the operation of the special laws
and from the police regulations which they considered to be neces-
sary for their own safety. It would give to persons of the negro
race, who were recognized as citizens in any one State of the Union,
the right to enter every other State whenever they pleased, singly
or in companies, without pass or passport, and without obstruction,
to sojourn there as long as they pleased, to go where they pleased
at every hour of the day or night without molestation, unless they
committed some violation of law for which a white man would be
punished; and it would give them the full liberty of speech in
public and in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs, and
to keep and carry arms wherever they went. And all this would
be done in the face of the subject race of the same color, both free
and slaves, and inevitably producing discontent and insubordina-
tion among them, and endangering the peace and safety of the
State. . . .
To all this mass of proof we have still to add, that Congress has
repeatedly legislated upon the same construction of the Constitu-
tion that we have given. Three laws, two of which were passed
almost immediately after the Government went into operation, will
be abundantly sufficient to show this. . . .
The first of these acts is the naturalization law, which was passed
at the second session of the first Congress, March 26, 1790, and
confines the right of becoming citizens "to aliens being free white
persons." . . .
Another of the early laws of which we have spoken, is the first
militia law, which was passed in 1792, at the first session of the
478 CASES ON CONSTITUTIONAL LAW.
second Congress. ... It directs that every "free able-bodied
white male citizen" shall be enrolled in the militia. . . .
The third act to which we have alluded is still more decisive; it
was passed as late as 1813 (2 Stat., 809), and it provides: "That
from and after the termination of the war in which the United
States are now engaged with Great Britain, it shall not be lawful to
employ, on board of any public or private vessels of the United
States, any person or persons except citizens of the United States,
or persons of color, natives of the United States." . . .
The conduct of the Executive Department of the Government
has been in perfect harmony upon this subject with this course of
legislation. The question was brought officially before the late
William \Virt, when he was the Attorney General of the United
States, in 1821, and he decided that the words "citizens of the
United States" were used in the acts of Congress in the same sense
as in the Constitution; and that free persons of color were not
citizens, within the meaning of the Constitution and laws; and
this opinion has been confirmed by that of the late Attorney Gen-
eral, Caleb Gushing, in a recent case, and acted upon by the Secre-
tary of State, who refused to grant passports to them as "citizens
of the United States."
But it is said that a person may be a citizen, and entitled to that
character, although he does not possess all the rights which may be-
long to other citizens; as, for example, the right to vote, or to hold
particular offices; and that yet, when he goes into another State,
he is entitled to be recognized there as a citizen, although the State
may measure his rights by the rights which it allows to persons
of a like character or class resident in the State, and refuse to
him the full rights of citizenship.
This argument overlooks the language of the provision in the
Constitution of which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the
community who form the sovereignty, although he exercises no
share of the political power, and is incapacitated from holding par-
ticular offices. Women and minors, who form a part of the polit-
ical family, cannot vote; and when a property qualification is re-
quired to vote or hold a particular office, those who have not the
necessary qualification cannot vote or hold office, yet they are
citizens.
So, too, a person may be entitled to vote by the law of the State,
who is not a citizen even of the State itself. And in some of the
States of the Union foreigners not naturalized are allowed to vote.
SCOTT v. SANDFORD. 479
And the State may give the right to free negroes and mulattoes,
but that does not make them citizens of the State, and still less
of the United States. And the provision in the Constitution giv-
ing privileges and immunities in other States, does not apply to
them.
Neither does it apply to a person who, being the citizen of a
State, migrates to another State. For then he becomes subject to
the laws of the State in which he lives, and he is no longer a
citizen of the State from which he removed. And the State in
which he resides may then, unquestionably, determine his status
or condition, and place him among the class of persons who are
not recognized as citizens, but belong to an inferior and subject
race; and may deny him the privileges and immunities enjoyed by
its citizens.
But so far as mere rights of person are concerned, the provision
in question is confined to citizens of a State who are temporarily
in another State without taking up their residence there. It gives
them no political rights in the State as to voting or holding office,
or in any other respect. For a citizen of one State has no right
to participate in the government of another. But if he ranks as
a citizen in the State to which he belongs, within the meaning of
the Constitution of the United States, then, whenever he goes
into another State, the Constitution clothes him, as to the rights
of person, with all the privileges and immunities which belong to
citizens of the State. And if persons of the African race are citi-
zens of a State, and of the United States, they would be entitled
to all of these privileges and immunities in every State, and the
State could not restrict them; for they would hold these privileges
and immunities under the paramount authority of the Federal
Government, and its courts would be bound to maintain and en-
force them, the Constitution and laws of the State to the contrary
notwithstanding. And if the States could limit or restrict them,
or place the party in an inferior grade, this clause of the Constitu-
tion would be unmeaning, and could have no operation; and would
give no rights to the citizen when in another State. He would
have none but what the State itself chose to allow him. This is
evidently not the construction or meaning of the clause in ques-
tion. It guaranties rights to the citizen, and the State cannot
withhold them. And these rights are of a character and would
lead to consequences which make it absolutely certain that the
African race were not included under the name of citizens of a
State, and were not in the contemplation of the framers of the
480 CASES ON CONSTITUTIONAL LAW.
Constitution when these privileges and immunities were provided
for the protection of the citizens in other States. . . .
What the construction [of the Constitution] was at that time
[when it was framed], we think can hardly admit of doubt. We have
the language of the Declaration of Independence and of the Articles
of Confederation, in addition to the plain words of the Constitution
itself; we have the legislation of the different States, before, about
the time, and since, the Constitution was adopted; we have the
legislation of Congress, from the time of its adoption to a recent
period; and we have the constant and uniform action of the Execu-
tive Department, all concurring together, and leading to the same
result. And if anything in relation to the construction of the
Constitution can be regarded as settled, it is that which we now
give to the word "citizen" and the word "people."
And upon a full and careful consideration of the subject, the
court is of opinion, that, upon the facts stated in the plea in abate-
ment, Dred Scott was not a citizen of Missouri within the meaning
of the Constitution of the United States, and not entitled as such
to sue in its courts; and, consequently, that the Circuit Court had
no jurisdiction of the case, and that the judgment on the plea in
abatement is erroneous. . . . [Here follows a discussion of the
judicial authority of the court to examine any question in the case
other than that of the jurisdiction of the Circuit Court. The court
determines that it has the requisite authority].
We proceed, therefore, to inquire whether the facts relied on by
the plaintiff entitled him to his freedom. . . .
In considering this part of the controversy, two questions arise :
1. Was he, together with his family, free in Missouri by reason
of the stay in the territory of the United States hereinbefore men-
tioned? And 2. If they were not, is Scott himself free by rea-
son of his removal to Bock Island, in the State of Illinois, as stated
in the above admissions?
We proceed to examine the first question.
The act of Congress, upon which the plaintiff relies, declares that
slavery and involuntary servitude, except as a punishment for
crime, shall be forever prohibited in all that part of the territory
ceded by France, under the name of Louisiana, which lies north
of thirty-six degrees thirty minutes north latitude, and not in-
cluded within the limits of Missouri. And the difficulty which
meets us at the threshold of this part of the inquiry is, whether
Congress was authorized to pass this law, under any of the powers
granted to it by the Constitution; for if the authority is not given
SCOTT v. SANDFORD. 481
by that instrument, it is the duty of this court to declare it void
and inoperative, and incapable of conferring freedom upon any one
who is held as a slave under the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that ar-
ticle in the Constitution which confers on Congress the power "to
dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States;" but, in
the judgment of the court, that provision has no bearing on the
present controversy, and the power there given, whatever it may be,
is confined, and was intended to be confined, to the territory which
at that time belonged to, or was claimed by, the United States, and.
was within their boundaries as settled by the treaty with Great
Britain, and can have no influence upon a territory afterwards ac-
quired from a foreign Government. It was a special provision for
a known and particular territory, and to meet a present emergency,
and nothing more. ... It was intended for a specific purpose,
to provide for the things we have mentioned. It was to transfer
to the new Government the property then held in common by the
States, and to give to that Government power to apply it to the
objects for which it had been destined by mutual agreement among
the States before their league was dissolved. It applied only to
the property which the States held in common at that time, and
has no reference whatever to any territory or other property which
the new sovereignty might afterwards itself acquire. . . .
At the time when the territory in question was obtained by ces-
sion from France, it contained no population fit to be associated
together and admitted as a State; and it therefore was absolutely
necessary to hold possession of it, as a Territory belonging to the
United States, until it was settled and inhabited by a civilized
community capable of self-government, and in a condition to be
admitted on equal terms with the other States as a member of the
Union. But, as we have before said, it was acquired by the General
Government, as the representative and trustee of the people of the
United States, and it must therefore be held in that character for
their common and equal benefit; for it was the people of the sev-
eral States, acting through their agent and representative, the Fed-
eral Government, who in fact acquired the Territory in question,
and the Government holds it for their common use until it shall
be associated with the other States as a member of the Union.
But until that time arrives, it is undoubtedly necessary that
some Government should be established, in order to organize soci-
ety, and to protect the inhabitants in their persons and property;
31
482 CASES ON CONSTITUTIONAL LAW.
and as the people of the United States could act in this matter only
through the Government which represented them, and through
which they spoke and acted when the Territory was obtained, it
was not only within the scope of its powers, but it was its duty to
pass such laws and establish such a Government as would enable
those by whose authority they acted to reap the advantages antici-
pated from its acquisition, and to gather there a population which
would enable it to assume the position to which it was destined
among the States of the Union. . . . But the power of Con-
gress over the person or property of a citizen can never be a mere
discretionary power under our Constitution and form of Govern-
ment. The powers of the Government and the rights and privi-
leges of the citizen are regulated and plainly defined by the Con-
stitution itself. . . . Thus the rights of property are united
with the rights of person, and placed on the same ground by the
fifth amendment to the Constitution, which provides that no person
shall be deprived of life, liberty, and property, without due process
of law. And an act of Congress which deprives a citizen of the
United States of his liberty or property, merely because he came
himself or brought his property into a particular Territory of the
United States, and who had committed no offense against the laws,
could hardly be dignified with the name of due process of law.
It seems, however, to be supposed, that there is a difference be-
tween property in a slave and other property, and that different
rules may be applied to it in expounding the Constitution of the
United States. And the laws and usages of nations, and the writ-
ings of eminent jurists upon the relation of master and slave and
their mutual rights and duties, and the powers which Governments
may exercise over it, have been dwelt upon in the argument.
But in considering the question before us, it must be borne in
mind that there is no law of nations standing between the people
of the United States and their Government, and interfering with
their relation to each other. The powers of the Government, and
the rights of the citizen under it, are positive and practical regu-
lations plainly written down. The people of the United States
have delegated to it certain enumerated powers, and forbidden it
to exercise others. It has no power over the person or property
of a citizen but what the citizens of the United States have granted.
And no laws or usages of other nations, or reasoning of statesmen
or jurists upon the relations of master and slave, can enlarge the
powers of the Government, or take from the citizens the rights
SCOTT v. SANDFORD. 483
they have reserved. And if the Constitution recognizes the right
of property of the master in a slave, and makes no distinction be-
tween that description of property and other property owned by
a citizen, no tribunal, acting under the authority of the United
States, whether it be legislative, executive, or judicial, has a right
to draw such a distinction, or deny to it the benefit of the pro-
visions and guarantees which have been provided for the protec-
tion of private property against the encroachments of the Govern-
ment.
Now, as we have already said in an earlier part of this opinion,
upon a different point, the right of property in a slave is distinctly
and expressly affirmed in the Constitution. The right to traffic
in it, like an ordinary article of merchandise and property, was
guaranteed to the citizens of the United States, in every State that
might desire it, for twenty years. And the Government in express
terms is pledged to protect it in all future time, if the slave escapes
from his owner. This is done in plain words too plain to be
misunderstood. And no word can be found in the Constitution
which gives Congress a greater power over slave property, or which
entitles property of that kind to less protection than property of
any other description. The only power conferred is the power
coupled with the duty of guarding and protecting the owner in his
rights.
Upon these considerations, it is the opinion of the court that the
act of Congress which prohibited a citizen from holding or owning
property of this kind in the territory of the United States north
of the line therein mentioned, is not warranted by the Constitution,
and is therefore void; and that neither Dred Scott himself, nor any
of his family, were made free by being carried into this territory;
even if they had been carried there by the owner, with the inten-
tion of becoming a permanent resident. . . .
But there is another point in the case which depends upon State
power and State law. And it is contended, on the part of the
plaintiff, that he is made free 'by being taken to Rock Island, in
the State of Illinois, independently of his residence in the territory
of the United States; and being so made free, he was not again re-
duced to a state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the
principle on which it depends was decided in this court, upon
much consideration, in the case of Strader et al. v. Graham, re-
ported in 10th Howard, 82. In that case, the slaves had been
taken from Kentucky to Ohio, with the consent of the owner,
484 CASES ON CONSTITUTIONAL LAW.
and afterwards brought back to Kentucky. And this court held
that their status or condition, as free or slave, depended upon the
laws of Kentucky, when they were brought back into that State,
and not of Ohio; and that this court had no jurisdiction to revise
the judgment of a State court upon its own laws. . . .
So in this case. As Scott was a slave when taken into the State
of Illinois by his owner, and was there held as such, and brought
back in that character, his status, as free or slave, depended on
the laws of Missouri, and not of Illinois.
It has, however, been urged in the argument, that by the laws
of Missouri he was free on his return, and that this case, therefore,
cannot be governed by the case of Strader et al. v. Graham, where
it appeared, by the laws of Kentucky, that the plaintiffs continued
to be slaves on their return from Ohio. But whatever doubts or
opinions may, at one time, have been entertained upon this sub-
ject, we are satisfied, upon a careful examination of all the cases
decided in the State courts of Missouri referred to, that it is now
firmly settled by the decisions of the highest court in the State,
that Scott and his family upon their return were not free, but
were, by the laws of Missouri, the property of the defendant; and
that the Circuit Court of the United States had no jurisdiction,
when, by the laws of the State, the plaintiff was a slave, and not a
citizen. . . .
Upon the whole, therefore, it is the judgment of this court, that
it appears by the record before us, that the plaintiff in error is
not a citizen of Missouri, in the sense in which that word is used
in the Constitution; and that the Circuit Court of the United
States, for that reason, had no jurisdiction in the case, and could
give no judgment in it. Its judgment for the defendant must,
consequently, be reversed, and a mandate issued, directing the suit
to be dismissed for want of jurisdiction.
MR. JUSTICE NELSON. ... In the view we have taken of
the case, it will not be necessary to pass upon this question [as to
whether the plea in abatement is before the court], and we shall
therefore proceed at once to an examination of the case upon its
merits. The question upon the merits, in general terms, is,
whether or not the removal of the plaintiff, who was a slave, with
his master, from the State of Missouri to the State of Illinois, with
a view to a temporary residence, and after such residence and re-
turn to the slave State, such residence in the free State works an
emancipation.
SCOTT v. SANDFORD. 485
As appears from the agreed statement of facts, this question has
been before the highest court of the State of Missouri, and a judg-
ment rendered that this residence in the free State has no such
effect; but, on the contrary, that his original condition continued
unchanged.
The court below, the Circuit Court of the United States for Mis-
souri, in which this suit was afterwards brought, followed the deci-
sion of the State court, and rendered a like judgment against the
plaintiff.
The argument against these decisions is, that the laws of Illi-
nois, forbidding slavery within her territory, had the effect to set
the slave free while residing in that State, and to impress upon
him the condition and status of a freeman; and that, by force of
these laws, this status and condition accompanied him on his re-
turn to the slave State, and of consequence he could not be there
held as a slave.
This question has been examined in the courts of several of the
slave-holding States, and different opinions expressed and conclu-
sions arrived at. ... Our opinion is, that the question is one
which belongs to each State to decide for itself, either by its Legis-
lature or courts of justice; and hence, in respect to the case before
us, to the State of Missouri a question exclusively of Missouri
law, and which, when determined by that State, it is the duty of
the Federal courts to follow it. In other words, except in cases
where the power is restrained by the Constitution of the United
States, the law of the State is supreme over the subject of slavery
within its jurisdiction.
As a practical illustration of the principle, we may refer to the
legislation of the free States in abolishing slavery, and prohibit-
ing its introduction into their territories. Confessedly, except as
restrained by the Federal Constitution, they exercised, and right-
fully, complete and absolute power over the subject. Upon what
principle, then, can it be denied to the State of Missouri? The
power flows from the sovereign character of the States of this
Union; sovereign, not merely as respects the Federal Government
except as they have consented to its limitation but sovereign as
respects each other. Whether, therefore, the State of Missouri will
recognize or give effect to the laws of Illinois within her territories
on the subject of slavery, is a question for her to determine. Nor
is there any constitutional power in this Government that can
rightfully control her.
Every State or nation possesses an exclusive sovereignty and
486 CASES ON CONSTITUTIONAL LAW.
jurisdiction within her own territory; and her laws affect and bind
all property and persons residing within it. It may regulate the
manner and circumstances under which property is held, and the
condition, capacity, and state of all persons therein; and, also, the
remedy and modes of administering justice. And it is equally
true, that no State or nation can affect or bind property out of its
territory, or persons not residing within it. No State, therefore,
can enact laws to operate beyond its own dominions, and, if it at-
tempts to do so, it may be lawfully refused obedience. Such laws
can have no inherent authority extra-territorially. This is the nec-
essary result of distinct and separate sovereignties. ...
These principles fully establish, that it belongs to the sovereign
State of Missouri to determine by her laws the question of slavery
within her jurisdiction, subject only to such limitations as may be
found in the Federal Constitution; and, further, that the laws of
other States of the Confederacy, whether enacted by their Legisla-
tures or expounded by their courts, can have no operation within
her territory, or affect rights growing out of her own laws on the
subject. This is the necessary result of the independent and sov-
ereign character of the State. The principle is not peculiar to the
State of Missouri, but is equally applicable to each State belong-
ing to the Confederacy. The laws of each have no extra-territorial
operation within the jurisdiction of another, except such as may be
voluntarily conceded by her laws or courts of justice. To the
extent of such concession upon the rule of comity of nations, the
foreign law may operate, as it then becomes a part of the municipal
law of the State. When determined that the foreign law shall
have effec >, the municipal law of the State retires, and gives place
to the foreign law. . . .
It has been supposed, in the argument on the part of the
plaintiff, that the eighth section of the act of Congress passed
March 6, 1820 (3 St. at Large, p. 544), which prohibited slavery
north of thirty-six degrees thirty minutes, within which the
plaintiff and his wife temporarily resided at Fort Snelling, pos-
sessed some superior virtue and effect, extra-territorially, and with-
in the State of Missouri, beyond that of the laws of Illinois, or
those of Ohio in the case of Strader et al. v. Graham. A similar
ground was taken and urged upon the court in the case just men-
tioned, under the ordinance of 1787, which was enacted during
the time of the Confederation, and re-enacted by Congress after
the adoption of the Constitution, with some amendments adapting
it to the new Government. (1 St. at Large, p. 50).
SCOTT v. SANDFORD. 487
In answer to this ground, the Chief Justice, in delivering the
opinion of the court, observed: "The argument assumes that the
six articles which that ordinance declares to be perpetual, are still
in force in the States since formed within the territory, and ad-
mitted into the Union. If this proposition could be maintained,
it would not alter the question; for the regulations of Congress,
under the old Confederation or the present Constitution, for the
government of a particular Territory, could have no force beyond
its limits. It certainly could not restrict the power of the States,
within their respective territories, nor in any manner interfere
with their laws and institutions, nor give this court control over
them.
"The ordinance in question," he observes, "if still in force, could
have no more operation than the laws of Ohio in the State of Ken-
tucky, and could not influence the decision upon the rights of the
master or the slaves in that State."
This view, thus authoritatively declared, furnishes a conclusive
answer to the distinction attempted to be set up between the extra-
territorial effect of a State law and the act of Congress in question.
It must be admitted that Congress possesses no power to regu-
late or abolish slavery within the States; and that, if this act had
attempted any such legislation, it would have been a nullity. And
yet the argument here, if there be any force in it, leads to the
result, that effect may be given to such legislation; for it is only
by giving the act of Congress operation within the State of Mis-
souri, that it can have any effect upon the question between the
parties. Having no such effect directly, it will be difficult to
maintain, upon any consistent reasoning, that it can be "made to
operate indirectly upon the subject. . . .
It is perhaps not unfit to notice, in this connection, that many
of the most eminent statesmen and jurists of the country enter-
tain the opinion that this provision of the act of Congress, even
within the territory to which it relates, was not authorized by any
power under the Constitution. . . .
Upon the whole, it must be admitted that the current of author-
ity, both in England and in this country, is in accordance with the
law as declared by the courts of Missouri in the case before us,
and we think the court below was not only right, but bound to
follow it. ...
Our conclusion is, that the judgment of the court below should
be affirmed.
[Justices Wayne and Daniel concurred entirely in the opinion
488 CASES ON CONSTITUTIONAL LAW.
of the Chief Justice. Justice Grier concurred with Justice Nel-
son "on the questions discussed by him." He did not mention the
plea in abatement. Justice Campbell did not consider the plea
in abatement, but concurred with the Chief Justice as to the other
points involved. Justice Catron concurred with the Chief Justice
as to the Missouri Compromise and with Justice Xelson as to the
effect of residence in Illinois. He held that the plea in abatement
was not before the court. Of the two dissenting justices, McLean
denied and Curtis admitted that the plea in abatement was open.
MR. JUSTICE MCLEAN and MR. JUSTICE CURTIS dissented.
JUSTICE McLEAN held, 1. As to the locality of slavery, that
it was a mere municipal regulation, founded upon and limited to
the range of territorial laws. 2. Slavery is emphatically a State
institution. In the formation of the Federal Constitution, care
was taken to confer no power on the Federal Government to inter-
fere with this institution in the States. In the provision respeet-
ing the slave trade, in fixing the ratio of representation, and
providing for the reclamation of fugitives from labor, slaves were
referred to as persons, and in no other respect are they considered
in the Constitution. 3. As to the power of Congress to establish
Territorial Governments, and to prohibit the introduction of slav-
ery therein, Congress has power to dispose of and make all needful
rules and regulations respecting the territory and other property
belonging to the United States. If Congress should deem slaves
or free colored persons injurious to the population of a free Terri-
tory, on any ground connected with the public interest, they have
the power to prohibit them from becoming settlers in it. 4. As
to the effect of taking slaves into a State or Territory, and so hold-
ing them, where slavery is prohibited, how can the slave be coerced
to serve in a State or Territory, not only without the authority of
law, but against its express provisions? Where no slavery exists,
the presumption, without regard to color, is in favor of freedom.
In 1824, in the case of Winny v. Whitesides (1 Missouri Rep., 473),
the Missouri Supreme Court held, that if a slave be detained in Illi-
nois until he be entitled to freedom, the right of the owner does
not revive when he finds the negro in a slave State. 5. As to
whether the status of slavery attached to the plaintiff and wife,
on their return to Missouri, this doctrine is not asserted in the
late opinion of the Supreme Court of Missouri, and up to 1852
the contrary doctrine was uniformly maintained by that court.
SCOTT v. SANDFORD. 489
JUSTICE CUETIS held that the plea in abatement was before the
court. To determine whether any person of African descent whose
ancestors were sold as slaves in the United States can be a citizen
of the United States, it may be inquired who were citizens of the
United States at the time of the adoption of the Constitution.
Citizens at that time can have been no other than the citizens of
the United States under the Confederation. These included free
persons descended from Africans held in slavery. At the time
of the ratification of the Articles of Confederation, all free native-
born inhabitants of the States of New Hampshire, Massachusetts,
New York, New Jersey and North Carolina., though descended
from African slaves, were not only citizens of those States, but such
of them as had the other necessary qualifications possessed the
franchise of electors, on equal terms with other citizens. He con-
cluded therefore, 1. That the free-born citizens of each State are
citizens of the United States. 2. That as free colored persons
born within some of the States are citizens of those States, such
persons are also citizens of the United States. 3. That every such
citizen, residing in any State, has the right to sue and is liable to
be sued in the Federal courts, as a citizen of that State in which he
resides. 4. That as the plea to the jurisdiction in this case shows
no facts, except that the plaintiff was of African descent, and his
ancestors were sold as staves, and as these facts are not inconsistent
with his citizenship of the United States, and his residence in the
State of Missouri, the plea to the jurisdiction was bad, and the
judgment of the Circuit Court overruling it, was correct. As to
the effect of Scott's residence in the Territory in which slavery
was prohibited, the judge held that the laws of the United States
in operation there changed his status to that of a free man. Fur-
thermore the consent of the master that his slave, residing in a
country which does not tolerate slavery, may enter into a lawful
contract of marriage, attended with the civil rights and duties
which belong to that condition, is an effectual act of emancipation.
The Act of Congress of March 6, 1820, was a regulation respecting
the territory of the United States, and was a constitutional and
valid law.]
NOTE. The court consisted at this time of nine judges, seven
of whom concurred in the judgment rendered. Of these seven,
only three, viz., Taney, Wayne and Daniel, held that the plea in
abatement was open, and hence that the question of the status of
free negroes was before the court. Justice Catron held that the
490 CASES ON CONSTITUTIONAL LAW.
plea was not open. Justices Nelson and Campbell took such views
of the case that they did not pass upon it, and Justice Grier seemed
to avoid the question. Six members of the court, viz., Taney,
Wayne, Daniel, Grier, Campbell, and Catron, concurred in pro-
nouncing the Missouri Compromise unconstitutional. Justice
Nelson did not pass upon it.
It is important in this case to distinguish the opinion of the
court from the judgment of the court. What is called in the re-
port the opinion of the court is in reality only the opinion of the
Chief Justice, which he delivered before announcing the judg-
ment of the court. The distinction appears clearly in the opinions
of Justices Campbell and Catron, who concurred in the judgment
of the Chief Justice, but expressly dissented from certain parts
of his opinion. The opinion of Justice Nelson was the only one
in which all the justices of the majority concurred. It was orig-
inally prepared to stand as the opinion of the court. See Thayer's
Cases, I, 480, note.
Scott's first case is reported in 15 Mo., 682.
"Had the supreme court confined its action to a denial of juris-
diction in this case on the ground taken by the Missouri state su-
preme court, the decision would probably have been accepted
generally as law, however harsh, in the case of slaves removed tem-
porarily from state jurisdiction and then brought back. But, im-
pelled, as has been charged, by a superserviceable desire to forward
the interests and designs of slave-holders in the territories, or as
is much more probable, by the wide sweep taken by counsel on both
sides in their arguments, the chief justice and the assenting jus-
tices proceeded to deliver a course of individual lectures on history,
politics, ethics and international law, the exact connection of which
with the legal subject matter in hand it was in many cases difficult
for the justices themselves to make perfectly clear. In these addi-
tions to the denial of jurisdiction lay the interest, importance and
far-reaching consequences of the Dred Scott decision. . . .
The Dred Scott decision was the last attempt to decide the con-
test between slavery extension and slavery restriction by form
of law." Alexander Johnston in Lalor's Cyclopedia, I, 839, 841.
"It is noticeable that the sting of the decision lay rather in the
obiter dicta than- in the determination of the main question in-
volved." Bryce, American Commonwealth (3d Ed.), I, 263, note.
"While Chief Justice TANEY has always in the public estimation
borne the brunt of this decision, it is nevertheless to be considered
that of the nine judges of the court six concurred with him in
SLAUGHTER-HOUSE CASES. 491
holding that the plaintiff was a slave, and that the judgment of
the court should be affirmed. Of these six (Catron, Daniel, Wayne,
Campbell, Nelson, and Grier) two not the two least strong
were respectively from the States of New York and Pennsylvania,
and had both held important judicial positions in those States be-
fore reaching the bench of the Federal Supreme Court. They
must all share and doubtless had none of them any desire to
avoid it the responsibility of this judgment of the court. The
opinion in dissent of Justice CURTIS, ... is profound in its
examination of the sources of the law upon the subject; luminous
and learned in its consideration of the political and judicial his-
tory of the country; and convincing in the conclusions to which
it arrives. Hardly too much can be said in praise of this masterly
effort." George W. Biddle in Constitutional History as seen in
American Law, 180-181.
SLAUGHTER-HOUSE CASES.
16 Wallace, 36. Decided 1873.
[The facts are sufficiently stated in the opinion of the court.]
MR. JUSTICE MILLER now, April 14, 1873, delivered the opinion
of the court.
These cases are brought here by writs of error to the Supreme
Court of the State of Louisiana. They arise out of the efforts of
the butchers of New Orleans to resist the Crescent City Live-Stock
Landing and Slaughter-House Company in the exercise of certain
powers conferred by the charter which created it, and which was
granted by the legislature of that State. . . .
The records show that the plaintiffs in error relied upon, and as-
serted throughout the entire course of the litigation in the State
courts, that the grant of privileges in the charter of defendant,
which they were contesting, was a violation of the most important
provisions of the thirteenth and fourteenth articles of amendment
of the Constitution of the United States. The jurisdiction and the
duty of this court to review the judgment of the State court on
those questions is clear and imperative.
The statute thus assailed as unconstitutional was passed March
8, 1869, and is entitled, "An act to protect the health of the city
492 CASES ON CONSTITUTIONAL LAW.
of Xew Orleans, to locate the stock-landings and slaughter-houses,
and to incorporate the Crescent City Live-Stock Landing and
Slaughter-House Company."
The first section forbids the landing or slaughtering of animals
whose flesh is intended for food, within the city of New Orleans
and other parishes and boundaries named and defined, or the keep-
ing or establishing any slaughter-houses or abattoirs within those
limits, except by the corporation thereby created, which is also lim-
ited to certain places afterwards mentioned. Suitable penalties
are enacted for violations of this prohibition.
The second section designates the corporators, gives the name
to the corporation, and confers on it the usual corporate powers.
The third and fourth sections authorize the company to estab-
lish and erect within certain territorial limits, therein defined, one
or more stock-yards, stock-landings, and slaughter-houses, and im-
pose upon it the duty of erecting, on or before the first day of
June, 1869, one grand slaughter-house of sufficient capacity for
slaughtering five hundred animals per day.
It declares that the company, after it shall have prepared all the
necessary buildings, yards, and other conveniences for that pur-
pose, shall have the sole and exclusive privilege of conducting and
carrying on the live-stock landing and slaughter-house business
within the limits and privilege granted 'by the act, and that all such
animals shall be landed at the stock-landings and slaughtered at
the slaughter-houses of the company, and nowhere else. Penalties
are enacted for infractions of this provision, and prices fixed for
the maximum charges of the company for each steamboat and for
each animal landed.
Section five orders the closing up of all other stock-landings and
slaughter-houses after the first day of June, in the parishes of Or-
leans, Jefferson, and St. Bernard, and makes it the duty of the
company to permit any person to slaughter animals in their
slaughter-houses under a heavy penalty for each refusal. Another
section fixes a limit to the charges to be made by the company for
each animal so slaughtered in their building, and another provides
for an inspection of all animals intended to be so slaughtered, by
an officer appointed by the governor of the State for that purpose.
These are the principal features of the statute, and are all that
have any bearing upon the questions to be decided by us.
This statute is denounced not only as creating a monopoly and
conferring odious and exclusive privileges upon a small number of
SLAUGHTER-HOUSE CASES. 493
persons at the expense of the great body of the community of
New Orleans, but it is asserted that it deprives a large and meritor-
ious class of citizens the whole of the butchers of the city of the
right to exercise their trade, the business to which they have been
trained and on which they depend for the support of themselves
and their families; and that the unrestricted exercise of the busi-
ness of butchering is necessary to the daily subsistence of the popu-
lation of the city.
But a critical examination of the act hardly justifies these asser-
tions.
It is true that it grants, for a period of twenty-five years, exclu-
sive privileges. And whether those privileges are at the expense
of the community in the sense of a curtailment of any of their
fundamental rights, or even in the sense of doing them an injury,
is a question open to considerations to be hereafter stated. But
it is not true that it deprives the butchers of the right to exercise
their trade, or imposes upon them any restriction incompatible with
its successful pursuit, or furnishing the people of the city with the
necessary daily supply of animal food.
The act divides itself into two main grants of privilege, the
one in reference to stock-landings and stock-yards, and the other
to slaughter-houses. That the landing of live-stock in large droves,
from steamboats on the bank of the river, and from railroad trains,
should, for the safety and comfort of the people and the care of
the animals, be limited to proper places, and those not numerous,
it needs no argument to prove. Nor can it be injurious to the
general community that while the duty of making ample prepara-
tion for this is imposed upon a few men, or a corporation, they
should, to enable them to do it successfully, have the exclusive
right of providing such landing-places, and receiving a fair com-
pensation for the service.
It is, however, the slaughter-house privilege, which is mainly
relied on to justify the charges of gross injustice to the public, and
invasion of private right.
It is not, and cannot be successfully controverted, that it is
both the right and the duty of the legislative body the supreme
power of the State or municipality to prescribe and determine the
localities where the business of slaughtering for a great city may be
conducted. To do this effectively it is indispensable that all per-
sons who slaughter animals for food shall do it in those places and
nowhere else.
The statute under consideration defines these localities and for-
494 CASES ON CONSTITUTIONAL LAW.
bids slaughtering in any other. It does not, as has been asserted,
prevent the butcher from doing his own slaughtering. On the
contrary, the Slaughter-House Company is required, under a heavy
penalty, to permit any person who wishes to do so, to slaughter in
their houses; and they are bound to make ample provision for the
convenience of arl the slaughtering for the entire city. The
butcher then is still permitted to slaughter, to prepare, and to sell
his own meats; but he is required to slaughter at a specified place
and to pay a reasonable compensation for the use of the accommo-
dations furnished him at that place.
The wisdom of the monopoly granted by the legislature may be
open to question, but it is difficult to see a justification for the
assertion that the butchers are deprived of the right to labor in
their occupation, or the people of their daily service in preparing
food, or how this statute, with the duties and guards imposed upon
the company, can be said to destroy the business of the butcher, or
seriously interfere with its pursuit.
The power here exercised by the legislature of Louisiana is, in
its essential nature, one which has been, up to the present period
in the constitutional history of this country, always conceded to
belong to the States, however it may now be questioned in some
of its details.
"Unwholesome trades, slaughter-houses, operations offensive to
the senses, the deposit of powder, the application of steam-power to
propel cars, the building with combustible materials, and the burial
of the dead, may all," says Chancellor Kent, 1 "be interdicted by
law, in the midst of dense masses of population, on the general and
rational principle, that every person ought so to use his property as
not to injure his neighbors; and that private interests must be made
subservient to the general interests of the community." This is
called the police power; and it is declared by Chief Justice Shaw, 2
that it is much easier to perceive and realize the existence and
sources of it than to mark its boundaries, or prescribe limits to its
exercise.
This power is, and must be from its very nature, incapable of any
very exact definition or limitation. Upon it depends the security
of social order, the life and health of the citizen, the comfort of
an existence in a thickly populated community, the enjoyment of
private and social life, and the beneficial use of property. "It ex-
1 2 Commentaries, 340.
2 Commonwealth v. Alger, 7 Cushing, 84.
SLAUGHTER-HOUSE CASES. 495
tends," says another eminent judge, 3 "to the protection of the lives,
limbs, health, comfort, and quiet of all persons, and the protection
of all property within the State; . . . and persons and prop-
erty are subjected to all kinds of restraints and burdens in order
to secure the general comfort, health, and prosperity of the State.
Of the perfect right of the legislature to do this no*question ever
was, or, upon acknowledged general principles, ever can be made,
so far as natural persons are concerned."
The regulation of the place and manner of conducting the
slaughtering of animals, and the business of butchering within a
city, and the inspection of the animals to be killed for meat, and
of the meat afterwards, are among the most necessary and frequent
exercises of this power. It is not, therefore, needed that we should
seek for a comprehensive definition, but rather look for the proper
source of its exercise. . . . [Here follows an extract from
Gibbons v. Ogden, 9 Wheaton, 203],
The exclusive authority of State legislation over this subject is
strikingly illustrated in the case of the City of New York v. Miln. 4
In that case the defendant was prosecuted for failing to comply
with a statute of New York which required of every master of a
vessel arriving from a foreign port, in that of New York City, to
report the names of all his passengers, with certain particulars of
their age, occupation, last place of settlement, and place of their
birth. It was argued that this act was an invasion of the exclusive
right of Congress to regulate commerce. And it cannot be de-
nied, that such a statute operated at least indirectly upon the com-
mercial intercourse between citizens of the United States and of
foreign countries. But notwithstanding this it was held to be an
exercise of the police power properly within the control of the
State, and unaffected by the clause of the Constitution which con-
ferred on Congress the right to regulate commerce.
To the same purpose are the recent cases of The License Tax, 5
and United States v. DeWitt. In the latter case an act of Con-
gress which undertook as a part of the internal revenue laws to
make it a misdemeanor to mix for sale naphtha and illuminating
oils, or to sell oil of petroleum inflammable at less than a pre-
scribed temperature, was held to be void, because as a police regu-
lation the power to make such a law belonged to the States, and
did not belong to Congress.
3 Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont, 149.
4 11 Peters, 102.
* 5 Wallace, 471.
6 9 Id., 41.
496 CASES ON CONSTITUTIONAL LAW.
It cannot be denied that the statute under consideration is aptly
framed to remove from the more densely populated part of the
city the noxious slaughter-houses, and large and offensive collec-
tions of animals necessarily incident to the slaughtering business
of a large city, and to locate them where the convenience, health,
and comfort of the people require they shall be located. And it
must be conceded that the means adopted by the act for this pur-
pose are appropriate, are stringent, and. effectual. But it is said
that in creating a corporation for this purpose, and conferring upon
it exclusive privileges privileges which it is said constitute a mo-
nopoly the legislature has exceeded its power. If this statute
had imposed on the city of New Orleans precisely the same duties,
accompanied by the same privileges, which it has on the corpora-
tion which it created, it is believed that no question would have
been raised as to its constitutionality. In that case the effect on
the butchers in pursuit of their occupation and on the public would
have been the same as it is now. Why cannot the legislature con-
fer the same powers on another corporation, created for a lawful
and useful public object, that it can on the municipal corporation
already existing? That wherever a legislature has the right to
accomplish a certain result, and that result is best attained by
means of a corporation, it has the right to create such a corpora-
tion, and to endow it with the powers necessary to effect the de-
sired and lawful purpose, seems hardly to admit of debate. The
proposition is ably discussed and affirmed in the case of McCulloch
v. The State of Maryland, 7 in relation to the power of Congress
to organize the Bank of the United States to aid in the fiscal operar
tions of the government.
It can readily be seen that the interested vigilance of the corpo-
ration created by the Louisiana legislature will be more efficient
in enforcing the limitation prescribed for the stock-landing and
slaughtering business for the good of the city than the ordinary
efforts of the officers of the law.
Unless, therefore, it can be maintained that the exclusive privi-
lege granted by this charter to the corporation is beyond the power
of the legislature of Louisiana, there can be no just exception to
the validity of the statute. And in this respect we are not able to
see that these privileges are especially odious or objectionable.
The duty imposed as a consideration for the privilege is well de-
fined, and its enforcement well guarded. The prices or charges
7 4 Wheat., 316.
SLAUGHTER-HOUSE CASES. 497
to be made by the company are limited by the statute, and we are
not advised that they are on the whole exorbitant or unjust.
The proposition is, therefore, reduced to these terms: Can any
exclusive privileges be granted to any of its citizens, or to a corpo-
ration, by the legislature of a State?
The eminent and learned counsel who has twice argued the nega-
tive of this question, has displayed a research into the history of
monopolies in England and the European continent, only equalled
by the eloquence with which they are denounced.
But it is to be observed, that all such references are to monopo-
lies established by the monarch in derogation of the rights of his
subjects, or arise out of transactions in which the people were un-
represented, and their interests uncared for. The great Case of
Monopolies, reported by Coke, and so fully stated in the brief,
was undoubtedly a contest of the commons against the monarch.
The decision is based upon the ground that it was against com-
mon law, and the argument was aimed at the unlawful assump-
tion of power by the crown; for who ever doubted the authority of
Parliament to change or modify the common law? The discussion
in the House of Commons cited from Macaulay clearly establishes
that the contest was between the Crown, and the people represented
in Parliament.
But we think it may be safely affirmed, that the Parliament of
Great Britain, representing the people in their legislative functions,
and the legislative bodies of this country, have from time immem-
orial to the present day continued to grant to persons and corpora-
tions exclusive privileges, privileges denied to other citizens,
privileges which come within any just definition of the word mo-
nopoly, as much as those now under consideration; and that the
power to do this has never been questioned or denied. Nor can
it be truthfully denied, that some of the most useful and bene-
ficial enterprises set on foot for the general good, have been made
successful by means of these exclusive rights, and could only have
been conducted to success in that way.
It may, therefore, be considered as established, that the authority
of the legislature of Louisiana to pass the present statute is ample,
unless some restraint in the exercise of that power be found in the
constitution of that State or in the amendments to the Constitution
of the United States, adopted since the date of the decisions we
have already cited.
If any such restraint is supposed to exist in the constitution of
the State, the Supreme Court of Louisiana having necessarily
498 CASES ON CONSTITUTIONAL LAW.
passed on that question, it would not be open to review in this
court.
The plaintiffs in error accepting this issue, allege that the statute
is a violation of the Constitution of the United States in these sev-
eral particulars:
That it creates an involuntary servitude forbidden by the thir-
teenth article of amendment;
That it abridges the privileges and immunities of citizens of the
United States;
That it denies to the plaintiffs the equal protection of the laws;
and,
That it deprives them of their property without due process of
law; contrary to the provisions of the first section of the fourteenth
article of amendment.
This court is thus called upon for the first time to give construc-
tion to these articles.
We do not conceal from ourselves the great responsibility which
this duty devolves upon us. No qiiestions so far-reaching and per-
vading in their consequences, so profoundly interesting to the peo-
ple of this country, and so important in their bearing upon the rela-
tions of the United States, and of the several States to each other
and to the citizens of the States and of the United States, have
been before this court during the official life of any of its present
members. We have given every opportunity for a full hearing at the
bar; we have discussed it freely and compared views among our-
selves; we have taken ample time for careful deliberation, and we
now propose to announce the judgments which we have formed in
the construction of those articles, so far as we have found them
necessary to the decision of the cases before us, and beyond that
we have neither the inclination nor the right to go.
Twelve articles of amendment were added to the Federal Consti-
tution soon after the original organization of the government under
it in 1789. Of these all but the last were adopted so soon after-
wards as to justify the statement that they were practically con-
temporaneous with the adoption of the original; and the twelfth,
adopted in eighteen hundred and three, was so nearly so as to have
become, like all the others, historical and of another age. But
within the last eight years three other articles of amendment of
vast importance have been added by the voice of the people to that
now venerable instrument.
The most cursory glance at these articles discloses a unity of
SLAUGHTER-HOUSE CASES. 499
purpose, when taken in connection with the history of the times,
which cannot fail to have an important bearing on any question of
doubt concerning their true meaning. Nor can such doubts, when
any reasonably exist, be safely and rationally solved without a refer-
ence to that history; for in it is found the occasion and the necessity
for recurring again to the great source of power in this country, the
people of the States, for additional guarantees of human rights;
additional powers to the Federal government; additional restraints
upon those of the States. Fortunately that history is fresh within
the memory of us all, and its leading features, as they bear upon
the matter before us, free from doubt.
The institution of African slavery, as it existed in about half
the States of the Union, and the contests pervading the public
mind for many years, between those who desired its curtailment
and ultimate extinction and those who desired additional safeguards
for its security and perpetuation, culminated in the effort, on the
part of most of the States in which slavery existed, to separate
from the Federal government, and to resist its authority. This con-
stituted the war of the rebellion, and whatever auxiliary causes
may have contributed to bring about this war, undoubtedly the
overshadowing and efficient cause was African slavery.
In that struggle slavery, as a legalized social relation, perished.
It perished as a necessity of the bitterness and force of the con-
flict. When the armies of freedom found themselves upon the soil
of slavery they could do nothing less than free the poor victims
whose enforced servitude was the foundation of the quarrel. And
when hard pressed in the contest these men (for they proved them-
selves men in that terrible crisis) offered their services and were
accepted by thousands to aid in suppressing the unlawful rebellion,
slavery was at an end wherever the Federal government succeeded
in that purpose. The proclamation of President Lincoln expressed
an accomplished fact as to a large portion of the insurrectionary
districts, when he declared slavery abolished in them all. But
the war being over, those who had succeeded in re-establishing the
authority of the Federal government were not content to permit
this great act of emancipation to rest on the actual results of the
contest or the proclamation of the Executive, both of which might
have been questioned in after times, and they determined to place
this main and most valuable result in the Constitution of the re-
stored Union as one of its fundamental articles. Hence the thir-
teenth article of amendment of that instrument. Its two short
500 CASES ON CONSTITUTIONAL LAW.
sections seem hardly to admit of construction, so vigorous is their
expression and so appropriate to the purpose we have indicated.
"1. Neither slavery nor involuntary servitude, except as a pun-
ishment for crime, whereof the party shall have heen duly con-
victed, shall exist within the United States or any place subject to
their jurisdiction.
"2. Congress shall have power to enforce this article by appro-
priate legislation."
To withdraw the mind from the contemplation of this grand
yet simple declaration of the personal freedom of all the human
race within the jurisdiction of this government a declaration de-
signed to establish the freedom of four million of slaves and with
a microscopic search endeavor to find in it a reference to servitudes,
which may have been attached to property in certain localities, re-
quires an effort, to say the least of it.
That a personal servitude was meant is proved by the use of the
word "involuntary," which can only apply to human beings. The
exception of servitude as a punishment for crime gives an idea of
the class of servitude that is meant. The word "servitude" is of
larger meaning than slavery, as the latter is popularly understood
in this country, and the obvious purpose was to forbid all shades
and conditions of African slavery. It was very well understood,
that in the form of appreticeship for long terms, as it had been
practiced in the West India Islands, on the abolition of slavery by
the English government, or by reducing the slaves to the condition
of serfs attached to the plantation, the purpose of the article might
have been evaded, if only the word "slavery" had been used. The
case of the apprentice slave, held under a law of Maryland, liber-
ated by Chief Justice Chase, on a writ of habeas corpus under this
article, illustrates this course of observation. 1 And it is all that
we deem necessary to say on the application of that article to the
statute of Louisiana, now under consideration.
The process of restoring to their proper relations with the Fed-
eral government and with the other States those which had sided
with the rebellion, undertaken under the proclamation of President
Johnson in 1865, and before the assembling of Congress, devel-
oped the fact that, notwithstanding the formal recognition by those
States of the abolition of slavery, the condition of the slave race
would, without further protection of the Federal government, be
almost as bad as it was before. Among the first acts of legislation
adopted by several of the States in the legislative bodies whioh
i Matter of Turner, 1 Abbott United States Reports, 84.
SLAUGHTER-HOUSE CASES. 501
claimed to be in their normal relations with the Federal govern-
ment, were laws which imposed upon the colored race onerous
disabilities and burdens, and curtailed their rights in the pursuit
of life, liberty, and property to such an extent that their freedom
was of little value, while they had lost the protection which they
had received from their former owners from motives both of inter-
est and humanity.
They were in some States forbidden to appear in the towns in any
other character than menial servants. They were required to re-
side on and cultivate the 'soil without the right to purchase or
own it. They were excluded from many occupations of gain, and
were not permitted to give testimony in the courts in any ca,se
where a white man was a party. It was said that their lives were
at the mercy of bad men, either because the laws for their pro-
tection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception
may have been mingled with their presentation, forced upon the
statesmen who* had conducted the Federal government in safety
through the crisis of the rebellion, and who supposed that by the
thirteenth article of amendment they had secured the result of
their labors, the conviction that something more was necessary in
the way of constitutional protection to the unfortunate race who
had suffered so much. They accordingly passed through Congress
the proposition for the fourteenth amendment, and they declined
to treat as restored to their full participation in the government of
the Union the States which had been in insurrection, until they
ratified that article by a formal vote of their legislative bodies.
Before we proceed to examine more critically the provisions of
this amendment, on which the plaintiffs in error rely, let us com-
plete and dismiss the history of the recent amendments, as that
history relates to the general purpose which pervades them all.
A few years' experience satisfied the thoughtful men who had been
the authors of the other two amendments that, notwithstanding
the restraints of those articles on the States, and the laws passed
under the additional powers granted to Congress, these were inade-
quate for the protection of life, liberty, and property, without
which freedom to the slave was no boon. They were in all those
States denied the right of suffrage. The laws were administered,
by the white man alone. It was urged that a race of men dis-
tinctively marked as was the negro, living in the midst of another
and dominant race, could never be fully secured in their person
and their property without the right of suffrage.
502 CASES ON CONSTITUTIONAL LAW.
Hence the fifteenth amendment, which declares that "the right
of a citizen of the United States to vote shall not be denied or
abridged by any State on account of race, color, or previous condi-
tion of servitude." The negro having, by the fourteenth amend-
ment, been declared to be a citizen of the United States, is thus
made a voter in every State of the Union.
We repeat, then, in the light of this recapitulation of events,
almost too recent to be called history, but which are familiar to us
all; and on the most casual examination of the language of these
amendments, no one can fail to be impressed with the one per-
vading purpose found in them all, lying at the foundation of each,
and without which none of them would have been even suggested;
we mean the freedom of the slave race, the security and firm estab-
lishment of that freedom, and the protection of the newly-made
freeman and citizen from the oppressions of those who had for-
merly exercised unlimited dominion over him.lt is true that only
the fifteenth amendment, in terms, mentions the negro by speak-
ing of his color and his slavery. But it is just as*true that each
of the other articles was addressed to the grievances of that race,
and designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this
protection. Both the language and spirit of these articles are to
have their fair and just weight in any question of construction.
Undoubtedly while negro slavery alone was in the mind of the
Congress which proposed the thirteenth article, it forbids any other
kind of slavery, now or hereafter. If Mexican peonage or the
Chinese cooly labor system shall develop slavery of the Mexican
or Chinese race within our territory, this amendment may safely be
trusted to make it void. And so if other rights are assailed by the
States which properly and necessarily fall within the protection of
these articles, that protection will apply, though the party inter-
ested may not be of African descent. But what we do say, and
what we wish to be understood is, that in any fair and just con-
struction of any section or phrase of these amendments, it is
necessary to look to the purpose which we have said was the per-
vading spirit of them all, the evil which they were designed to
remedy, and the process of continued addition to the Constitution,
until that purpose was supposed to be accomplished, as far as
constitutional law can accomplish it.
The first section of the fourteenth article, to which our atten-
tion is more specially invited, opens with a definition of citizenship
not only citizenship of the United States, but citizenship of the
SLAUGHTER-HOUSE CASES. 503
States. No such definition was previously found in the Constitu-
tion, nor had any attempt been made to define it by act of Congress.
It had been the occasion of much discussion in the courts, by the
executive departments, and in the public journals. It had been
said by eminent judges that no man was a citizen of the United
States except as he was a citizen of one of the States
composing the Union. Those, therefore, who had been born
and resided always in the District of Columbia or in the Territories,
though within the United States, were not citizens. Whether this
proposition was sound or not had never been judicially decided.
But it had been held by this court, in the celebrated Dred Scott
case, only a few years before the outbreak of the civil war, that
a man of African descent, whether a slave or not, was not and
could not be a citizen of a State or of the United States. This
decision, while it met the condemnation of some of the ablest
statesmen and constitutional lawyers of the country, had never
been overruled; and if it was to be accepted as a constitutional
limitation of the right of citizenship, then all the negro race who
had recently been made freemen, were still, not only not -citizens,
but were incapable of becoming so by anything short of an amend-
ment to the Constitution.
To remove this difficulty primarily, and to establish a clear and
comprehensive definition of citizenship which should declare what
should constitute citizenship of the United States, and also citizen-
ship of a State, the first clause of the first section was framed.
"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."
The first observation we have to make on this clause is, that it
puts at rest both the questions which we stated to have been the
subject of differences of opinion. It declares that persons may be
citizens of the United States without regard to their citizenship of
a particular State, and it overturns the Dred Scott decision by
making all persons born within the United States and subject to its
jurisdiction citizens of the United States. That its main purpose
was to establish the citizenship of the negro can admit of no doubt.
The phrase, "subject to its jurisdiction" was intended to exclude
from its operation children of ministers, consuls, and citizens or
subjects of foreign States born within the United States.
The next observation is more important in view of the arguments
of counsel in the present case. It is, that the distinction between
citizenship of the United States and citizenship of a State is clearly
504 CASES ON CONSTITUTIONAL LAW.
recognized and established. Not only may a man be a citizen of
the United States without being a citizen of a State, but an im-
portant element is necessary to convert the former into the latter.
He must reside within the State to make him a citizen of it, but it is
only necessary that he should be born or naturalized in the United
States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a State, which are distinct from each
other, and which depend upon different characteristics or circum-
stances in the individual.
We think this distinction and its explicit recognition in this
amendment of great weight in this argument, because the next
paragraph of this same section, which is the one mainly relied on
by the plaintiffs in error, speaks only of privileges and immunities
of citizens of the United States, and does not speak of those of
citizens of the several States. The argument, however, in favor of
the plaintiffs rests wholly on the assumption that the citizenship
is the same, and the privileges and immunities guaranteed by the
clause are the same.
The language is, "Xo State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States." It is a little remarkable, if this clause was intended as a
protection to the citizen of a State against the legislative power of
his own State, that the word citizen of the State should be left out
when it is so carefully used, and used in contradistinction to citizens
of the United States, in the very sentence which precedes it. It is
too clear for argument that the change in phraseology was adopted
understandingly and with a purpose.
Of the privileges and immunities of the citizen of the United
States, and of the privileges and immunities of the citizen of the
State, and what they respectively are, we will presently consider;
but we wish to state here that it is only the former which are
placed by this clause under the protection of the Federal Constitu-
tion, ancl that the latter, whatever they may be, are not intended
to have any additional protection by this paragraph of the amend-
ment.
If, then, there is a difference between the privileges and immuni-
ties belonging to a citizen of the United States as such, and those
belonging to the citizen of the State as such, the latter must rest
for their security and protection where they have heretofore rested;
for they are not embraced by this paragraph of the amendment.
The first occurrence of the words "privileges and immunities"
SLAUGHTER-HOUSE CASES. 505
in our constitutional history, is to be found in the fourth of the
articles of the old Confederation.
It declares "that the better to secure and perpetuate mutual
friendship and intercourse among the people of the different States
in this Union, the free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice excepted, , shall be entitled to
all the privileges and immunities of free citizens in the several
States; and the people of each State shall have free ingress and
regress to and from any other State, and shall enjoy therein all the
privileges of trade and commerce, subject to the same duties, im-
positions, and restrictions as the inhabitants thereof respectively."
In the Constitution of the United States, which superseded the
Articles of Confederation, the corresponding provision is found in
section two of the fourth article, in the following words: "The
citizens of each State shall be entitled to all the privileges and im-
munities of citizens of the several States."
There can be but little question that the purpose of both these
provisions is the same, and that the privileges and immunities in-
tended are the same in each. In the article of the Confederation
we have some of these specifically mentioned, and enough perhaps
to give some general idea of the class of civil rights meant by the
phrase.
Fortunately we are not without judicial construction of this
clause of the Constitution. The first and the leading case on the
subject is that of Corfield v. Coryell, decided by Mr. Justice Wash-
ington in the Circuit Court for the District of Pennsylvania in
1823. 1
"The inquiry," he says, "is, what are the privileges and immuni-
ties of citizens of the several States? We feel no hesitation in
confining these expressions to those privileges and immunities
which are fundamental; which belong of right to the citizens of all
free governments, and which have at all times been enjoyed by
citizens of the several States which compose this Union, from the
time of their becoming free, independent, and sovereign. What
these fundamental principles are, it would be more tedious than
difficult to enumerate. They may all, however, be comprehended
under the following general heads: protection by the government,
with the right to acquire and possess property of every kind, and
to pursue and obtain happiness and safety, subject, nevertheless,
to such restraints as the government may prescribe for the gen-
eral good of the whole." [The court then cites Ward v. The State
i 4 Washington's Circuit Court, 371.
506 CASES ON CONSTITUTIONAL LAW.
of Maryland^ 12 Wallace, 430, and Paul v. Virginia, 8 Wallace,
180].
The constitutional provision there alluded to did not create those
rights, which it called privileges and immunities of citizens of the
States. It threw around them in that clause no security for the
citizen of the State in which they were claimed or exercised. Nor
did it profess to control the power of the State governments over
the rights of its own citizens.
Its sole purpose was to declare to the several States, that what-
ever those rights, as you grant or establish them to your own citi-
zens, or as you limit or qualify, or impose restrictions on their
exercise, the same, neither more nor less, shall be the measure of
the rights of citizens of other States within your jurisdiction.
It would be the vainest show of learning to attempt to prove by
citation of authority, that up to the adoption of the recent amend-
ments, no claim or pretense was set up that those rights depended
on the Federal government for their existence or protection, beyond
the very few express limitations which the Federal Constitution
imposed upon the States such, for instance, as the prohibition
against ex post facto laws, bills of attainder, and laws impairing
the obligation of contracts. But with the exception of these and
a few other restrictions, the entire domain of the privileges and
immunities of citizens of the States, as above denned, lay within
the constitutional and legislative power of the States, and without
that of the Federal government. Was it the purpose of the four-
teenth amendment, by the simple declaration that no State should
make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States, to transfer the security
and protection of all the civil rights which we have mentioned,
from the States to the Federal government? And where it is de-
clared that Congress shall have the power to enforce that article,
was it intended to bring within the power of Congress the entire
domain of civil rights heretofore belonging exclusively to the
States?
All this and more must follow, if the proposition of the plaintiffs
in error be sound. For not only are these rights subject to the
control of Congress whenever in its discretion any of them are
supposed to be abridged by State legislation, but that body may
also pass laws in advance, limiting and restricting the exercise of
legislative power by the States, in their most ordinary and usual
functions, as in its judgment it may think proper on all such sub-
jects. And still further, such a construction followed by the
SLAUGHTER-HOUSE CASES. 507
reversal of the judgments of the Supreme Court of Louisiana in
these cases, would constitute this court a perpetual censor upon all
legislation of the States, on the civil rights of their own citizens,
with authority to nullify such as it did not approve as consistent
with those rights, as they existed at the time of the adoption of
this amendment. The argument, we admit, is not always the most
conclusive which is drawn from the consequences urged against
the adoption of a particular construction of an instrument. But
when, as in the case before us, these consequences are so serious,
so far-reaching and pervading, so great a departure from the
structure and spirit of our institutions; when the effect is to fetter
and degrade the State governments by subjecting them to the
control of Congress, in the exercise of powers heretofore universally
conceded to them of the most ordinary and fundamental character;
when in fact it radically changes the whole theory of the relations
of the State and Federal governments to each other and of both
these governments to the people; the argument has a force that is
irresistible, in the absence of language which expresses such a pur-
pose too clearly to admit of doubt.
We are convinced that no such results were intended by the Con-
gress which proposed these amendments, nor by the legislatures of
the States which ratified them.
Having shown that the privileges and immunities relied on in
the argument are those which 'belong to citizens of the States as
such, and that they are left to the State governments for security
and protection, and not by this article placed under the special
care of the Federal government, we may hold ourselves excused
from defining the privileges and immunities of citizens of the
United States which no State can abridge, until some case involving
those privileges may make it necessary to do so.
But lest it should be said that no such privileges and immunities
are to be found if those we have been considering are excluded, we
venture to suggest some which owe their existence to the Federal
government, its National character, its Constitution, or its laws.
One of these is well described in the case of Crandall v. Nevada. 1
It is said to be the right of the citizen of this great country, pro-
tected by implied guarantees of its Constitution, "to come to the
seat of government to assert any claim he may have upon that gov-
ernment, to transact any business he may have with it, to seek its
protection, to share its offices, to engage in administering its
functions. He has the right of free access to its*seaports, through
i 6 Wall., 36.
508 CASES ON CONSTITUTIONAL LAW.
which all operations of foreign commerce are conducted, to the
sub-treasuries, land offices, and courts of justices in the several
States." And quoting from the language of Chief Justice Taney
in another case, it is said "that for all the great purposes for which
the Federal government was established, we are one people, with
one common country, we are all citizens of the United States;" and
it is, as such citizens, that their rights are supported in this court
in Crandall v. Nevada.
Another privilege of a citizen of the United States is to demand
the care and protection of the Federal government over his life,
liberty, and property when on the high seas or within the juris-
diction of a foreign government. Of this there can be no doubt,
nor that the right depends upon his character as a citizen of the
United States. The right to peaceably assemble and petition for
redress of grievances, the privilege of the writ of habeas corpus,
are rights of the citizen guaranteed by the Federal Constitution.
The right to use the navigable waters of the United States, how-
ever they may penetrate the territory of the several States, all
rights secured to our citizens by treaties with foreign nations, are
dependent upon citizenship of the United States, and not citizen-
ship of a State. One of these privileges is conferred by the very
article under consideration. It is that a citizen of the United
States can, of his own volition, become a citizen of any State of
the Union by a bona fide residence therein, with the same rights as
other citizens of that State. To these may be added the rights
secured by the thirteenth and fifteenth articles of amendment,
and by the other clause of the fourteenth, next to be considered.
But it is useless to pursue this branch of the inquiry, since we
are of opinion that the rights claimed by these plaintiffs in error,
if they have any existence, are not privileges and immunities of
citizens of the United States within the meaning of the clause of
the fourteenth amendment under consideration.
"All persons born or naturalized in the United States, and sub-
ject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce
any law which shall abridge the 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 its laws."
The argument has not been much pressed in these cases that
the defendant's charter deprives the plaintiffs of their property
without due process of law, or that it denies to them the equal
SLAUGHTER-HOUSE CASES. 509
protection of the law. The first of these paragraphs has been in
the Constitution since the adoption of the fifth amendment, as a
restraint upon the Federal power. It is also to be found in some
form of expression in the constitutions of nearly all the States, as a
restraint upon the power of the States. This law, then, has prac-
tically been the same as it now is during the existence of the
government, except so far as the present amendment may place the
restraining power over the States in this matter in the hands of the
Federal government.
We are not without judicial interpretation, therefore, both State
and National, of the meaning of this clause. And it is sufficient to
say that under no construction of that provision that we have ever
seen, or any that we deem admissible, can the restraint imposed by
the State of Louisiana upon the exercise of their trade by the
butchers of New Orleans be held to be a deprivation of property
within the meaning of that provision.
"Nor shall any State deny to any person within its jurisdiction
the equal protection of the laws."
In the light of the history of these amendments, and the per-
vading purpose of them, which we have already discussed, it is not
difficult to give a meaning to this clause. The existence of laws in
the States where the newly emancipated negroes resided, which
discriminated with gross injustice and hardship against them as a
class, was the evil to be remedied by this clause, and by it such
laws are forbidden.
If, however, the States did not conform their laws to its require-
ments, then by the fifth section of the article of amendment Con-
gress was authorized to enforce it by suitable legislation. We
doubt very much whether any action of a State not directed by way
of discrimination against the negroes as a class, or on account of
their race, will ever be held to come within the purview of this
provision. It is so clearly a provision for that race and that emer-
gency, that a strong case would be necessary for its application to
any other. But as it is a State that is to be dealt with, and not
alone the validity of its laws, we may safely leave that matter until
Congress shall have exercised its power, or some case of State op-
pression, by denial of equal justice in its courts, shall have claimed
a decision at our hands. We find no such case in the one before us,
and do not deem it necessary to go over the argument again, as it
may have relation to this particular clause of the amendment.
In the early history of the organization of the government, its
statesmen seem to have divided on the line which should separate
510 CASES ON CONSTITUTIONAL LAW.
the powers of the National government from those of the State
governments, and though this line has never been very well defined
in public opinion, such a division has continued from that day to
this.
The adoption of the first eleven amendments to the Constitution
so soon after the original instrument was accepted, shows a prevail-
ing sense of danger at that time from the Federal power. And 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 IJnion
was in the capacity of the State organizations to combine and con-
centrate all the powers of the State, and of contiguous States, for
a determined resistance to the General Government.
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.
But, however pervading this sentiment, and however it may have
contributed to the adoption of the amendments we have been con-
sidering, 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 of property was essential to the
perfect working of our complex form of government, though they
may have thought proper to impose additional limitations on the
States, and to confer additional power on that of the Nation.
But whatever fluctuations may be seen in the history of public
opinion on this subject during the period of our national existence,
we think it will be found that this court, so far as its functions
required, has always held with a steady and even hand the balance
between State and Federal power, and we trust that such may con-
tinue 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 Constitution, or any of its parts.
The judgments of the Supreme Court of Louisiana in these cases
are affirmed.
[CHIEF JUSTICE CHASE and JUSTICES FIELD, SWAYNE, and
BKADLEY dissented. The last three delivered opinions.]
NOTE. In 1887 Mr. Justice Miller made the following statement
in the nature of a defense of his opinion in this case:
STRAUDER v. WEST VIRGINIA. 511
"Although this opinion did not meet the approval of four out
of nine of the judges on some of the points on which it rested,
yet public sentiment, as found in the press and in the universal
acquiescence which it received, accepted it with great unanimity;
and although there were intimations that in the legislative branches
of the Government the opinion would be reviewed and criticised
unfavorably, no such thing has occurred 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 before the Supreme Court of the United States, no
attempt to override or disregard this elementary decision of the
effect of the three new constitutional amendments upon the rela-
tions of the State governments to the Federal government has been
made; and it may be considered now as settled that, with the
exception of the specific provisions in them for the protection of
the personal rights of the citizens and people of the United States,
and the necessary restrictions upon the power of the States for that
purpose, with the additions to the powers of the General Govern-
ment to enforce these provisions, no substantial change has been
made. The necessity of the great powers, conceded by the Consti-
tution 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 complex
form of government." Miller, Lectures on the Constitution of the
United States, 411.
STEAUDEE v. WEST VIRGINIA.
100 U. S., 303. Decided 1879.
ERROR to the Supreme Court of Appeals of the State of West
Virginia.
The facts are stated in the opinion of the court. . . .
MR. JUSTICE STROXG delivered the opinion of the court.
The plaintiff in error, a colored man, was indicted for murder in
the Circuit Court of Ohio County, in West Virginia, on the 20th
of October, 1874, and upon trial was convicted and sentenced.
The record was then removed to the Supreme Court of the State,
and there the judgment of the Circuit Court was affirmed. The
present case is a writ of error to that court, and it is now, in sub-
512 CASES ON CONSTITUTIONAL LAW.
stance, averred that at the trial in the State court the defendant
(now plaintiff in error) was denied rights to which he was entitled
under the Constitution and laws of the United States.
In the Circuit Court of the State, before the trial of the indict-
ment was commenced, the defendant presented his petition, verified
by his oath, praying for a removal of the cause into the Circuit
Court of the United States, assigning, as ground for the removal,
that, "by virtue of the laws of the State of West Virginia no
colored man was eligible to be a member of the grand jury or to
serve on a petit jury in the State; that white men are so eligible,
and that by reason of his being a colored man and having been
a slave, he had reason to believe, and did believe, he could not
have the full and equal benefit of all laws and proceedings in the
State of West Virginia for the security of his person as is enjoyed
by white citizens, and that he had less chance of enforcing in the
courts of the State his rights on the prosecution, as a citizen of the
United States, and that the probabilities of a denial of them to
him as such citizen on every trial which might take place on the
indictment in the courts of the State were much more enhanced
than if he was a white man." This petition was denied by the
State court, and the cause was forced to trial.
Motions to quash the venire, "because the law under which it
was issued was unconstitutional, null, and void," and successive
motions to challenge the array of the panel, for a new trial, and in
arrest of judgment were then made, all of which were overruled
and made by exceptions parts of the record.
The law of the State to which reference was made in the petition
for removal and in the several motions was enacted on the 12th
of March, 1873 (Acts of 1872-73, p. 102), and it is as follows:
"All white male persons who are twenty-one years of age and who
are citizens of this State shall be liable to serve as jurors, except
as herein provided." The persons excepted are State officials.
In this court, several errors have been assigned, and the con-
trolling questions underlying them all are, first, whether, by the
Constitution and laws of the United States, every citizen of the
United States has a right to a trial of an indictment against him
by a jury selected and impanelled without discrimination against
his race or color, because of race or color; and, second, if he has
such a right, and is denied its enjoyment by the State in which
he is indicted, may he cause the case to be removed into the Circuit
Court of the United States?
It is to be observed that the first of these questions is not whether
STRAUDER v. WEST VIRGINIA. 513
a colored man, when an indictment has been preferred against him,
has a right to a grand or a petit jury composed in whole or in part
of persons of his own race or color, but it is whether, in the com-
position or selection of jurors by whom he is to be indicted or
tried, all persons of his race or color may be excluded by law, solely
because of their race or color, so that by no possibility can any
colored man sit upon the jury. . . .
This [the Fourteenth Amendment] is one of a series of constitu-
tional provisions having a common purpose; namely, securing to
a race recently emancipated, a race that through many generations
had been held in slavery, all the civil rights that the superior race
enjoy. The true spirit and meaning of the amendments, as we
said in the Slaughter-House Cases (16 Wall., 36), cannot be under-
stood without keeping in view the history of the times when they
were adopted, and the general objects they plainly sought to accom-
plish. At the time when they were incorporated into the Consti-
tution, it required little knowledge of human nature to anticipate
that those who had long been regarded as an inferior and subject
race would, when suddenly raised to the rank of citizenship, be
looked upon with jealousy and positive dislike, and that State laws
might be enacted or enforced to perpetuate the distinctions that
had before existed. Discriminations against them had been' habit-
ual. It was well known that in some States laws making such
discriminations then existed, and others might well be expected.
The colored race, as a race, was abject and ignorant, and in that
condition was unfitted to command the respect of those who had
superior intelligence. Their training had left them mere children,
and as such they needed the protection which a wise government
extends to those who are unable to protect themselves. They
especially needed protection against unfriendly action in the States
where they were resident. It was in view of these considerations
the Fourteenth Amendment was framed and adopted. It was
designed to assure to the colored race the enjoyment of all the
civil rights that under the law are enjoyed by white persons, and
to give to that race the protection of the general government, in
that enjoyment, whenever *it should be denied by the States. It
not only gave citizenship and the privileges of citizenship to persons
of color, but it denied to any State the power to withhold f rom them
the equal protection of the laws, and authorized Congress to en-
force its provisions by appropriate legislation. . . . [Here
follow citations from the Slaughter-House Cases, 16 Wallace, 36].
If this is the spirit and meaning of the amendment, whether it
514 CASES ON CONSTITUTIONAL LAW.
means more or not, it is to be construed liberally, to carry out the
purposes of its framers. It ordains that no State shall make or
enforce any laws which shall abridge the privileges or immunities
of citizens of the United States (evidently referring to the newly
made citizens, who, being citizens of the United States, are declared
to be also citizens of the State in which they reside). It ordains
that no State shall deprive any person of life, liberty, or property,
without due process of law, or deny to any person within its juris-
diction the equal protection of the laws. What is this but declar-
ing that the law in the States shall be the same for the black as
for the white; that all persons, whether colored or white, shall
stand equal before the laws of the States, and, in regard to the
colored race, for whose protection the amendment was primarily
designed, that no discrimination shall be made against them by
law because of their color? The words of the amendment, it is
true, are prohibitory, but they contain a necessary implication of
a positive immunity, or right, most valuable to the colored race,
the right to exemption from unfriendly legislation against them
distinctively as colored, exemption from legal discriminations,
implying inferiority in civil society, lessening the security of their
enjoyment of the rights which others enjoy, and discriminations
which are steps towards reducing them to the condition of a subject
race.
That the West Virginia statute respecting juries the statute
that controlled the selection of the grand and petit jury in the case
of the plaintiff in error is such a discrimination ought not to be
doubted. Nor would it be if the persons excluded by it were white
men. If in those States where the colored people constitute a
majority of the entire population a law should be enacted excluding
all white men from jury service, thus denying to them the privilege
of participating equally with the blacks in the administration of
justice, we apprehend no one would be heard to claim that it would
not be a denial to white men of the equal protection of the laws.
Nor if a law should be passed excluding all naturalized Celtic
Irishmen, would there be any doubt of its inconsistency with the
spirit of the amendment. The very fact that colored people are
singled out and expressly denied by a statute all right to participate
in the administration of the law, as jurors, because of their color,
though they are citizens, and may be in other respects fully quali-
fied, is practically a brand upon them, affixed by the law, an asser-
tion of their inferiority, and a stimulant to that race prejudice
STRAUDER v. WEST VIRGINIA. 515
which is an impediment to securing to individuals of the race that
equal justice which the law aims to secure to all others.
The right to a trial by jury is guaranteed to every citizen of
West Virginia by the Constitution of that State, and the constitu-
tion of juries is a very essential part of the protection such a mode
of trial is intended to secure. The very idea of a jury is a body
of men composed of the peers or equals of the person whose rights
it is selected or summoned to determine; that is, of his neighbors,
fellows, associates, persons having the same legal status in society
as that which he holds. Blackstone, in his Commentaries, says,
"The right of trial by jury, or the country, is a trial by the peers
of every Englishman, and is the grand bulwark of his liberties, and
is secured to him by the Great Charter." It is also guarded by
statutory enactments intended to make impossible what Mr. Ben-
tham called "packing juries." It is well known that prejudices
often exist against particular classes in the community, which sway
the judgment of jurors, and which, therefore, operate in some cases
to deny to persons of those classes the full enjoyment of that pro-
tection which others enjoy. Prejudice in a local community is held
to be a reason for a change of venue. The framers of the con-
stitutional amendment must have known full well the existence
of such prejudice and its likelihood to continue against the manu-
mitted slaves and their race, and that knowledge was doubtless a
motive that led to the amendment. By their manumission and
citizenship the colored race became entitled to the equal protection
of the laws of the States in which they resided; and the apprehen-
sion that through prejudice they might be denied that equal pro-
tection, that is, that there might be discrimination against them,
was the inducement to bestow upon the national government the
power to enforce the provision that no State shall deny to them
the equal protection of the laws. Without the apprehended exist-
ence of prejudice that portion of the amendment would have been
unnecessary, and it might have been left to the States to extend
equality of protection.
In view of these considerations, it is hard to see why the statute
of West Virginia should not be regarded as discriminating against
a colored man when he is put upon trial for an alleged criminal
offence against the State. It is not easy to comprehend how it
can be said that while every white man is entitled to a trial by a
jury selected from persons of his own race or color, or, rather,
selected without discrimination against his color, and a negro is
not, the latter is equally protected by the law with the former. Is
516 CASES ON CONSTITUTIONAL LAW.
not protection of life and liberty against race or color prejudice a
right, a legal right, under the constitutional amendment? And how
can it be maintained that compelling a colored man to submit to a
trial for his life by a jury drawn from a panel from which the State
has expressly excluded every man of his race, because of color alone,
however well qualified in other respects, is not a denial to him of
equal legal protection?
We do not say that within the limits from which it is not ex-
cluded by the amendment, a State may not prescribe the qualifi-
cations of its jurors, and in so doing make discriminations. It may
confine the selection to males, to freeholders, to citizens, to per-
sons within certain ages, or to persons having educational qualifi-
cations. We do not believe the Fourteenth Amendment was ever
intended to prohibit this. Looking at its history, it is clear it
had no such purpose. Its aim was against discrimination because
of race or color. As we have said more than once, its design was
to protect an emancipated race, and to strike down all possible
legal discriminations against those who belong to it. To quote
further from 16 Wall., supra: "In giving construction to any of
these articles [amendments], it is necessary to keep the main
purpose steadily in view." "It is so clearly a provision for that
race and that emergency, that a strong case would be necessary for
its application to any other." We are now called upon to affirm
or deny that it had other purposes.
The Fourteenth Amendment makes no attempt to enumerate
the rights it designed to protect. It speaks in general terms, and
those are as comprehensive as possible. Its language is prohibitory;
but every prohibition implies the existence of rights and immuni-
ties, prominent among which is an immunity from inequality of
legal protection, either for life, liberty, or property. Any State
action that denies this immunity to a colored man is in conflict
with the Constitution.
Concluding, therefore, that the statute of West Virginia, dis-
criminating in the selection of jurors, as it does, against negroes
because of their color, amounts to a denial of the equal protection
of the laws to a colored man when he is put upon trial for an
alleged offense against the State, it remains only to be con-
sidered whether the power of Congress to enforce the provisions of
the Fourteenth Amendment by appropriate legislation is sufficient
to justify, the enactment of sect. 641 of the Eevised Statutes.
A right or an immunity, whether created by the Constitution
or only guaranteed by it, even without any express delegation of
STRAUDER v. WEST VIRGINIA. 517
power, may be protected by Congress. Prigg v. The Common-
wealth of Pennsylvania, 16 Pet., 539. So in United States v.
Eeese (92 U. S., 214) it was said by the Chief Justice of this court:
"Rights and immunities created by or dependent upon the Consti-
tution of the United States can be protected by Congress. The
form and manner of the protection may be such as Congress in
the legitimate exercise of its legislative discretion shall provide.
These may be varied to meet the necessities of the particular right
to be protected." But there is express authority to protect the
rights and immunities referred to in the Fourteenth Amendment,
and to enforce observance of them by appropriate congressional
legislation. And one very efficient and appropriate mode of extend-
ing such protection and securing to a party the enjoyment of the
right or immunity, is a law providing for the removal of his case
from a State court, in which the right is denied by the State
law, into a Federal court, where it will be upheld. This is an
ordinary mode of protecting rights and immunities conferred by
the Federal Constitution and laws. Sec. 641 is such a provision.
, . . This act puts in the form of a statute what had been
substantially ordained by the constitutional amendment. It was
a step toward enforcing the constitutional provisions. Sec. 6-11
was an advanced step, fully warranted, we think, by the fifth
section of the Fourteenth Amendment.
We have heretofore considered and affirmed the constitutional
power of Congress to authorize the removal from State courts into
the circuit courts of the United States, before trial, of criminal
prosecutions for alleged offenses against the laws of the State,
when the defense presents a Federal question, or when a right
under the Federal Constitution or laws is involved. Tennessee v.
Davis, supra, p. 257. It is unnecessary now to repeat what we
there said.
That the petition of the plaintiff in error, filed by him in the
State court before the trial of his case, made a case for removal
into the Federal Circuit Court, under sect. 641, is very plain, if,
by the constitutional amendment and sect. 1977 of the Revised
Statutes, he was entitled to immunity from discrimination against
him in the selection of jurors, because of their color, as we have
endeavored to show that he was. It set forth sufficient facts to ex-
hibit a denial of that immunity, and a denial by the statute law of
the State.
There was error, therefore, in proceeding to the trial of the in-
dictment against him after his petition was filed, as also in over-
518 CASES ON CONSTITUTIONAL LAW.
ruling his challenge to the array of the jury, and in refusing to
quash the panel.
The judgment of the Supreme Court of West Virginia will be
reversed, and the case remitted with instructions to reverse the
judgment of the Circuit Court of Ohio County; and it is
So ordered
[JUSTICE FIELD and JUSTICE CLIFFORD dissented.]
CIVIL EIGHTS CASES.
UNITED STATES v. STANLEY. UNITED STATES v.
KYAN. UNITED STATES v. NICHOLS. UNITED
STATES v. SINGLETON. EOBINSON AND
WIFE T. MEMPHIS AND CHAELESTON
EAILEOAD COMPANY.
109 U. S., 3. Decided 1883.
These cases are all founded on the first and second sections of
the Act of Congress, known as the Civil Eights Act, passed March
1st, 1875, entitled "An Act to protect all citizens in their civil and
legal rights." 18 Stat., 335. Two of the cases, those against
Stanley and Nichols, were indictments for denying to persons of
color the accommodations and privileges of an inn or hotel; two
of them, those against Eyan and Singleton, were, one an informa-
tion, the other an indictment, for denying to individuals the privi-
leges and accommodations of a theater, the information against
Eyan being for refusing a colored person a seat in the dress circle
of Maguire's theatre in- San Francisco; and the indictment against
Singleton was for denying to another person, whose color was not
stated, the full enjoyment of the accommodations of the theatre
known as the Grand Opera House in New York, "said denial not
being made for any reasons by law applicable to citizens of every
race and color, and regardless of any previous condition of servi-
tude." The case of Eobinson and wife against the Memphis &
Charleston E. E. Company was an action brought in the Circuit
Court of the United States for the Western District of Tennessee,
to recover the penalty of five hundred dollars given by the second
section of the act; and the gravamen was the refusal by the con-
ductor of the railroad company to allow the wife to ride in the
ladies' car for the reason as stated in one of the counts, that she
was a person of African descent. The jury rendered a verdict for
CIVIL RIGHTS CASES. 519
the defendants in this case, upon the merits, under a charge of
the court to which a bill of exceptions was taken by the plaintiffs.
The case was tried on the assumption by both parties of the validity
of the act of Congress; and the principal point made by the ex-
ceptions was, that the judge allowed evidence to go to the jury
tending to show that the conductor had reason to suspect that the
plaintiff, the wife, was an improper person, because she was in
company with a young man whom he supposed to be a white man,
and on that account inferred that there was some improper con-
nection between them; and the judge charged the jury, in sub-
stance, that if this was the conductor's bona fide reason for exclud-
ing the woman from the car they might take it into consideration
on the question of the liability of the company. The case was
brought here by writ of error at the suit of the plaintiffs. The
cases of Stanley, Nichols, and Singleton, came up on certificates
of division of opinion between the judges below as to the consti-
tutionality of the first and second sections of the act referred to;
and the case of Ryan, on a writ of error to the judgment of the
Circuit Court for the District of California sustaining a demurrer
to the information.
The Stanley, Ryan, Nichols, and Singleton cases were sub-
mitted together, by the Solicitor-General at the last term of court,
on the 7th day of November, 1882. There were no appearances
and no briefs filed for the defendants.
The Robinson case was submitted on the briefs at the last term,
on the 29th day of March, 1883. ...
MB. JUSTICE BRADLEY delivered the opinion of the court. After
stating the facts in the above language he continued:
It is obvious that the primary and important question in all the
cases is the constitutionality of the law: for if the law is unconsti-
tutional none of the prosecutions can stand.
The sections of the law referred to provide as follows:
"SEC. 1. That all persons within the jurisdiction of the United
States shall be entitled to the full and equal enjoyment of the ac-
commodations, advantages, facilities, and privileges of inns, public
conveyances on land or water, theatres, and other places of public
amusement; subject only to the conditions and limitations estab-
lished by law, and applicable alike to citizens of every race and
color, regardless of any previous condition of servitude.
"SEC. 2. That any person who shall violate the foregoing section
by denying to any citizen, except for reasons by law applicable to
citizens of every race and color, and regardless of any previous
520 CASES ON CONSTITUTIONAL LAW.
condition of servitude, the full enjoyment of any of the. accom-
modations, advantages, facilities, or privileges in said section enum-
erated, or. by aiding or inciting such denial, shall for every such
offense forfeit and pay the sum of five hundred dollars to the per-
son aggrieved thereby, to be recovered in an action of debt, with
full costs; and shall also, for every such offense, be deemed guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not
less than five hundred nor more than one thousand dollars, or shall
be imprisoned not less than thirty days nor more than one year:
Provided, That all persons may elect to sue for the penalty afore-
said, or to proceed under their rights at common law and by State
statutes; and having so elected to proceed in the one mode or the
other, their right to proceed in the other jurisdiction shall be
barred. But this provision shall not apply to criminal proceedings,
either under this Act or the criminal law of any State: And pro-
vided further, That a judgment for the penalty in favor of the party
aggrieved, or a judgment upon an indictment, shall be a bar to
either prosecution respectively."
Are these sections constitutional? The first section, which is
the principal one, cannot be fairly understood without attending
to the last clause, which qualifies the preceding part.
The essence of the law is, not to declare broadly that all per-
sons shall be entitled to the full and equal enjoyment of the ac-
commodations, advantages, facilities, and privileges of inns, public
conveyances, and theatres; but that such enjoyment shall not be
subject to any conditions applicable only to citizens of a particular
race or color, or who had been in a previous condition of servitude.
In other words, it is the purpose of the law to declare that, in the
enjoyment of the accommodations and privileges of inns, public
conveyances, theatres, and other places of public amusement, no
distinction shall be made between citizens of different race or color,
or between those who have, and those who have not, been slaves.
Its effect is to declare, that in all inns, public conveyances, and
places of amusement, colored citizens, whether formerly slaves or
not, and citizens of other races, shall have the same accommoda-
tions and privileges in all inns, public conveyances, and places of
amusement as are enjoyed by white citizens; and vice versa. The
second section makes it a penal offense in any person to deny to
any citizen of any race or color, regardless of previous servitude,
any of the accommodations or privileges mentioned in the first
section.
Has Congress constitutional power to make such a law? Of
course, no one will contend that the power to pass it was contained
in the Constitution before the adoption of the last three amend-
CIVIL RIGHTS CASES. 521
ments. The power is sought, first, in the Fourteenth Amendment,
and the views and arguments of distinguished Senators, advanced
whilst the law was under consideration, claiming authority to pass
it by virtue of that amendment, are the principal arguments ad-
duced in favor of the power. We have carefully considered those
arguments, as was due to the eminent ability of those who put
them forward, and have felt, in all its force, the weight of authority
which always invests a law that Congress deems itself competent
to pass. But the responsibility of an independent judgment is
now thrown upon this court; and we are bound to exercise it ac-
cording to the best lights we have.
The first section of the Fourteenth Amendment (which is the
one relied on), after declaring who shall be citizens of the United
States, and of the several States, is prohibitory in its character,
and prohibitory upon the States. It declares that:
"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 with-
out due process of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws."
It is State action of a particular character that is prohibited.
Individual invasion of individual rights is not the subject-matter
of the amendment. It has a deeper and broader scope. It nullifies
and makes void all State legislation, and State action of every
kind, which impairs the privileges and immunities of citizens of
the United States, or which injures them in life, liberty or property
without due process of law, or which denies to any of them the
equal protection of the laws. It not only does this, but, in order
that the national will, thus declared, may not be a mere brutum
fulmen, the last section of the amendment invests Congress with
power to enforce it by appropriate legislation. To enforce what?
To enforce the prohibition. To adopt appropriate legislation for
correcting, the effects of such prohibited State laws and State acts,
and thus to render them effectually null, void, and innocuous.
This is the legislative power conferred upon Congress, and this is
the whole of it. It does not invest Congress with power to legislate
upon subjects which are within the domain of State legislation;
but to provide modes of relief against State legislation, or State
action, of the kind referred to. It does not authorize Congress to
create a code of municipal law for the regulation of private rights;
but to provide modes of redress against the operation of State laws,
and the action of State officers executive or judicial, when these
are subversive of the fundamental rights specified in the amend-
522 CASES ON CONSTITUTIONAL LAW.
ment. Positive rights and privileges are undoubtedly secured by
the Fourteenth Amendment; but they are secured by way of pro-
hibition against State laws and State proceedings affecting those
rights and privileges, and by power given to Congress to legislate
for the purpose of carrying such prohibition into effect: and such
legislation must necessarily be predicated upon such supposed
State laws or State proceedings, and be directed to the correction
of their operation and effect. A quite full discussion of this aspect
of the amendment may be found in United States v. Cruikshank,
92 U. S., 542; Virginia v. Eives, 100 U. S., 313; and Ex parte
Virginia, 100 U. S., 339.
An apt illustration of this distinction may be found in some of
fthe provisions of the original Constitution. Take the subject of
contracts, for example. The Constitution prohibited the States
from passing any law impairing the obligation of contracts. This
did not give to Congress power to provide laws for the general
enforcement of con-tracts; nor power to invest the courts of the
United States with jurisdiction over contracts, so as to enable
parties to sue upon them in those courts. It did, however, give the
power to provide remedies by which the impairment of contracts
by State legislation might be counteracted and corrected: and
this power was exercised. The remedy which Congress actually
provided was that contained in the 25th section of the Judiciary
Act of 1789, 1 Stat., 85, giving to the Supreme Court of the United
States jurisdiction by writ of error to review the final decisions of
State courts whenever they should sustain the validity of a State
statute or authority alleged to be repugnant to the Constitution or
laws of the United States. By this means, if a State law was passed
impairing the obligation of a contract, and the State tribunals sus-
tained the validity of the law, the mischief could be corrected in
this court. The legislation of Congress, and the proceedings pro-
vided for under it, were corrective in their character. No attempt
was made to draw into the United States courts the litigation of
contracts generally; and no such attempt would have been sus-
tained. We do not say that the remedy provided was the only one
that might have been provided in that case. Probably Congress
had power to pass a law giving to the courts of the United States
direct jurisdiction over contracts alleged to be impaired by a State
law; and under the broad provisions of the act of March 3d, 1875,
ch. 137, 18 Stat., 470, giving to the circuit courts jurisdiction of
all cases arising under the Constitution and laws of the United
States, it is possible that such jurisdiction now exists. But under
that, or any othe^ law, it must appear as well by allegation, as
CIVIL RIGHTS CASES. 523
proof at the trial, that the Constitution had been violated by the
action of the State legislature. Some obnoxious State law passed,
or that might be passed, is necessary to be assumed in order to lay
the foundation of any federal remedy in the case; and for the
very sufficient reason, that the constitutional prohibition is against
State laws impairing the obligation of contracts.
And so liL.the present case, until some State law has been
passed, or some State action through its officers OT agents has been
taken, adverse to the rights of citizens sought to be protected by
the Fourteenth Amendment, no legislation of the United States
under said amendment nor any proceeding under such legislation,
can -b&-ea44*d into activity: for the prohibitions-of the amendment
are against State laws and acts done- under State authority. -Of
course, legislation may, and should be, provided- in- advance to
meet the exigency when it arises; but it_sho.uld be-adapted'to the
mischief and wrong which the amendment was intended to pro-
vide against; and that is, S>tate laws, or State action of some kind,
adverse to the rights of the citizen secured by the amendment.
Such legislation cannot properly cover the whole domain of rights
appertaining to life, liberty and property, defining them and pro-
viding for their vindication. That would be to establish a code of
municipal law regulative of all private rights between man and
man in society. It would be to make Congress take the place of \
the State legislatures and to supersede them. It is absurd to affirm |
that, because the rights of life, liberty and property (which include
all civil rights that men have), are by the amendment sought to (
be protected against invasion on the part of the State without due
process of law, Congress may therefore provide due process of law
for their vindication in every case; and that, because the denial
by a State to any persons, of the equal protection of the laws, is\
prohibited by the amendment, therefore Congress may establish j
laws for their equal protection. In fine, the legislation which Con-
gress is authorized to adopt in (this behalf is not general legislation 1
upon the rights of the citizen, but corrective legislation, that is,
such as may be necessary and proper for counteracting such laws
as the States may adopt or enforce, and which, by the amendment,
they are prohibited from making or enforcing, or such acts and
proceedings as the States may commit or take, and which, by the
amendment, they are prohibited from committing or taking. It is
not necessary for us to state, if we could, what legislation would
be proper for Congress to adopt. It is sufficient for us to examine
whether the law in question is of that character.
An inspection of the law shows that it makes no reference what-
524 CASES ON CONSTITUTIONAL LAW.
ever to any supposed or apprehended violation of the Fourteenth
Amendment on the part of the States. It is not predicated on any
such view. It proceeds ex directo to declare that certain acts com-
mitted by individuals shall be deemed offenses, and shall be prose-
cuted and punished by proceedings in the courts of the United
States. It does not profess to be corrective of any constitutional
wrong committed by the States; it does not make its operation to
depend upon any such wrong committed. It applies equally to
cases arising in States which have the justest laws respecting the
personal rights of citizens, and whose authorities are ever ready to
enforce such laws, as to those which arise in States that may have
violated the prohibition of the amendment. In other words, it
steps into the domain of local jurisprudence, and lays down rules
for the conduct of individuals in society towards each other, and
imposes sanctions for the enforcement of those rules, without refer-
ring in any manner to any supposed action of the State or its
authorities.
If this legislation is appropriate for enforcing the prohibitions
of the amendment, it is difficult to see where it is to stop. Why
may not Congress with equal show of authority enact a code of
laws for the enforcement and vindication of all rights of life, lib-
erty, and property? If it is supposable that the States may deprive
persons of life, liberty, and property without due process of law
(and the amendment itself does not suppose this), why should not
Congress proceed at once to prescribe due process of law for the
protection of every one of these fundamental rights, in every possi-
ble case, as well as to prescribe equal privileges in inns, public
conveyances, and theatres? The truth is, that the implication of a
power to legislate in this manner is based upon the assumption-
that if the States are forbidden to legislate or act in a particular
way on a particular subject, and power is conferred upon Congress
to enforce the prohibition, this gives Congress power to legislate
generally upon that subject, and not merely power to provide
modes of redress against such State legislation or action. The
assumption is certainly unsound. It is repugnant to the Tenth
Amendment of the Constitution, which declares that powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively or to the
people.
We have not overlooked the fact that the fourth section of the
act now under consideration has been held by this court to be
constitutional. That section declares "that no citizen, possessing
all other qualifications which are or may be prescribed by law,
CIVIL RIGHTS CASES. 525
shall be disqualified for service as grand or petit juror in any court
of the United States, or of any State, on account of race, color, or
previous condition of servitude; and any officer or other person
charged with any duty in the selection or summoning of jurors
who shall exclude or fail to summon any citizen for the cause
aforesaid, shall, on conviction thereof, be deemed guilty of a mis-
demeanor, and be fined not more than five thousand dollars." In
Ex parte Virginia, 100 U. S., 339, it was held that an indictment
against a State officer under this section for excluding persons of
color from the jury list is sustainable. But a moment's attention
to its terms will show that the section is entirely corrective in its
character. Disqualifications for service on juries are only created
by the law, and the first part of the section is aimed at certain dis-
qualifying laws, namely, those which make mere race or color a
disqualification; and the second 'clause is directed against those
who, assuming to use the authority of the State government, carry
into effect such a rule of disqualification. In the Virginia case,
the State, through its officer, enforced a rule of disqualification
which the law was intended to abrogate and counteract. Whether
the statute-book of the Sta/te actually laid down any such rule of
disqualification, or not, the State, through its officer, enforced such
a rule: and it is against such State action, through its officers and
agents, that the last clause of the section is directed. This aspect
of the law was deemed sufficient to divest it of any unconstitu-
tional character, and makes it differ widely from the first and sec-
ond sections of the same act which we are now considering.
These sections, in the objectionable features before referred to,
are different also from the law ordinarily called the "Civil Eights
Bill," originally passed April 9th, 1866/ 14 Stat., 27, ch. 31, and
re-enacted with some modifications in sections 16, 17, and 18, of
the Enforcement Act, passed May 31st, 1870, 16 Stat., 140, ch.
114. That law, as re-enacted, after declaring that all persons with-
in the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue,
be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses and exactions, of every kind, and
none other, any law, statute, ordinance, regulation or custom to
the contrary notwithstanding, proceeds to enact, that any person
who, under color of any law, statute, ordinance, regulation, or cus-
tom, shall subject, or cause to be subjected, any inhabitant of any
State or Territory to the deprivation of any rights secured or pro-
526 CASES ON CONSTITUTIONAL LAW.
tected by the preceding section (above quoted), or to different
punishment, pains, or penalties, on account of such person being
an alien, or by reason of his color or race, than is prescribed for
the punishment of citizens, shall be deemed guilty of a misde-
meanor, and subject to fine and imprisonment as specified in the
act. This law is clearly corrective in its character, intended to
counteract and furnish redress against State laws and proceedings,
and customs having the force of law, which sanction the wrongful
acts specified. In the Revised Statutes, it is true, a very important
clause, to wit, the words "any law, statute, ordinance, regulation or
custom to the contrary notwithstanding," which gave the de-
claratory section its point and effect, are omitted; but the penal
part, by which the declaration is enforced, and which is really the
effective part of the law, retains the reference to State laws, by
making the penalty apply only t6 those who should subject parties
to a deprivation of their rights under color of any statute, ordi-
nance, custom, etc., of any State or Territory: thus preserving the
corrective character of the legislation. Rev. St., 1977, 1978,
1979, 5510. The Civil Rights Bill here referred to is analogous
in its character to what a law would have been under the original
Constitution, declaring that the validity of contracts should not
be impaired, and that if any person bound by a contract should
refuse to comply with it, under color or pretence that it had been
rendered void or invalid by a State law, he should be liable to an
action upon it in the courts of the United States, with the addi-
tion of a penalty for setting up such an unjust and unconstitutional
defense.
In this connection it is proper to state that civil rights, such as
are guaranteed by the Constitution against State aggression, can-
not be impaired by the wrongful acts of individuals, unsupported
by State authority in the shape of laws, customs, or judicial or
executive proceedings. The wrongful act of an individual, un-
supported by any such authority, is simply a private wrong, or a
crime of that individual; an invasion of the rights of the injured
party, it is true, whether they affect his person, his property, or his
reputation; but if not sanctioned in some way by the State, or not
done under State authority, his rights remain in full force, and
may presumably be vindicated by resort to the laws of the State
for redress. An individual cannot deprive a man of his right to
vote, to hold property, to buy and sell, to sue in the courts, or to be
a witness or a juror; he may, by force or fraud, interfere with the
enjoyment of the right in a particular case; he may commit an
assault against the person, or commit murder, or use ruffian vio-
CIVIL RIGHTS CASES. 527
lence at the polls, or slander the good name of a fellow-citizen;
but, unless protected in these wrongful acts by some shield of State
law or State authority, he cannot destroy or injure the right; he
will only render himself amenable to satisfaction or punishment;
and amenable therefor to the laws of the State where the wrong-
ful acts are committed. Hence, in all those cases where the Con-
stitution seeks to protect the rights of the citizen against dis-
criminative and unjust laws of the State by prohibiting such laws,
it is not individual offenses, but abrogation and denial of rights,
which it denounces, and for which it clothes the Congress with
power to provide a remedy. This abrogation and denial of rights,
for which the States alone were or could be responsible, was the
great seminal and fundamental wrong which was intended to be
remedied. And the remedy to be provided must necessarily be
predicated upon that wrong. It must assume that in the cases
provided for, the evil or wrong actually committed rests upon some
State law or State authority for its excuse and perpetration.
Of course, these remarks do not apply to those cases in which
Congress is clothed with direct and plenary powers of legislation
over the whole subject, accompanied with an express or implied
denial of such power to the States, as in the regulation of com-
merce with foreign nations, among the several States, and with
the Indian tribes, the coining of money, the establishment of post-
offices and post-roads, the declaring of war, etc. In these cases
Congress has power to pass laws for regulating the subjects specified
in every detail, and the conduct and transactions of individuals in
respect thereof. But where a subject is not submitted to the gen-
eral legislative power of Congress, but is only submitted thereto
for the purpose of rendering effective some prohibition against par-
ticular State legislation or State action in reference to that subject,
the power given is limited by its object, and any legislation by
Congress in the matter must necessarily be corrective in its char-
acter, adapted to counteract and redress the operation of such pro-
hibited State laws or / proceedings of State officers.
If the principles of interpretation which we have laid down are
correct, as we deem them to be (and they are in accord with the
principles laid down in the cases before referred to, as well as in
the recent case of United States v. Harris, 106 U. S., 629), it is
clear that the law in question cannot be sustained by any grant of
legislative power made to Congress by the Fourteenth Amendment.
That amendment prohibits the States from denying to any person
the equal protection of the laws, and declares that Congress shall
have power to enforce, by appropriate legislation, the provisions
528 CASES ON CONSTITUTIONAL LAW
of the amendment. The law in question, without any reference
to adverse State legislation on the subject, declares that all persons
shall be entitled to equal accommodations and privileges of inns,
public conveyances, and places of public amusement, and imposes a
penalty upon any individual who shall deny to any citizen such
equal accommodations and privileges. This is not corrective legis-
tion; it is primary and direct; it takes immediate and absolute pos-
session of the subject of the right of admission to inns, public con-
veyances, and places of amusement. It supersedes and displaces
State legislation on the same subject, or only allows it permissive
force. It ignores such legislation, and assumes that the matter is
one that belongs to the domain of national regulation. Whether
it would not have been a more effective protection of the rights of
citizens to have clothed Congress with plenary power over the
whole subject, is not now the question. What we have to decide
is, whether such plenary power has been conferred upon Congress
by the Fourteenth Amendment; and, in our judgment, it has not.
We have discussed the question presented by the law on the
assumption that a right to enjoy equal accommodation and privi-
leges in all inns, public conveyances, and places of public amuse-
ment, is one of the essential rights of the citizen which no State
can abridge or interfere with. Whether it is such a right, or not,
is a different question which, in the view we have taken of the
validity of the law on the ground already stated, it is not necessary
to examine.
We have also discussed the validity of the law in reference to
cases arising in the States only; and not in reference to cases
arising in the Territories or the District of Columbia, which are
subject to the plenary legislation of Congress in every branch of
municipal regulation. Whether the law would be a valid one as
applied to the Territories and the District is not a question for
consideration in the cases before us: they all being cases arising
within the limits of States. And whether Congress, in the exer-
cise of its power to regulate commerce amongst the several States,
might or might not pass a law regulating rights in public convey-
ances passing from one State to another, is also a question which is
not now before us, as the sections in question are not conceived in
any such view.
But the power of Congress to adopt direct and primary, as dis-
tinguished from corrective legislation, on the subject in hand, is
sought, in the second place, from the Thirteenth Amendment,
which abolishes slavery. This amendment declares "that neither
slavery, nor involuntary servitude, except as a punishment for
CIVIL RIGHTS CASES. 529
crime, whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction;"
and it gives Congress power to enforce the amendment by appro-
priate legislation.
This amendment, as well as the Fourteenth, is undoubtedly
self-executing without any ancillary legislation, so far as its terms
are applicable to any existing state of circumstances. By its own
unaided force and effect it abolished slavery, and established uni-
versal freedom. Still, legislation may be necessary and proper to
meet all the various cases and circumstances to be affected by it,
and to prescribe proper modes of redress for its violation in letter
or spirit. And such legislation may be primary and direct in its
character; for the amendment is not a mere prohibition of State
laws establishing or upholding slavery, but an absolute declaration
that slavery or involuntary servitude shall not exist in any part of
the United States.
It is true that slavery cannot exist without law, any more than
property in lands and goods can exist without law: and, therefore,
the Thirteenth Amendment may be regarded as nullifying all State
laws which establish or uphold slavery. But it has a reflex char-
acter also, establishing and decreeing universal civil and political
freedom throughout the United States; and it is assumed, that the
power vested in Congress to enforce the article by appropriate leg-
islation, clothes Congress with power to pass all laws necessary
and proper for abolishing all badges and incidents of slavery in the
United States: and upon this assumption it is claimed, that this
is sufficient authority, for declaring by law that all persons shall
have equal accommodations and privileges in all inns, public con-
veyances, and places of amusement; the argument being, that the
denial of such equal accommodations and privileges is, in itself, a
subjection to a species of servitude within the meaning of the
amendment. Conceding the major proposition to be true, that
Congress has a right to enact all necessary and proper laws for the
obliteration and prevention of slavery with all its badges and inci-
dents, is the minor proposition also true, that the denial to any
person of admission to the accommodations and privileges of an
inn, a public conveyance, or a theatre, does subject that person to
any form of servitude, or tend to fasten upon him any badge of
slavery? If it does not, then power to pass the law is not found in
the Thirteenth Amendment.
In a very able and learned presentation of the cognate question
as to the extent of the rights, privileges and immunities of citizens
which cannot rightfully be abridged by State laws under the Four-
Si
530 CASES ON CONSTITUTIONAL LAW.
teenth Amendment, made in a former case, a long list of burdens
and disabilities of a servile character, incidental to feudal vassalage
in France, and which were abolished by the decrees of the National
Assembly, was presented for the purpose of showing that all ine-
qualities and observances exacted by one man from another were
servitudes, or badges of slavery, which a great nation, in its effort
to establish universal liberty, made haste to wipe out and destroy.
But these were servitudes imposed by the old law, or by long cus-
tom, which had the force of law, and exacted by one man from
another without the latter's consent. Should any such servitudes
be imposed by a State law, there can be no doubt that the law
would be repugnant to the Fourteenth, no less than to the Thir-
teenth Amendment; nor any greater doubt that Congress has ade-
quate power to forbid any such servitude from being exacted.
But is there any similarity between such servitudes and a denial
by the owner of an inn, a public conveyance, or a theatre, of its
accommodations and privileges to an individual, even though the
denial be founded on the race or color of that individual? Where
does any slavery or servitude, or badge of either, arise from such
an act of denial? Whether it might not be a denial of a right
which, if sanctioned by the Stale law, would be obnoxious to the
prohibitions of the Fourteenth Amendment, is another question.
But what has it to do with the question of slavery?
It may be that by the Black Code (as it was called), in the times
when slavery prevailed, the proprietors of inns and public convey-
ances were forbidden to receive persons of the African race, be-
cause it might assist slaves to escape from the control of their mas-
ters. This was merely a means of preventing such escapes, and
was no part of the servitude itself. A law of that kind could not
have any such object now, however justly it might be deemed an
invasion of the party's legal right as a citizen, and amenable to the
prohibitions of the Fourteenth Amendment.
The long existence of African slavery in this country gave us
very distinct notions of what it was, and what were its necessary
incidents. Compulsory service of the slave for the benefit of the
master, restraint of his movements except by the master's will, dis-
ability to hold property, to make contracts, to have a standing in
court, to be a witness against a white person, and such like burdens
and incapacities, were the inseparable incidents of the institution.
Severer punishments for crimes were imposed on the slave than on
free persons guilty of the same offenses. Congress, as we have
seen, by the Civil Eights Bill of 1866, passed in view of the Thir-
teenth Amendment, before the Fourteenth was adopted, under-
CIVIL RIGHTS CASES. 531
took to wipe out these burdens and disabilities, the necessary inci-
dents of slavery, constituting its substance and visible form; and
to secure to all citizens of every race and color, and without regard
to previous servitude, those fundamental rights which are the
essence of civil freedom, namely, the s'ame right to make and en-
force contracts, to sue, be parties, give evidence, and to inherit,
purchase, lease, sell and convey property, as is enjoyed by white
citizens. Whether this legislation was fully authorized by the
Thirteenth Amendment alone, without the support which it after-
ward received from the Fourteenth Amendment, after the adoption
of which it was re-enacted with some additions, it is not necessary
to inquire. It is referred to for the purpose of showing that at
that time (in 1866) Congress did not assume, under the authority
given by the Thirteenth Amendment, to adjust what may be called
the social rights of men and races in the community; but only to
declare and vindicate those fundamental rights which appertain
to the essence of citizenship, and the enjoyment or deprivation of
which constitutes the essential distinction between freedom and
slavery.
We must not forget that the province and scope of the Thir-
teenth and Fourteenth Amendments are different; the former
simply abolished slavery: the latter prohibited the States from
abridging the privileges or immunities of citizens of the United
States; from depriving them of life, liberty, or property without
due process of law, and from denying to any the equal protection
of the laws. The amendments are different, and the powers of
Congress under them are different. What Congress has power to
do under one, it may not have power to do under the other. Under
the Thirteenth Amendment, it has only to do with slavery and its
incidents. Under the Fourteenth Amendment, it has power to
counteract and render nugatory all State laws and proceedings
which have the effect to abridge any of the privileges or immuni-
ties of citizens of the United States, or to deprive them of life,
liberty or property without due process of law, or to deny to any
of them the equal protection of the laws. Under the Thirteenth
Amendment, the legislation, so far as necessary or proper to erad-
icate all forms and incidents of slavery and involuntary servitude,
may be direct and primary, operating upon the acts of individuals,
whether sanctioned by State legislation or not; under the Four-
teenth, as we have already shown, it must necessarily be, and can
only be, corrective in its character, addressed to counteract and
afford relief against State regulations or proceedings.
The only question under the present head, therefore, is, whether
532 CASES ON CONSTITUTIONAL LAW.
the refusal to any persons of the accommodations of an inn, or a
public conveyance, or a place of public amusement, by an individ-
ual, and without any sanction or support from any State law or
regulation, does inflict upon such persons any manner of servitude,
or form of slavery, as those -terms are understood in this country?
Many wrongs may be obnoxious to the prohibitions of the Four-
teenth Amendment which are not, in any just sense, incidents or
elements of slavery. Such, for example, would be the taking of
private property without due process of law; or allowing persons
who have committed certain crimes (horse-stealing, for example)
to be seized and hung by the posse comitatus without regular trial;
or denying to any person, or class of persons, the right to pursue
any peaceful avocations allowed to others. What is called class
legislation would belong to this category, and would be obnoxious
to the prohibitions of the Fourteenth Amendment, but would not
necessarily be so to the Thirteenth, when not involving the idea
of any subjection of one man to another. The Thirteenth Amend-
ment has respect, not to distinctions of race, or class, or color, but
to slavery. The Fourteenth Amendment extends its protection to
races and classes, and prohibits any State legislation which has
the effect of denying to any race or class, or to any individual, the
equal protection of the laws.
Now, conceding, for the sake of the argument, that the admis-
sion to an inn, a public conveyance, or a place of public amuse-
ment, on equal terms with all other citizens, is the right of every
man and all classes of men, is it any more than one of those rights
which the States by the Fourteenth Amendment are forbidden to
deny to any person? And is the Constitution violated until the
denial of the right has some State sanction or authority? Can the
act of a mere individual, the owner of the inn, the public convey-
ance or place of amusement, refusing the accommodation, be justly
regarded as imposing any badge of slavery or servitude upon the
applicant, or only as inflicting an ordinary civil injury, properly
cognizable by the laws of the State, and presumably subject to
redress by those laws until the contrary appears?
After giving to these questions all the consideration which
their importance demands, we are forced to the conclusion that
such an act of refusal has nothing to do with slavery or involun-
tary servitude, and that if it is violative of any right of the party,
his redress is to be sought under the laws of the State; or if those
laws are adverse to his rights and do not protect him, his remedy
will be found in the corrective legislation which Congress has
adopted, or may adopt, for counteracting the effect of State laws, or
CIVIL RIGHTS CASES. 533
State action, prohibited by the Fourteenth Amendment. It would
be running the slavery argument into the ground to make it apply
to every act of discrimination which a person may see fit to make
as to the guests he will entertain, or as to the people he will take
into his coach or cab or car, or admit to his concert or theatre, or
deal with in other matters of intercourse or business. Innkeepers
and public carriers, by the laws of all the States, so far as we are
aware, are bound, to the extent of their facilities, to furnish proper
accommodations to all unobjectionable persons who in good faith
apply for them. If the laws themselves make any unjust discrim-
ination, amenable to the prohibitions of the Fourteenth Amend-
ment, Congress has full power to accord a remedy under that
amendment and in accordance with it.
When a man has emerged from slavery, and by the aid of benefi-
cent legislation has shaken off the inseparable concomitants of that
state, there must be some stage in the progress of his elevation when
he takes the rank of a mere citizen, and ceases to be the special
favorite of the laws, and when his rights as a citizen, or a man, are
to be protected in the ordinary modes by which other men's rights
are protected. There were thousands of free colored people in this
country before the abolition of slavery, enjoying all the essential
rights of life, liberty and property the same as white citizens; yet
no one, at that time, thought that it was any invasion of his per-
sonal status as a freeman because he was not admitted to all the
privileges enjoyed by white citizens, or because he was subjected to
discriminations in the enjoyment of accommodations in inns, pub-
lic conveyances and places of amusement. Mere discriminations
on account of race or color were not regarded as badges of slavery.
If, since that time, the enjoyment of equal rights in all these re-
spects has become established by constitutional enactment, it is
not by force of the Thirteenth Amendment (which merely abolishes
slavery), but by force of the Thirteenth [Fourteenth?] and Fif-
teenth Amendments.
On the whole, we are of opinion, that no countenance of au-
thority for the passage of the law in question can be found in either
the Thirteenth or Fourteenth Amendments of the Constitution;
and no other ground of authority for its passage being suggested,
it must necessarily be declared void, at least so far as its operation
in the several States is concerned.
This conclusion disposes of the cases now under consideration.
In the cases of the United States v. Michael Ryan, and of Richard
A. Robinson and Wife v. The Memphis & Charleston Railroad
Company, the judgments must be affirmed. In the other cases,
534 CASES ON CONSTITUTIONAL LAW.
the answer to be given will be that the first and second sections
of the act of Congress of March 1st, 1875, entitled "An Act to
protect all citizens in their civil and legal rights," are unconstitu-
tional and void, and that judgment should be rendered upon the
several indictments in those cases accordingly.
And it is so ordered-
[MR. JUSTICE HARLAN delivered a dissenting opinion.]
HURTADO v. CALIFORNIA.
110 U. S., 516. Decided 1884.
The Constitution of the State of California, adopted in 1879,
in Article I, section 8, provides as follows:
"Offences heretofore required to be prosecuted by indictment
shall be prosecuted by information, after examination and com-
mitment by a magistrate, or by indictment without such examina-
tion and commitment as may be prescribed by law. A grand jury
shall be summoned at least once a year in each county/' . . .
[Hurtado, having been charged with murder by an information
filed with the District Attorney, was tried by jury, convicted, and
sentenced to be hanged. Thereupon he filed certain objections to
the execution of the sentence, one of which recited "that the said
plaintiff in error had been held to answer for the said crime of
murder by the district attorney of the said county of Sacramento,
upon an information filed by him, and had been tried and illegally
found guilty of said crime, without any presentment or indictment
of any grand or other jury, and that the judgment rendered upon
the alleged verdict of the jury in such case was and is void, and if
executed would deprive the plaintiff in error of his life or liberty
without due process of law/']
MR. JUSTICE MATTHEWS delivered the opinion of the court.
After reciting the facts in the foregoing language, he continued:
It is claimed on behalf of the prisoner that the conviction and
sentence are void, on the ground that they are repugnant to that
clause of the Fourteenth Article of Amendment of the Constitution
of the United States which is in these words:
"Nor shall any State deprive any person of life, liberty, or
property without due process of law."
HURTADO v. CALIFORNIA. 535
The proposition of law we are asked to affirm is that an indict-
ment or presentment by a grand jury as known to the common law
of England, is essential to that "due process of law," when applied
to prosecutions for felonies, which is secured and guaranteed by
this provision of the Constitution of the United States, and which
accordingly it is forbidden to the States respectively to dispense
with in the administration of criminal law. . . . [Here follow
citations from Kalloch v. Superior Court, 56 Cal., 229, and Eowan
v. The State, 30 Wis., 129.]
On the other hand, it is maintained on behalf of the plaintiff in
error that the phrase "due process of law" is equivalent to "law of
the land/' as found in the 29th chapter of Magna Charta; that by
immemorial usage it has acquired a fixed, definite, and technical
meaning; that it refers to and includes, not only the general prin-
ciples of public liberty and private right, which lie at the founda-
tion of all free government, but the very institutions which, ven-
erable by time and custom, have been tried by experience and found
fit and necessary for the preservation of those principles, and which,
having been the birthright and inheritance of every English sub-
ject, crossed the Atlantic with the colonists and were transplanted
and established in the fundamental laws of the State; that, having
been originally introduced into the Constitution of the United
States as a limitation upon the powers of the government, brought
into being by that instrument, it has now been added as an addi-
tional security to the individual against oppression by the States
themselves; that one of these institutions is that of the grand jury,
an indictment or presentment by which against the accused in
cases of alleged felonies is an essential part of due process of law,
in order that he may not be harassed or destroyed by prosecutions
founded only upon private malice or popular fury.
This view is certainly supported by the authority of the great
name of Chief Justice Shaw and of the court in which he pre-
sided, which, in Jones v. Eobbins, 8 Gray, 329, decided that the
12th article of the Bill of Eights of Massachusetts, a transcript
of Magna Charta in this respect, made an indictment or present-
ment of a grand jury essential to the validity of a conviction
in cases of prosecutions for felonies. In delivering the opinion
of the court in that case, Merrick, J., alone dissenting, the Chief
Justice said:
"The right of individual citizens to be secure from an open and
public accusation of crime, and from the trouble, expense, and
anxiety of a public trial before a probable cause is established by
the presentment and indictment of a grand jury, in case of high
536 CASES ON CONSTITUTIONAL LAW.
offenses, is justly regarded as one of the securities to the inno-
cent against hasty, malicious, and oppressive public prosecutions,
and as one of the ancient immunities and privileges of English
liberty." . . . "It having been stated," he continued, "by
Lord Coke, that by the 'law of the land' was intended a due course
of proceeding according to the established rules and practice of
the courts of common law, it may, perhaps, be suggested that this
might include other modes of proceeding sanctioned by the com-
mon law, the most familiar of which are, by informations of dif-
ferent kinds, by the officers of the crown in the name of the
King. But, in reply to this, it may be said that Lord Coke himself
explains his own meaning by saying 'the law of the land,' as ex-
pressed in Magna Charta, was intended due process of law, that is,
by indictment or presentment of good and lawful men. And fur-
ther, it is stated on the authority of Blackstone, that informations
of every kind are confined by the constitutional law to misde-
meanors only. 4 Bl. Com., 310." . . .
This view of the meaning of Lord Coke is the one taken by
Merrick, J., in his dissenting opinion in Jones v. Bobbins, 8 Gray,
329, who states his conclusions in these words:
"It is the forensic trial, under a broad and general law, operat-
ing equally upon every member of our community, which the words
<by the law of the land/ in Magna Charta, and in every subsequent
declaration of rights which has borrowed its phraseology, make
essential to the safety of the citizen, securing thereby both his
liberty and his property, by preventing the unlawful arrest of
his person or any unlawful interference with his estate." See
also State v. Starling, 15 Eich. (S. C.) Law, 120.
Mr. Reeve, in 2 History of Eng. Law, 43, translates the phrase,
nisi'per legale judicium parium suorum velper legem terrcv.
"But by the judgment of his peers, or by some other legal process
or proceeding adapted by the law to the nature .of the case."
Chancelor Kent, 2 Com., 13, adopts this mode of construing
the phrase. Quoting the language of Magna Charta, and refer-
ring to Lord Coke's comment upon it, he says:
"The better and larger definition of due process of law is that
it means law in its regular course of administration through courts
of justice."
This accords with what is said in Westervelt v. Gregg, 12 N. Y.,
202, by Denio, J., p. 212:
"The provision was designed to protect the citizen against all
mere acts of power, whether flowing from the legislative or ex-
branches of the government."
HURTADO v. CALIFORNIA. 537
The principal and true meaning of the phrase has never been
more tersely or accurately stated than by Mr. Justice Johnson,
in Bank of Columbia v. Okely, 4 Wheat., 235-244:
"As to the words from Magna Charta, incorporated into the Con-*
stitution of Maryland, after volumes spoken and written with a
view to their exposition, the good sense of mankind has at last
settled down to this: that they were intended to secure the indi-
vidual from the arbitrary exercise of the powers of government,
unrestrained by the established principles of private right and
distributive justice."
And the conclusion rightly deduced is, as stated by Mr. Cooley,
Constitutional Limitations, 356:
"The principles, then, upon which the process is based, are to
determine whether it is 'due process' or not, and not any con-
siderations of mere form. Administrative and remedial process
may be changed from time to time, but only with due regard to
the landmarks established for the protection of the citizen."
It is urged upon us, however, in argument, that the claim made
in behalf of the plaintiff in error is supported by the decision of
this court in Murray's Lessee v. Hoboken Land & Improvement
Company, 18 How., 272. There Mr. Justice Curtis, delivering
the opinion of the court, after showing, p. 276, that due process
of law must mean something more than the actual existing law
of the land, for otherwise it would be no restraint upon legisla-
tive power, proceeds as follows:
"To what principle, then, are we to resort to ascertain whether
this process, enacted by Congress, is due process? To this the
answer must be twofold. We must examine the Constitution itself
to see whether this process be in conflict with any of its provisions.
If not found to be so, we must look to those settled usages and
modes of proceeding existing in the common and statute law of
England before the emigration of our ancestors, and which are
shown not to have been unsuited to their civil and political con-
dition by having been acted on by them after the settlement of
this country."
This, it is argued, furnishes an indispensable test of what consti-
tutes "due process of law;" that any proceeding otherwise author-
ized by law, which is not thus sanctioned by usage, or which super-
sedes and displaces one that is, cannot be regarded as due process
of law.
But this inference is unwarranted. The real syllabus of the pas-
sage quoted is, that a process of law, which is not otherwise for-
bidden, must be taken to be due process of law, if it can show the
538 CASES ON CONSTITUTIONAL LAW.
sanction of settled usage both in England and in this country; but
it by no means follows that nothing else can be due process of
law. The point in the case cited arose in reference to a summary
proceeding, questioned on that account, as not due process of law.
The answer was: however exceptional it may be, as tested by
definitions and principles of ordinary procedure, nevertheless, this,
in substance, has been immemorially the actual law of the land,
and, therefore, is due process of law. But to hold that such a
characteristic is essential to due process of law, would be to deny
every quality of the law but its age, and to render i; incapable
of progress or improvement. It would be to stamp upon our juris-
prudence the unchangeableness attributed to the laws of the Medes
and Persians.
This would be all the more singular and surprising, in this quick
and active age, when we consider that, owing to the progressive
development of legal ideas and institutions in England, the words
of Magna Charta stood for very different things at the time of the
separation of the American colonies from what they represented
originally. . . .
This flexibility and capacity for growth and adaptation is the
peculiar boast and excellence of the common law. Sir James
Mackintosh ascribes this principle of development to Magna
Charta itself. To use his own language:
"It was a peculiar advantage that the consequences of its prin-
ciples were, if we may so speak, only discovered slowly and grad-
ually. It gave out on each occasion only so much of the spirit
of liberty and reformation as the circumstances of succeeding gen-
erations required and as their character would safely bear. For
almost five centuries it was appealed to as the decisive authority
on behalf of the people, though commonly so far only as the neces-
sities of each case demanded." 1 Hist, of England, 221.
The Constitution of the United States was ordained, it is true,
by descendants of Englishmen, who inherited the traditions of
English law and history; but it was made for an undefined and
expanding future, and for a people gathered and to be gathered
from many nations and of many tongues. And while we take just
pride in the principles and institutions of the common law, we are
not to forget that in lands where other systems of jurisprudence
prevail, the ideas and processes of civil justice are also not un-
known. Due process of law, in spite of the absolutism of con-
tinental governments, is not alien to that code which survived the
Roman Empire as the foundation of modern civilization in Europe,
and which has given us that fundamental maxim of distributive
HURTADO v. CALIFORNIA. 539
justice, suum cuique tribuere. There is nothing in Magna Charta,
rightly construed as a broad charter of public right and law, which
ought to exclude the best ideas of all systems and of every age;
and as it was the characteristic principle of the common law to
draw its inspiration from every fountain of justice, we are not
to assume that the sources of its supply have been exhausted. On
the contrary, we should expect that the new and various experi-
ences of our own situation and system will mould and shape it into
new and not less useful forms.
The concessions of Magna Charta were wrung from the King
as guaranties against the oppressions and usurpations of his pre-
rogative. It did not enter into the minds of the barons to provide
security against their own body or in favor of the Commons by
limiting the power of Parliament; so that bills of attainder, ex
post facto laws, laws declaring' forfeitures of estates, and other
arbitrary acts of legislation which occur so frequently in English
history, were never regarded as inconsistent with the law of the
land; for notwithstanding what was attributed to Lord Coke in
Bonham's Case, 8 Sep., 115, 118a, the omnipotence of Parlia-
ment over the common law was absolute, even against common
right and reason. The actual and practical security for English
liberty against legislative tyranny was the power of a free public
opinion represented by the Commons.
In this country written constitutions were deemed essential to
protect the rights and liberties of the people against the encroach-
ments of power delegated to their governments, and the provisions
of Magna Charta were incorporated into Bills of Rights. They
were limitations upon all the powers of government,* legislative as
well as executive and judicial.
It necessarily happened, therefore, that as these broad and
general maxims of liberty and justice held in our system a different
place and performed a different function from their position and
office in English constitutional history and law, they would receive
and justify a corresponding and more comprehensive interpreta-
tion. Applied in England only as guards against executive usurpa-
tion and tyranny, here they have become bulwarks also against ar-
bitrary legislation; but, in that application, as it would be incon-
gruous to measure and restrict them by the ancient customary Eng-
lish law, they must be held to guarantee, not particular forms of
procedure, but the very substance of individual rights to life, lib-
erty, and property.
Restraints that could be fastened upon executive authority with
precision and detail, might prove obstructive and injurious when
540 CASES ON CONSTITUTIONAL LAW.
imposed on the just and necessary discretion of legislative power;
and, while in every instance, laws that violated express and specific
injunctions and prohibitions might, without embarrassment, be-
judicially declared to be void, yet, any general principle or maxim,
founded on the essential nature of law, as a just and reasonable
expression of the public will and of government, as instituted by
popular consent and for the general good, can only be applied to
cases coming clearly within the scope of its spirit and purpose, and
not to legislative provisions merely establishing forms and modes
of attainment. Such regulations, to adopt a sentence of Burke's,
"may alter the mode and application, but have no power over the
substance of original justice." Tract on the Popery Laws, 6
Burke's Works, ed. Little & Brown, 323.
Such is the often-repeated doctrine of this court. . . .
[Here are given quotations from Munn v. 111., 94 U. S., 113;
Walker v. Savinet, 92 U. S., 90; Kennard v. Louisiana, 92 U. S.,
480; Davidson v. N. 0., 96 U. S., 97.]
We are to construe this phrase in the Fourteenth Amendment
by the usus loquendi of the Constitution itself. The same words
are contained in the Fifth Amendment. That article makes spe-
cific and express provision for perpetuating the institution of the
grand jury, so far as relates to prosecutions for the more aggra-
vated crimes under the laws of the United States. It declares
that:
"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 offense to be twice put in
jeopardy of life or limb; nor shall he be compelled in any crim-
inal case to be witness against himself." [It then immediately
adds:] "Nor be deprived of life, liberty, or property without
due process of law."
According to a recognized canon of interpretation, especially ap-
plicable to formal and solemn instruments of constitutional law,
we are forbidden to assume, without clear reason to the contrary,
that any part of this most important amendment is superfluous.
The natural and obvious inference is, that in the sense of the Con-
stitution, "due process of law" was not meant or intended to in-
clude, ex vi termini, the institution and procedure of a grand jury
in any case. The conclusion is equally irresistible, that when the
same phrase was employed in the Fourteenth Amendment to re-
strain the action of the States, it was used in the same sense and
HURTADO v. CALIFORNIA. 541
with no greater extent; and that if in the adoption of that amend-
ment it had been part of its purpose to perpetuate the institution of
the grand jury in all the States, it would have embodied, as did the
Fifth Amendment, express declarations to that effect. Due process
of law in the latter refers to that law of the land which derives
its authority from the legislative powers conferred upon Congress
by the Constitution of the United States, exercised within the
limits therein prescribed, and interpreted according to the prin-
ciples of the common law. In the Fourteenth Amendment, by
parity of reason, it refers to that law of the land in each State
which derives its authority from the inherent and reserved powers
of the State, exerted within the limits of those fundamental prin-
ciples of liberty and justice which lie at the base of all our civil
and political institutions-, and tho greatest security for which re-
sides in the right of the people to make their own laws, and alter
them at their pleasure. . . . [Here follows a citation from
Missouri v. Lewis, 101 U. S., 22-31.]
But it is not to be supposed that these legislative powers are
absolute and despotic, and that the amendment prescribing due
process of law is too vague and indefinite to operate as a practical
restraint. It is not every act, legislative in form, that is law. Law
is something more than mere will exerted as an act of power. It
must be not a special rule for a particular person or a particular
case, but, in the language of Mr. Webster, in his familiar defini-
tion, "the general law, a law which hears before it condemns,
which proceeds upon inquiry, and renders judgment only after
trial," so "that every citizen shall hold his life, liberty, property,
and immunities under the protection of the general rules which
govern society;" and thus excluding, as not due process of law,
acts of attainder, bills of pains and penalties, acts of confiscation,
acts reversing judgments, and acts directly transferring one man's
estate to another, legislative judgments and decrees, and other
similar special, partial, and arbitrary exertions of power under
the forms of legislation. Arbitrary power, enforcing its edicts to
the injury of the persons and property of its objects, is not law,
whether manifested as the decree of a personal monarch or of
an impersonal multitude. And the limitations imposed by our
constitutional law upon the action of the governments, both State
and national, are essential to the preservation of public and pri-
vate rights, notwithstanding the representative character of our
political institutions. The enforcement of these limitations by
judicial process is the device of self-governing communities to pro-
tect the rights of individuals and minorities, as well against the
542 CASES ON CONSTITUTIONAL LAW.
power of numbers as against the violence of public agents tran-
scending the limits of lawful authority, even when acting in the
name and wielding the force of the government.
The Supreme Court of Mississippi, in a well-considered case,
Brown v. Levee Commissioners, 50 Miss., 468, speaking of the
meaning of the phrase "due process of law," says: "The principle
does not demand that the laws existing at any point of time shall
be irrepealable, or that any forms of remedies shall necessarily
continue. It refers to certain fundamental rights which that sys-
tem of jurisprudence, of which ours is a derivative, has always
recognized. If any of these are disregarded in the proceedings by
which a person is condemned to the loss of life, liberty, or property,
then the deprivation has not been by 'due process of law.' "
. . . [Here follows a citation from Loan Association v. To-
peka, 20 Wallace, 655-662.]
It follows that any legal proceeding enforced by public author-
ity, whether sanctioned by age and custom, or newly devised in
the discretion of the legislative power, in furtherance of the gen-
eral public good, which regards and preserves these principles of
liberty and justice, must be held to be due process of law.
The Constitution of Connecticut, adopted in 1818 and in force
when the Fourteenth Amendment took effect, requires an indict-
ment or presentment of a grand jury only in cases where the pun-
ishment of the crime charged is death or imprisonment for life,
and yet it also declares that no person shall "be deprived of life,
liberty, or property but by due course of law." It falls short,
therefore, of that measure of protection which it is claimed is
guaranteed by Magna Charta to the right of personal liberty;
notwithstanding which it is no doubt justly said in Swift's Digest,
17, that
"This sacred and inestimable right, without which all others
are of little value, is enjoyed by the people of this State in as full
extent as in any country on the globe, and in as high a degree
as is consistent with the nature of civil government. No individ-
ual or body of men has a discretionary or arbitrary power to com-
mit any person to prison: no man can be restrained of his liberty,
be prevented from removing himself from place to place as he
chooses, be compelled to go to a place contrary to his inclination,
or be in any way imprisoned or confined, unless by virtue of the
express laws of the land."
Tried by these principles, we are unable to say that the substitu-
tion for a presentment or indictment by a grand jury of the pro-
ceeding by information, after examination and commitment by
UNITED STATES v. KAGAMA. 543
a magistrate, certifying to the probable guilt of the defendant,
with the right on his part to the aid of counsel, and to the cross-
examination of the witnesses produced for the prosecution, is not
due process of law. It is, as we have seen, an ancient proceeding
at common law, which might include every case of an offense of
less grade than a felony, except misprision of treason; and in every
circumstance of its administration, as authorized by the statute of
California, it carefully considers and guards the substantial in-
terest of the prisoner. It is merely a preliminary proceeding, and
can result in no final judgment, except as a consequence of a reg-
ular judicial trial, conducted precisely as in cases of indictments.
In reference to this mode of proceeding at the common law, and
which he says "is as ancient as the common law itself," Blackstone
adds (4 Com., 305):
"And as to those offenses in which informations were allowed
as well as indictments, so long as they were confined to this high
and respectable jurisdiction, and were carried on in a legal and
regular course in his Majesty's Court of King's Bench, the subject
had no reason to complain. The same notice was given, the same
process was issued, the same pleas were allowed, the same trial by
jury was had, the same judgment was given by the same judges, as
if the prosecution had originally been by indictment."
For these reasons, finding no error therein, the judgment of the
Supreme Court of California is affirmed.
[MR. JUSTICE HARLAN rendered a dissenting opinion.]
UNITED STATES v. KAGAMA.
118 U. S. ; 375. Decided 1886.
The case is stated in the opinion of the court. . . .
MR. JUSTICE MILLER delivered the opinion of the court.
The case is brought here by certificate of division of opinion
between the Circuit Judge and the District Judge holding the
Circuit Court of the United States for District of California.
The questions certified arise on a demurrer to an indictment
against two Indians for murder committed on the Indian reserva-
tion of Hoopa Valley, in the State of California, the person mur-
dered being also an Indian of said reservation.
544 CASES ON CONSTITUTIONAL LAW.
Though there are six questions certified as the subject of differ-
ence, the point of them all is well set out in the third and sixth,
which are as follows:
"3. Whether the provisions of said section 9 (of the act of
Congress of March 3, 1885), making it a crime for one Indian
to commit murder upon another Indian, upon an Indian reserva-
tion situated wholly within the limits of a State of the Union, and
making such Indian so committing the crime of murder within and
upon such Indian reservation 'subject to the same laws' and
subject to be 'tried in the same courts, and in the same manner,
and subject to the same penalties as are all other persons' com-
mitting the crime of murder 'within the exclusive jurisdiction of
the United States/ is a constitutional and valid law of the United
States?"
"6. Whether the courts of the United States have jurisdiction
or authority to try and punish an Indian belonging to an Indian
tribe for committing the crime of murder upon another Indian
belonging to the same Indian tribe, both sustaining the usual
tribal relations, said crime having been committed upon an Indian
reservation made and set apart for the use of the Indian tribe to
which said Indians both belong?"
The indictment sets out in two counts that Kagama, alias Pactah
Billy, an Indian, murdered lyouse, alias Ike, another Indian, at
Humboldt County, in the State of California, within the limits
of the Hoopa Valley Keservation, and it charges Mahawaha, alias
Ben, also an Indian, with aiding and abetting in the murder.
The law referred to in the certificate is the last section of the
Indian appripriation act of that year, and is as follows:
" 9. That immediately upon and after the date of the passage
of this act all Indians committing against the person or property
of another Indian or other person any of the following crimes,
namely, murder, manslaughter, rape, assault wkh intent to kill,
arson, burglary and larceny, within any Territory of the United
States, and either within or without the Indian reservation, shall
be subject therefor to the laws of said Territory relating to said
crimes, and shall be tried therefor in the same courts and in the
same manner, and shall be subject to the same penalties, as are
all other persons charged with the commission of the said crimes,
respectively; and the said courts are hereby given jurisdiction
in all such cases; and all such Indians committing any of the
above crimes against the person or property of another Indian or
other person, within the boundaries of any State of the United
States, and within the limits of any Indian reservation, shall be
UNITED STATES v. KAGAMA. 545
subject to the same laws, tried in the same courts and in the same
manner, and subject to the same penalties, as are all other persons
committing any of the above crimes within the exclusive juris-
diction of the United States." 23 Stat, ch. 341, 362; 9, 385.
The above enactment is clearly separable into two distinct
definitions of the conditions under which Indians may be punished
for the same crimes as defined by the common law. The first
of these is where the offense is committed within the limits of a
territorial government, whether on or off an Indian reservation.
In this class of cases the Indian charged with the crime shall be
judged by the laws of the Territory on that subject, and tried by
its courts. This proposition itself is new in legislation of Congress,
which has heretofore only undertaken to punish an Indian who
sustains the usual relation to his triT)e, and who commits the
offense in the Indian country, or on an Indian reservation, in ex-
ceptional cases; as where the offense was against the person or
property of a white man, or was some violation of the trade and
intercourse regulations imposed by Congress on the Indian tribes.
It is new, because it now proposes to punish these offenses when
they are committed by one Indian on the person or property of
another.
The second is where the offense is committed by one Indian
against the person or property of another, within the limits of
a State of the Union, but on an Indian reservation. In this case,
of which the State and its tribunals would have jurisdiction if the
offense was committed by a white man outside an Indian reserva-
tion, the courts of the United States are to exercise jurisdiction
as if the offense had been committed at some place within the
exclusive jurisdiction of the United States. The first clause sub-
jects all Indians guilty of these crimes committed within the limits
of a Territory, to the laws of that Territory, and to its courts for
trial. The second, which applies solely to offenses by Indians
which are committed within the limits of a State and the limits of
a reservation, subjects the offenders to the laws of the United
States passed for the government of places under the exclusive
jurisdiction of those laws, and to trial by the courts of the United
States. This is a still further advance, as asserting this jurisdic-
tion over the Indians within the limits of the States of the Union.
Although the offense charged in this indictment was com-
mitted within a State and not within a Territory, the considera-
tions which are necessary to a solution of the problem in regard
to the one must in a large degree affect the other.
The Constitution of the United States is almost silent in regard
35
546 CASES ON CONSTITUTIONAL LAW.
to the relations of the government which was established by it to
the numerous trib.es of Indians within its borders.
In declaring the basis on which representation in the lower
branch of Congress and direct taxation should be apportioned,
it was fixed that it should be according to numbers, excluding In-
dians not taxed, which, of course, excluded nearly all of that race,
but which meant that if there were such within a State as were
taxed to support the government, they should be counted for rep-
resentation, and in the computation for direct taxes levied by the
United States. This expression, excluding Indians not taxed, is
found in the XlVth amendment, where it deals with the same
subject under the new conditions produced by the emancipation
of the slaves. Neither of these shed much light on the power of
Congress over the Indians in their existence as tribes, distinct
from the ordinary citizens of a State or Territory.
The mention of Indians in the Constitution which has received
most attention is that found in the clause which gives Congress
"power to regulate commerce with foreign nations and among the
several States, and with the Indian tribes."
This cause is relied on in the argument in the present case, the
proposition being that the statute under consideration is a regula-
tion of commerce with the Indian tribes. But we think it would
be a very strained construction of this clause, that a system of
criminal laws for Indians living peaceably in their reservations,
which left out the entire code of trade and intercourse laws justly
enacted under that provision, and established punishments for
the common-law crimes of murder, manslaughter, arson, burglary,
larceny, and the like, without any reference to their relation to
any kind of commerce, was authorized by the grant of power to
regulate commerce with the Indian tribes. While we are not
able to see, in either of these clauses of the Constitution and its
amendments, any delegation of power to enact a code of criminal
law for the punishment of the worst class of crimes known to
civilized life when committed by Indians, there is a suggestion in
the manner in which the Indian tribes are introduced into that
clause, which may have a bearing on the subject before us. The
commerce with foreign nations is distinctly stated as submitted
to the control of Congress. Were the Indian tribes foreign na-
tions? If so, they came within the first of the three classes of
commerce mentioned, and did not need to be repeated as Indian
tribes. Were they nations; in the minds of the framers of the
Constitution? If so, the natural phrase would have been "foreign
nations and Indian nations," or, in the terseness of language uni-
UNITED STATES v. KAGAMA. 547
formly used by the framers of the instrument, it would naturally
have been "foreign and Indian nations." And so in the case of
The Cherokee Nation v. The State of Georgia, 5 Pet., 1, 20, brought
in the Supreme Court of the United States, under the declara-
tion that the judicial power extends to suits between a State and
foreign States, and giving to the Supreme Court original jurisdic-
tion where a State is a party, it was conceded that Georgia as a
State came within the clause, but held that the Cherokees were
not a State or nation within the meaning of the Constitution, so
as to be able to maintain the suit.
But these Indians are within the geographical limits of the United
States. The soil and the people within these limits are under the
political control of the government of the United States, or of
the States of the Union. There exist within the broad domain of
sovereignty but these two. There may be cities, counties, and
other organized bodies with limited legislative functions, but they
are all derived from, or exist in, subordination to one or the other
of these. The territorial governments owe all their powers to the
statutes of the United States conferring on them the powers which
they exercise, and which are liable to be withdrawn, modified, or
repealed at any time by Congress. What authority the State gov-
ernments may have to enact criminal laws for the Indians will
be presently considered. But this power of Congress to organize
territorial governments, and make laws for their inhabitants, arises
not so much from the clause in the Constitution in regard to dis-
posing of and making rules and regulations concerning the Terri-
tory and other property of the United States, as from the owner-
ship of the country in which the Territories are, and the right of
exclusive sovereignty which must exist in the national government,
and can be found nowhere else. Murphy v. Kamsey, 114 U. S.,
15, 44.
In the case of American Ins. Co. v. Canter, 1 Pet., 511, 542, in
which the condition of the people of Florida, then under a terri-
torial government, was under consideration, Marshall, Chief Jus-
tice, said: "Perhaps the power of governing a Territory belonging
to the United States, which has not, by becoming a State, acquired
the means of self-government, may result necessarily from the fact
that it is not within the jurisdiction of any particular State, and
is within the power and jurisdiction of the United States. The
right to govern may be the inevitable consequence of the right to
acquire territory. Whichever may be the source whence the power
is derived, the possession of it is unquestioned."
In the case of the United States v. Rogers, 4 How., 567, 572,
548 CASES ON CONSTITUTIONAL LAW.
where a white man pleaded in abatement to an indictment for
murder committed in the country of the Cherokee Indians, that he
had been adopted by and become a member of the Cherokee tribe,
Chief Justice Taney said: "The country in which the crime is
charged to have been committed is a part of the territory of the
United States, and not within the limits of any particular State.
It is true it is occupied by the Cherokee Indians. But it has been
assigned to them by the United States as a place of domicil for the
tribe, and they hold with the assent of the United States, and
under their authority." After referring to the policy of the Euro-
pean nations and the United States in asserting dominion over
all the country discovered by them, and the justice of this course,
he adds: "But had it been otherwise, and were <the right and the
propriety of exercising this power now open to question, yet it is
a question for the law-making and political departments of the
government, and not for the judicial. It is our duty to expound
and execute 'the law as we find it, and we think it too firmly and
clearly established to admit of dispute, that the Indian tribes,
residing within the territorial limits of the United States, are sub-
ject to their authority, and when the country occupied by one of
them is not within the limits of one of the States, Congress may
by law punish any offense committed there, no matter whether
the offender be a white man or an Indian."
The Indian reservation in the case before us is land bought by
the United States from Mexico by the treaty of Guadaloupe Hi-
dalgo, and the whole of California, with the allegiance of its in-
habitants, many of whom were Indians, was transferred by that
treaty to the United States.
The relation of the Indian tribes living within the borders of the
United States, both before and since the Revolution, to the people
of the United States has always been an anomalous one and of a
complex character.
Following the policy of the European governments in the dis-.
covery of America towards the Indians who were found here, the
colonies before the Revolution and the States and the United
States since, have recognized in the Indians a possessory right to
the soil over which they roamed and hunted and established occa-
sional villages. But they asserted an ultimate title in the land
itself, by which the Indian tribes were forbidden to sell or transfer
it to other nations or peoples without the consent of this para-
mount authority. "When a tribe wished to dispose of its land, or
any part of it, or the State or the United States wished to pur-
chase it, a treaty with the tribe was the only mode in which this
UNITED STATES v. KAGAMA. 549
could be done. The United States recognized no right in private
persons, or in other nations, to make such a purchase by treaty
or otherwise. With the Indians themselves these relations axe
equally difficult to define. They were, and always have been, re-
garded as having a semi-independent position when they preserved
their tribal relations; not as States, not as nations, not as pos-
sessed of the full attributes of sovereignty, but as a separate peo-
ple, with the power of regulating their internal and social rela-
tions, and thus far not brought under the laws of the Union
or of the State within whose limits they resided.
Perhaps the best statement of their position is found in the
two opinions of this court by Chief Justice Marshall in the case of
The Cherokee Nation v. Georgia, 5 Pet., 1, and in the case of
Worcester v. State of Georgia, 6 Pet., 515, 536. These opinions are
exhaustive; and in the separate opinion of Mr. Justice Baldwin, in
the former, is a very valuable resume of the treaties and statutes
concerning the Indian tribes previous to and during the confed-
eration.
In the first of the above cases it was held that these tribes were
neither States nor nations, had only some of the attributes of sov-
ereignty, and could not be so far recognized in that capacity as
to sustain a suit in the Supreme Court of the United States. In
the second case it was said that they were not subject to the juris-
diction asserted over them by the State of Georgia, which, because
they were within its limits, where they had been for ages, had
attempted to extend her laws and the jurisdiction of her courts
over them.
In the opinions in these cases they are spoken of as "wards of
the nation," "pupils," as local dependent communities. In this
spirit the United States has conducted its relations to them from
its organization to this time. But, after an experience of a hun-
dred years of the treaty-making system of government, Congress
has determined upon a new departure to govern them by acts of
Congress. This is seen in the act of March 3, 1871, embodied in
2079 of the Revised Statutes:
"No Indian nation or tribe, within the territory of the United
States, shall be acknowledged or recognized as an independent
nation, tribe, or power, with whom the United States may con-
tract by treaty; but no obligation of any treaty lawfully mado and
ratified with any such Indian nation or tribe prior to March third,
eighteen hundred and seventy-one, shall be hereby invalidated or
impaired."
The case of Crow Dog, 109 U. S., 556, in which an agreement
550 CASES ON CONSTITUTIONAL LAW.
with the Sioux Indians, ratified by an act of Congress, was sup-
posed to extend over them the laws of the United States and the
jurisdiction of its courts, covering murder and other grave crimes,
shows the purpose of Congress in this new departure. The de-
cision in that case admits that if the intention of Congress had
been to punish, by the United States courts, the murder of one
Indian by another, the law would have been valid. But the court
could not see, in the agreement with the Indians sanctioned by
Congress, a purpose to repeal 2146 of the Kevised Statutes,
which expressly excludes from that jurisdiction the case of a crime
committed by one Indian against another in the Indian country.
The passage of the act now under consideration was designed to
remove that objection, and to go further by including such crimes
on reservations lying within a State.
Is this latter fact a fatal objection to the law? The statute itself
contains no express limitations upon the powers of a State or the
jurisdiction of its courts. If there be any limitation in either of
these, it grows out of the implication arising from the fact that
Congress has defined a crime committed within the State, and
made it punishable in the courts of the United States. But Con-
gress has done this, and can do it with regard to all offenses relat-
ing to matters to which the Federal authority extends. Does that
authority extend to this case?
It will be seen at once that the nature of the offense (murder)
is one which in almost all cases of its commisison is punishable
by the laws of the States, and within the jurisdiction of their
courts. The distinction is claimed to be that the offense under
the statute is committed by an Indian, that it is committed on a
reservation set apart within the State for the residence of the tribe
of Indians by the United States, and the fair inference is that
the offending Indian shall belong to that or some other tribe.
It does not interfere with the process of the State courts within
the reservation, nor with the operation of State laws upon white
people found there. Its effect is confined to the acts of an Indian
of some tribe, of a criminal character, committed within the limits
of the reservation.
It seems to us that this is within the competency of Congress.
These Indian tribes are the wards of the nation. They are com-
munities dependent on the United States. Dependent largely for
their food. Dependent for their political rights. They owe no
allegiance to the States, and receive from them no protection. Be-
cause of the local ill feeling, the people of the States where they
are found are often their deadliest enemies. From their very weak-
UNITED STATES v. KAGAMA. 551
ness and helplessness, so largely due to the course of dealing of
the Federal Government with them and the treaties in which it has
been promised, there arises the duty of protection, and with it the
power. This has always been recognized by the Executive and
by Congress, and by this court, whenever the question has arisen.
In the case of Worcester v. The State of Georgia, above cited,
it was held that, though the Indians had by treaty sold their land
within that State and agreed to remove away, which they failed
to do, the State could not, while they remained on those lands,
extend its laws, criminal and civil, over the tribes; that the duty
and power to compel their removal was in the United States, and
the tribe was under their protection, and could not be subjected
to the laws of the State and the process of its courts.
The same thing was decided in the case of Fellows v. Black-
smith & Others, 19 How., 3G6. In this case, also, the Indians had
sold their lands under supervision of the States of Massachusetts
and New York, and had agreed to remove within a given time.
When the time came a suit to recover some of the land was brought
in the Supreme Court of New York, which gave judgment for the
plaintiff. But this court held, on writ of error, that the State could
not enforce this removal, but the duty and power to do so was
in the United States. See also the case of the Kansas Indians, 5
Wall., 737; New York Indians, 5 Wall., 761.
The power of the General Government over these remnants of
a race once powerful, now weak and diminished in numbers, is
necessary to their protection, as well as to the safety of those among
whom they dwell. It must exist in that government, because it
never has existed anywhere else, because the theater of its exercise
is within the geographical limits of the United States, because it
has never been denied, and because it alone can enforce its laws
on all the tribes.
We answer the questions propounded to us, that tlie 9th section
of the act of March, 1885, is a valid law in both its branches, and
that the Circuit Court of the United States for the District of Cali-
fornia has jurisdiction of the offense charged in the indictment
in this case.
NOTE. In United States v. Wong Kim Ark, 169 U. S., 649
(1898), the court held that a child born in California of parents
subject to the Emperor of China was born a citizen of the United
States, even though his parents were by law expressly excluded
from American citizenship. On this decision see Boyd, "The
Basis of Citizenship," in The Nation for July 7, 1898.
XII. THE FEDERAL GOVERNMENT AND
THE STATES.
TEXAS v. WHITE ET AL.
7 Wallace, 700. Decided 1868.
[The facts are sufficiently stated in the opinion of the court.]
THE CHIEF JUSTICE delivered the opinion of the court.
This is an original suit in this court, in which the State of Texas,
claiming certain bonds of the United States as her property, asks
an injunction to restrain the defendants from receiving payment
from the National government, and to compel the surrender of the
bonds to the State.
It appears from the bill, answers, and proofs, that the United
States, by act of September 9, 1850, offered to the State of Texas,
in compensation for her claims connected with the settlement of
her boundary, $10,000,000 in five per cent, bonds, each for the
sum of $1,000; and that this offer was accepted by Texas. One-
half of these bonds were retained for certain purposes in the Na-
tional treasury, and the other half were delivered to the State.
The bonds thus delivered were dated January 1, 1851, and were all
made payable to the State of Texas, or bearer, and redeemable
after the 31st day of December, 1864. They were received in behalf
of the State by the comptroller of public accounts, under authority
of an act of the legislature, which, besides giving that authority,
provided that no bond should be available in the hands of any
holder until after indorsement by the governor of the State.
After the breaking out of the rebellion, the insurgent legislature
of Texas, on the llth of January, 1862, repealed the act requiring
the indorsement of the governor, 1 and on the same day provided
for the organization of a military board, composed of the governor,
comptroller, and treasurer; and authorized a majority of that board
to provide for the defense of the State by means of any bonds in
the treasury, upon any account, to the extent of $1,000,000. 2 The
i Acts of Texas, 1862, p. 45. 2 Texas Laws, 55.
552
TEXAS v. WHITE. 553
defense contemplated by the act was to be made against the United
States by war. Under this authority the military board entered
into an agreement with George W. White and John Chiles, two
of the defendants, for the sale to them of one hundred and thirty-.
five of these bonds, then in the treasury of the State, and seventy-
six more, than deposited with Droege & Co., in England; in pay-
ment for which they engaged to deliver to the board a large quan-
tity of cotton cards and medicines. This agreement was made oi>
the 12th of January, 1865. On the 12th of March, 1865, White ami
Chiles received from the military board one hundred and thirty-
five of these bonds, none of which were indorsed by any governor
of Texas. Afterward, in the course of the years 1865 and 1866,
some of the same bonds came into the possession of others of the
defendants, by purchase, or as security for advances of money.
Such is a brief outline of the case. It will be necessary here-
after to refer more in detail to some particular circumstances of it.
The first inquiries to which our attention was directed by coun-
sel, arose upon the allegations of the answer of Chiles (1) that no
sufficient authority is shown for the prosecution of the suit in
the name and on the behalf of the State of Texas; and (2) that
the State, having severed her relations with a majority of the
States of the Union, and having by her ordinance of secession at-
tempted to throw off her allegiance to the Constitution and gov-
ernment of the United States, has so far changed her status as
to be disabled from prosecuting suits in the National courts.
The first of these allegations is disproved by the evidence. A
letter of authority, the authenticity of which is not disputed, has
been produced, in which J. W. Throckmorton, elected governor
under the constitution adopted in 1866, and proceeding under
an act of the State legislature relating to these bonds, expressly
ratifies and confirms the action of the solicitors who filed the bill,
and empowers them to prosecute this suit; and it is further proved
by the affidavit of Mr. Paschal, counsel for the complainant, that
he was duly appointed by Andrew J. Hamilton, while provisional
governor of Texas, to represent the State of Texas in reference to
the bonds in controversy, and that his appointment has been
renewed by E. M. Pease, the actual governor. If Texas was a State
of the Union at the time of these acts, and these persons or either
of them, were competent to represent the State, this proof leaves no
doubt about the question of authority.
The other allegation presents a question of jurisdiction. It is
not questioned that this court has original jurisdiction of suits by
States against citizens of other States, or that the States entitled
554 CASES ON CONSTITUTIONAL LAW.
to invoke this jurisdiction must be States of the Union. But, it
is equally clear that no such jurisdiction lias been conferred upon
this court of suits by any other political communities than such
States.
If, therefore, it is true that the State of Texas was not at the
time of filing this bill, or is not now, one of the United States, we
have no jurisdiction of this suit, and it is our duty to dismiss it.
It [the word state] describes sometimes a people or community
of individuals united more or less closely in political relations,
inhabiting temporarily or permanently the same country; often
it denotes only the country or territorial region, inhabited by such
a community; not unfrequently it is applied to the government
under which the people live; at other times it represents the
combined idea of people, territory, and government. . . .
In the Constitution the term state most frequently expresses
the combined idea just noticed, of people, territory, and govern-
ment. A State, in the ordinary sense of the Constitution, is a
political community of free citizens, occupying a territory of de-
nned boundaries, and organized under a government sanctioned
and limited by a written constitution, and established by the con-
sent of the governed. It is the union of such states, under a com-
mon constitution, which forms the distinct and greater political
unit, which that Constitution designates as the United States, and
makes of the people and states which compose it one people and
one country. . . .
In all respects, so far as the objects could be accomplished by
ordinances of the convention, by acts of the legislature, and by
votes of the citizens, the relations of Texas to the Union were
broken up, and new relations to a new government were established
for them.
The position thus assumed could only be maintained by arms, and
Texas accordingly took part, with the other Confederate States, in
the war of the rebellion, which these events made inevitable. Dur-
ing the whole of that war there was no governor, or judge, or any
other State officer in Texas, who recognized the National author-
ity. Nor was any officer of the United States permitted to exer-
cise any authority whatever under the National government within
the limits of the States, except under the immediate protection of
the National military forces.
Did Texas, in consequence of these acts, cease to be a State? Or,
if not, did the State cease to be a member of the Union?
It is needless to discuss, at length, the question whether the right
TEXAS v*. WHITE. 555
of a State to withdraw from the Union for any cause, regarded by
herself as sufficient, is consistent with the Constitution of the
United States.
The Union of the States never was a purely artificial and arbi-
trary relation. It began among the Colonies, and grew out of com-
mon origin, mutual sympathies, kindred principles, similar inter-
ests, and geographical relations. It was confirmed and strength-
ened by the necessities of war, and received definite form, and
character, and sanction from the Articles of Confederation. By
these the Union was solemnly declared to "be perpetual." And
when these Articles were found to be inadequate to the exigencies
of the country, the Constitution was ordained "to form a more
perfect Union." It is difficult to convey the idea of indissoluble
unity more clearly than by these words. What can be indissoluble
if a perpetual Union, made more perfect, is not?
But the perpetuity and indissolubility of the Union, by no means
implies the loss of distinct and individual existence, or of the right
of self-government by the States. Under the Articles of Confed-
eration, each State retained its sovereignty, freedom, and inde-
pendence, and every power, jurisdiction, and right not expressly
delegated to the United States. Under the Constitution, though
the powers of the States were much restricted, still, all powers not
delegated to the United States, nor prohibited to the States, are
reserved to the States respectively, or to the people. And we have
already had occasion to remark at this term, that "the people of
each State compose a State, having its own government, and en-
dowed with all the functions essential to separate and independent
existence," and that "without the States in union, there could be
no such political body as the United States." 1 Not only therefore
can there be no loss of separate and independent autonomy to the
States, through their union and under the Constitution, but it
may be not unreasonably said that the preservation of the States,
and the maintenance of their governments, are as much within
the design and gare of the Constitution as the preservation of the
Union and the maintenance of the National government. The
Constitution, in all of its provisions, looks to an indestructible
Union, composed of indestructible States.
When, therefore, Texas became one of the United States, she
entered into an indissoluble relation. All the obligations of per-
petual union and all the guarantees of republican government in
the Union, attached at once, to the State. The act which con-
i County of Lane v. The State of Oregon, 7 Wallace, 76.
556 CASES ON CONSTITUTIONAL LAW.
summated her admission into the Union was something more than
a compact; it was the incorporation of a new member into the
political body. And it was final. The union between Texas and
the other States was as complete, as perpetual, and as indissoluble
as the union between the original States. There was no place for
reconsideration, or revocation, except through revolution, or
through consent of the States.
Considered therefore as transacted under the Constitution, the
ordinance of secession, adopted by the convention and ratified by
a majority of the citizens of Texas, and all the acts of her legisla-
ture intended to give effect to that ordinance, were absolutely null.
They were utterly without operation in law. The obligations of
the State, as a member of the Union, and of every citizen of the
State, as a citizen of the United States, remained perfect and unim-
paired.' It certainly follows that the State did not cease to be a
State, nor her citizens to be citizens of the Union. If this were
otherwise, the State must have become foreign, and her citizens
foreigners. The war must have ceased to be a war for the sup-
pression of rebellion, and must have become a war for conquest and
subjugation.
Our conclusion therefore is, that Texas continued to be a State,
and a State of the Union, notwithstanding the transactions to
which we have referred. And this conclusion, in our judgment,
is not in conflict with any act or declaration of any department of
the National government, but entirely in accordance with the whole
series of such acts and declarations since the first outbreak of the
rebellion.
But in order to the exercise, by a State, of the right to sue in
this court, there needs to be a State government, competent to
represent the State in its relations with the National government,
so far at least as the institution and prosecution of a suit is con-
cerned.
And it is by no means a logical conclusion, from the premises
which we have endeavored to establish, that the governmental
relations of Texas to the Union remained unaltered. Obligations
often remain unimpaired, while relations are greatly changed.
The obligations of allegiance to the State, and of obedience to her
laws, subject to the Constitution of the United States, are binding
upon all citizens, whether faithful or unfaithful to them; but the
relations which subsist while these obligations are performed, are
essentially Different from those which arise when they are disre-
garded and set at nought. And the same must necessarily be true
of the obligations and relations of States and citizens to the Union.
TEXAS v. WHITE. 557
No one has been bold enough to contend that, while Texas was con-
trolled by a government hostile to the United States, and in affilia-
tion with a hostile confederation, waging war upon the United
States, senators chosen by her legislature, or representatives elected
by her citizens, were entitled to seats in Congress; or that any suit,
instituted in her name, could be entertained in this court. All
admit that, during this condition of civil war, the rights of the
State as a member, and of her people as citizens of the Union,
were suspended. The government and the citizens of the State,
refusing to recognize their constitutional obligations, assumed the
character of enemies, and incurred the consequences of rebellion.
These new relations imposed new duties upon the United States.
The first was that of suppressing the rebellion. The next was
that of re-establishing the broken relations of the State with the
Union. The first of these duties having been performed, the next
necessarily engaged the attention of the National government.
The authority for the performance of the first had been found
in the power to suppress insurrection and carry on war; for the
performance of the second, authority was derived from the obliga-
tion of the United States to guarantee to every State in the Union
a republican form of government. The latter, indeed, in the case
of a rebellion which involves the government of a State, and for
the time excludes the National authority from its limits, seems to
be a necessary complement to the former.
Of this, the case of Texas furnishes a striking illustration. When
the war closed there was no government in the State except that
which had been organized for the purpose of waging war against
the United States. That government immediately disappeared.
The chief functionaries left the State. Many of the subordinate
officials followed their example. Legal responsibilities were an-
nulled or greatly impaired. It was inevitable that great confusion
should prevail. If order was maintained, it was where the good
sense and virtue of the citizens gave support to local acting magis-
trates, or supplied more directly the needful restraints.
A great social change increased the difficulty of the situation.
Slaves, in the insurgent States, with certain local exceptions, had
been declared free by the Proclamation of Emancipation; and
whatever questions might be made as to the effect of that act,
under the Constitution, it was clear, from the beginning, that its
practical operation, in connection with legislative acts of like
tendency, must be complete enfranchisement. Wherever the Na-
tional forces obtained control, the slaves became freemen. Sup-
port to the acts of Congress and the proclamation of the President,
558 CASES ON CONSTITUTIONAL LAW.
concerning slaves, was made a condition of amnesty 1 by President
Lincoln, in December, 1863, and by President Johnson, in May,
1865. 2 And emancipation was confirmed, rather than ordained,
in the insurgent States, by the amendment to the Constitution
prohibiting slavery throughout the Union, which was proposed by
Congress in February, 1865, and ratified, before the close of the
following autumn, by the requisite three-fourths of the States. 3
The new freemen necessarily became part of the people, and the
people still constituted the State; for States, like individuals, retain
their identity, though changed to some extent in their constituent
elements. And it was the State, thus constituted, which was now
entitled to the benefit of the constitutional guarantee.
There being then no government in Texas in constitutional re-
lations with the Union, it became the duty of the United States to
provide for the restoration of such a government. But the restora-
tion of the government which existed before the rebellion, without
a new election of officers, was obviously impossible; and before
any such election could be properly held, it was necessary that the
old Constitution should receive such amendments as would con-
form its provisions to the new conditions created by emancipation,
and afford adequate security to the people of the State.
In the exercise of the power conferred by the guarantee clause,
as in the exercise of every other constitutional power, a discretion
in the choice of means is necessarily allowed. It is essential only
that the means must be necessary and proper for carrying into
execution the power conferred, through the restoration of the
State to its constitutional relations, under a republican form of
government, and that no acts be done, and no authority exerted,
which is either prohibited or unsanctioned by the Constitution.
It is not important to review, at length, the measures which
have been taken, under this power, by the executive and legislative
departments of the National government. It is proper, however,
to observe that almost immediately after the cessation of organ-
ized hostilities, and while the war yet smouldered in Texas, the
President of the United States issued his proclamation appointing
a provisional governor for the State, and providing for the assem-
bling of a convention, with a view to the re-establishment of a
republican government, under an amended constitution, and to
the restoration of the State to her proper constitutional relations.
A convention was accordingly assembled, the constitution amended,
1 13 Stats, at Large, 737. s Ib., 774-775.
2 Ib., 758.
TEXAS v. WHITE. 559
elections held, and a State government, acknowledging its obliga-
tions, to the Union, established.
Whether the action then taken was, in all respects, warranted by
the Constitution, it is not now necessary to determine. The power
exercised by the President was supposed, doubtless, to be derived
from his constitutional functions, as commander-in-chief ; and, so
long as the war continued, it cannot be denied that he might insti-
tute temporary government within insurgent districts, occupied by
the National forces, or take measures, in any State, for the restora-
tion of State government faithful to the Union, employing, how-
ever, in such efforts, only such means and agents as were author-
ized by constitutional laws.
But the power to carry into effect the clause of guarantee is pri-
marily a legislative power, and resides in Congress. "Under the
fourth article of the Constitution, it rests with Congress to decide
what government is the established one in a State. For, as the
United States guarantee to each State a republican government,
Congress must necessarily decide what government is established
in the State, before it can determine whether it is republican or
not."
This is the language of the late Chief Justice, speaking for this
court, in a case from Ehode Island, 4 arising from the organization
of opposing governments in that State. And we think that the
principle sanctioned by it may be applied, with even more pro-
priety, to the case of a State deprived of all rightful government,
by revolutionary violence; though necessarily limited to cases
where the rightful government is thus subverted, or in imminent
danger of being overthrown by an opposing government, set up
by force within the State.
The action of the President must, therefore, be considered as
provisional, and, in that light, it seems to have been regarded by
Congress. It was taken after the term of the 38th Congress had
expired. The 39th Congress, which assembled in December, 1865,
followed by the 40th Congress, which met in March, 1867, pro-
ceeded, after long deliberation, to adopt various measures for reor-
ganization and restoration. These measures were embodied in
proposed amendments to the Constitution, and in the acts known
as the Eeconstruotion Acts, which have been so far carried into
effect, that a majority of the States which were engaged in the re-
bellion have been restored to their constitutional relations, under
forms of government, adjudged to be republican by Congress,
* Luther v. Borden, 7 Howard, 42.
560 CASES ON CONSTITUTIONAL LAW.
through the admission of their "Senators and Representatives into
the councils of the Union."
Nothing in the case before us requires the court to pronounce
judgment upon the constitutionality of any particular provision of
these acts.
But it is important to observe that these acts themselves show-
that the governments, which had been established and had been
in actual operation under executive direction, were recognized by
Congress as provisional, as existing, and as capable of continuance.
By the act of March 2, 1867, 5 the first of the series, these gov-
ernments were, indeed, pronounced illegal and were subjected to
military control, and were declared to be provisional only; and by
the supplementary act of July 19, 1867, the third of the series, it
was further declared that it was the true intent and meaning of
the act of March 2, that the governments then existing were not
legal State governments, and if continued, were to be continued
subject to the military commanders of the respective districts and
to the paramount authority of Congress. We do not inquire here
into the constitutionality of this legislation so far as it relates to
military authority, or to the paramount authority of Congress. It
suffices to say, that the terms of the acts necessarily imply recog-
nition of actually existing governments; and that in point of fact,
the governments thus recognized, in some important respects, still
exist.
What has thus been said generally describes, with sufficient ac-
curacy, the situation of Texas. A provisional governor of the State
was appointed by the President in 1865; in 1866 a governor was
elected by the people under the constitution of that year; at a
subsequent date a governor was appointed by the commander of the
district. Each of the three exercised executive functions and actu-
ally represented the State in the executive department.
In the case before us each has given his sanction to the prosecu-
tion of the suit, and we find no difficulty, without investigating the
legal title of either to the executive office, in holding that the
sanction thus given sufficiently warranted the action of the solicitor
and counsel in behalf of the State. The necessary conclusion is that
the suit was instituted and is prosecuted by competent authority.
The question of jurisdiction being thus disposed of, we proceed
to the consideration of the merits as presented by the pleadings
and the evidence. . . .
On the whole case, therefore^ our conclusion is that the State of
5 14 Stats, at Large, 428.
TEXAS v. WHITE. 561
Texas is entitled to the relief sought by her bill, and a decree must
be made accordingly.
ME. JUSTICE GRIER dissenting. I regret that I am compelled to
dissent from the opinion of the majority of the court on all the
points raised and to be decided in this case.
The first question in order is the jurisdiction of the court to
entertain this bill in behalf of the State of Texas.
The original jurisdiction of this court can be invoked only by
one of the United States. The Territories have no such right con-
ferred on them by the Constitution, nor have the Indian tribes who
are under the protection of the military authorities of the gov-
ernment.
Is Texas one of these United States? Or was she such at the
time this bill was filed, or since?
This is to be decided as a political fact, not as a legal fiction.
This court is bound to know and notice the public history of the
nation.
If I regard the truth of history for the last eight years, I cannot
discover the State of Texas as one of these United States. I do
not think it necessary to notice any of the very astute arguments
which have been advanced by the learned counsel in this case, to
find the definition of a State, when we have the subject treated in
a clear and common-sense manner by Chief Justice Marshall, in
the case of Hepburn & Dundas v. Ellzey. 6 As the case is short, I
hope to be excused for a full report of it, as stated and decided by
the court. He says:
"The question is, whether the plaintiffs, as residents of the Dis-
trict of Columbia, can maintain an action in the Circuit Court of
the United States for the District of Virginia. This depends on
the act of Congress describing the jurisdiction of that court. The
act gives jurisdiction to the Circuit Courts in cases between a citi-
zen of the State in which the suit is brought, and a citizen of an-
other State. To support the jurisdiction in this case, it must appear
that Columbia is a State. On the part of the plaintiff, it has been
urged that Columbia is a distinct political society, and is, therefore,
a 'State' according to the definition of writers on general law.
This is true; but as the act of Congress obviously uses the word
'State' in reference to that term as used in the Constitution, it be-
comes necessary to inquire whether Columbia is a State in the
sense of that instrument. The result of that examination is a con-
viction that the members of the American Confederacy only are the
36 62 Cranch, 452.
562 CASES ON CONSTITUTIONAL LAW.
States contemplated in the Constitution. The House of Repre-
sentatives is to be composed of members chosen by the people of
the several States, and each State shall have at least one repre-
sentative. 'The Senate of the United States shall be composed of
two senators from each State.' Each State shall appoint, for the
election of the executive, a number of electors equal to its whole
number of senators and representatives. These clauses show that
the word 'State' is used in the Constitution as designating a mem-
ber of the Union, and excludes from the term the signification
attached to it by writers on the law of nations."
Now we have here a clear and well-defined test by which we
may arrive at a conclusion with regard to the questions of fact
now to be decided.
Is Texas a Slate, now represented by members chosen by the
people of that State and received on the floor of Congress? Has she
two senators to represent her as a State in the Senate of the United
States? Has her voice been heard in the late election of President?
Is she not now held and governed as a conquered province by mili-
tary force? The act of Congress of March 2d, 1867, declares Texas
to be a "rebel State," and provides for its government until a legal
and republican State government could be legally established. It
constituted Louisiana and Texas the fifth military district, and
made it subject, not to the civil authority, but to the "military
authorities of the United States."
It is true that no organized rebellion now exists there, and the
courts of the United States now exercise jurisdiction over the peo-
ple of that province. But this is no test of the State's being in
the Union; Dakota is no State, and yet the United States admin-
ister justice there as they do in Texas. The Indian tribes, who are
governed by military force, cannot claim to be States of the Union.
Wherein does the condition of Texas differ from theirs?
Now, by assuming or admitting as a fact the present status of
Texas as a State not in the Union politically, I beg leave to protest
against any charge of inconsistency as to judicial opinions hereto-
fore expressed as a member of this court, or silently assented to. I
do not consider myself bound to express any opinion judicially as
to the constitutional right of Texas to exercise the rights and privi-
leges of a State of this Union, or the power of Congress to govern
her as a conquered province, to subject her to military domination,
and keep her in pupilage. I can only submit to the fact as de-
cided by the political position of the government; and I am not
disposed to join in any essay to prove Texas to be a State of the
Union, when Congress have decided that she is not. It is a question
TARBLE'S CASE. 563
of fact, I repeat, and of fact only. Politically, Texas is not a State
in this Union. Whether rightfully out of it or not is a question
not before the court. . . .
MR. JUSTICE S WAYNE: I concur with my brother Grier as to
the incapacity of the State of Texas, in her present condition, to
maintain an original suit in this court. The question, in my judg-
ment, is one in relation to which this court is bound by the action
pf the legislative department of the government.
Upon the merits of the case, I agree with the* majority of my
brethren.
I am authorized to say that my brother MILLER unites with me
in these views.
TAEBLE'S CASE.
13 Wallace, 397. Decided 1871.
ERROR to the Supreme Court of Wisconsin.
This was a proceeding on habeas corpus for the discharge of one
Edward Tarble, held in the custody of a recruiting officer of the
United States as an enlisted soldier, on the alleged ground that he
was a minor, under the age of eighteen years at the time of his
enlistment, and that he enlisted without the consent of his father.
The writ was issued on the 10th of August, 1869, by a court com-
missioner of Dane County, Wisconsin, an officer authorized by the
laws of that State to issue the writ of habeas corpus upon the peti-
tion of parties imprisoned or restrained of their liberty, or of per-
sons on their behalf. It was issued in this case upon the petition
of the father of Tarble, in which he alleged that his son, who had
enlisted under the name of Frank Brown, was confined and re-
strained of his liberty by Lieutenant Stone, of the United States
army, in the city of Madison, in that State and county; that the
cause of his confinement and restraint was that he had, on the 20th
of the preceding July, enlisted, and been mustered into the mili-
tary service of the United States; that he was under the age of
eighteen years at the time of such enlistment; that the same was
made without the knowledge, consent, or approval of the peti-
tioner; and was, therefore, as the petitioner was advised and be-
lieved, illegal; and that the petitioner was lawfully entitled to the
custody, care, and services of his son. . . .
564 CASES ON CONSTITUTIONAL LAW.
[The commissioner held that the prisoner was illegally detained
by Lieutenant Stone, and ordered his discharge. Afterward? Lieu-
tenant Stone had the proceedings taken to the Supreme Court of
Wisconsin, where the order of the commissioner discharging the
prisoner was affirmed. That judgment was then brought before
the United States Supreme Court on a writ of error prosecuted by
the United States.]
ME. JUSTICE FIELD, after stating the case, delivered the opinion
of the court, as follows:
The important question is presented by this case, whether a
State court commissioner has jurisdiction, upon habeas corpus, to
inquire into the validity of the enlistment of soldiers into the mili-
tary service of the United States, and to discharge them from such
service when, in his judgment, their enlistment has not been made
in conformity with the laws of the United States. The question
presented may be more generally stated thus: Whether any judicial
officer of a State has jurisdiction to issue a writ of habeas corpus,
or to continue proceedings under the writ when issued, for the dis-
charge of a person held under the authority, or claim and color of
the authority, of the United States, by an officer of that govern-
ment. For it is evident, if such jurisdiction may be exercised by
any judicial officer of a State, it may be exercised by the court
commissioner within the county for which he is appointed; and if
it may be exercised with reference to soldiers detained in the mili-
tary service of the United States, whose enlistment is alleged to
have been illegally made, it may be exercised with reference to per-
sons employed in any other department of the public service when
their illegal detention is asserted. It may be exercised in all cases
where parties are held under the authority of the United States,
whenever the invalidity of the exercise of that authority is affirmed.
The jurisdiction, if it exist at all, can only be limited in its appli-
cation by the legislative power of the State. It may even reach
to parties imprisoned under sentence of the National courts, after
regular indictment, trial, and conviction, for offenses against the
laws of the United States. As we read the opinion of the Supreme
Court of Wisconsin in this case, this is the claim of authority as-
serted by that tribunal for itself and for the judicial officers of that
State. It does, indeed, disclaim any right of either to interfere
with parties in custody, under judicial sentence, when the National
court pronouncing sentence had jurisdiction to try and punish the
offenders, but it asserts, at the same time, for itself and for each of
TARBLE'S CASE. 565
those officers, the right to determine, upon habeas corpus, in all
cases, whether that court ever had such jurisdiction. . . .
It is evident, as said by this court when the case of Booth was
finally brought before it, if the power asserted by that State court
ever existed, no offense against the laws of the United States could
be punished by their own tribunals, without the permission and
according to the judgment of the courts of the State in which the
parties happen to be imprisoned; that if that power existed in that
State court, it belonged equally to every other State court in the
Union where a prisoner was within its territorial limits; and, as
the different State courts could not always agree, it would often
happen that an act, which was admitted to be an offense and justly
punishable in one State, would be regarded as innocent and even
praiseworthy in another, and no one could suppose that a govern-
ment, which had hitherto lasted for seventy years, "enforcing its
laws by its own tribunals, and preserving the union of the States,
could have lasted a single year, or fulfilled the trusts committed
to it, if offenses against its laws could not have been punished with-
out the consent of the State in which the culprit was found."
. . . [Here follows an extended discussion of Ableman v. Booth
and The United States v. Booth, 21 Howard, 506.]
It is in the consideration of this distinct and independent char-
acter of the government of the United States, from that of the
government of the several States, that the solution of the question
presented in this case, and in similar cases, must be found. There
are within the territorial limits of each State two governments, re-
stricted in their spheres of action, but independent of each other,
and supreme within their respective spheres. Each has its sep-
arate departments; each has its distinct laws, and each has its own
tribunals' for their enforcement. Neither government can intrude
within the jurisdiction, or authorize any interference therein by
its judicial officers with the action of the other. The two gov-
ernments in each State stand in their respective spheres of action
in the same independent relation to each other, except in one par-
ticular, that they would if their authority embraced distinct ter-
ritories. That particular consists in the supremacy of the authority
of the United States when any conflict arises between the two
governments. The Constitution and the laws passed in pursuance
of it, are declared by the Constitution itself to be the supreme law
of the land, and the judges of every State are bound thereby, "any-
thing in the constitution or laws of any State to the contrary not-
withstanding." Whenever, therefore, any conflict arises between
the enactments of the two sovereignties, or in the enforcement of
566 CASES ON CONSTITUTIONAL LAW.
their asserted authorities, those of the National government must
have supremacy until the validity of the different enactments and
authorities can be finally determined by the tribunals of the United
States. This temporary supremacy until judicial decision by the
National tribunals, and the ultimate determination of the conflict
by such decision, are essential to the preservation of order and
peace, and the avoidance of forcible collision between the two
.governments. "The Constitution/' as said by Mr. Chief Justice
Taney, "was not framed merely to guard the States against danger
from abroad, but chiefly to secure union and harmony at home;
and to accomplish this end it was deemed necessary, when the
Constitution was framed, that many of the rights of sovereignty
which the States then possessed should be ceded to the General
government; and that in the sphere of action assigned to it, it
should be supreme and strong enough to execute its own laws by
its own tribunals, without interruption from a State, or from State
authorities." And the judicial power conferred extends to all
cases arising under the Constitution, and thus embraces every legis-
lative act of Congress, whether passed in pursuance of it, or in
disregard of its provisions. The Constitution is under the view
of the tribunals of the United States when any act of Congress is
brought before them for consideration.
Such being the distinct and independent character of the two
governments, within their respective spheres of action, it follows
that neither can intrude with its judicial process into the domain
of the other, except so far as such intrusion may be necessary on
the part of the National government to preserve its rightful su-
premacy in cases of conflict of authority. In their laws, and mode
of enforcement, neither is responsible to the other. How their
respective laws shall be enacted; how they shall be carried into
execution; and in what tribunals, or by what officers; and how
much discretion, or whether any at all shall be vested in their
officers, are matters subject to their own control, and in the regula-
tion of which neither can interfere with the other.
Now, among the powers assigned to the National government,
is the power "to raise and support armies," and the power "to
provide for the government and regulation of the land and naval
forces." The execution of these powers falls within the line of its
duties; and its control over the subject is plenary and exclusive.
It can determine, without question from any State authority, how
the armies shall be raised, whether by voluntary enlistment or
forced draft, the age at which the soldier shall be received, and
the period for which he shall be taken, the compensation he shall
TARBLE'S CASE. 567
be allowed, and the service to which he shall be assigned. And it
can provide the rules for the government and regulation of the
forces after they are raise;d, define what shall constitute military
offenses, and prescribe their punishment. No interference with
the execution of this power of the National government in the
formation, organization, and government of its armies by any State
officials could be permitted without greatly impairing the effi-
ciency, if it did not utterly destroy, this branch of the public ser-
vice. Probably in every county and city in the several States there
are one or more officers authorized by law to issue writs of habeas
corpus on behalf of persons alleged to be illegally restrained of
their liberty; and if soldiers could be taken from the army of the
United States, and the validity of their enlistment inquired into by
any one of these officers, such proceeding could be taken by all of
them, and no movement could be made by the National troops
without their commanders being subjected to constant annoyance
and embarrassment from this source. The experience of the late
rebellion has shown us, that, in times of great popular excitement,
there may be found in every State large numbers ready and anxious
to embarrass the operations of the government, and easily per-
suaded to believe every step taken for the enforcement of its
authority illegal and void. Power to issue writs of habeas corpus
for the discharge of soldiers in the military service, in the hands
of parties thus disposed, might be used, and often would be used,
to the great detriment of the public service. In many exigencies
the measures of the National government might in this way be
entirely bereft of their efficacy and value. An appeal in such cases
to this court, to correct the erroneous action of these officers,
would afford no adequate remedy. Proceedings on habeas corpus
are summary, and the delay incident to bringing the decision of a
State officer, through the highest tribunal of the State, to this
court for review would necessarily occupy years, and in the mean-
time, where the soldier was discharged, the mischief would be ac-
complished. It is manifest that the powers of the National govern-
ment could not be exercised with energy and efficiency at all times,
if its acts could be interfered with and controlled for any period by
officers or tribunals of another sovereignty.
It is true similar embarrassment might sometimes be occasioned,
though in a less degree, by the exercise of the authority to issue
the writ possessed by judicial officers of the United States, but the
ability to provide a speedy remedy for any inconvenience following
from this source would always exist with the National legislature.
State judges and State courts, authorized by laws of their States
568 CASES ON CONSTITUTIONAL LAW.
to issue writs of habeas corpus, have undoubtedly a right to issue
the writ in any case where a party is alleged to be illegally confined
within their limits, unless it appear upon his application that he is
confined under the authority, or claim and color of the authority,
of the United States, by an officer of that government. If such
fact appear upon the application the writ should be refused. If
it do not appear, the judge or court issuing the writ has a right
to inquire into the cause of imprisonment and ascertain by what
authority the person is held within the limits of the State;
and it is the duty of the marshal, or other officer having the
custody of the prisoner, to give, by a proper return, information
in this respect. His return should be sufficient, in its detail of
facts, to show distinctly that the imprisonment is under the au-
thority, or claim and color of the authority, of the United States,
and to exclude the suspicion of imposition or oppression on his
part. And the process or orders, under which the prisoner is held,
should be produced with the return and submitted to inspection,
in order that the court or judge issuing the writ may see that the
prisoner is held by the officer, in good faith, under the authority
or claim and color of the authority, of the United States, and not
under the mere pretence of having such authority.
This right to inquire by process of habeas corpus, and the duty
of the officer to make a return, "grows necessarily," says Mr. Chief
Justice Taney, "out of the complex character of our government
and the existence of two distinct and separate sovereignties within
the same territorial space, each of them restricted in its power, and
each within its sphere of action, prescribed by the Constitution of
the United States, independent of the other. But, after the re-
turn is made, and the State judge or court judicially apprised that
the party is in custody under the authority of the United States,
they can proceed no further. They then know that the prisoner
is within the dominion and jurisdiction of another government,
and that neither the writ of habeas corpus nor any other process
issued under State authority can pass over the line of division be-
tween the two sovereignties. He is then within the dominion and '
exclusive jurisdiction of the United States. If he has committed
an offense against their laws, their tribunals alone can punish him.
If he is wrongfully imprisoned, their judicial tribunals can release
him and afford him redress."
Some attempt has been made in adjudications, to which our at-
tention has been called, to limit the decision of this court in Able-
man v. Booth, and The United States v. Booth, to cases where a
prisoner is held in custody under undisputed lawful authority of
TARBLE'S CASE. 5G9
the United States, as distinguished from his imprisonment under
claim and color of such authority. But it is evident that the deci-
sion does not admit of any such limitation. It would have been
unnecessary to enforce, by any extended reasoning, such as the
Chief Justice uses, the position that when it appeared to the judge
or officer issuing the writ, that the prisoner was held under undis-
puted lawful authority, he should proceed no further. No Federal
judge even could, in such case, release the party from imprison-
ment, except upon bail when that was allowable. The detention
being by admitted lawful authority, no judge could set the pris-
oner at liberty, except in that way, at any stage of the proceeding.
All that is meant by the language used is, that the State judge or
State court should proceed no further when it appears, from the
application of the party, or the return made, that the prisoner is
held by an officer of the United States under what, in truth, pur-
ports to be the authority of the United States; that is, an author-
ity, the validity of which is to be determined by the Consitution
and laws of the United States. If a party thus held be illegally
imprisoned it is for the courts or judicial officers of the United
States, and those courts or officers alone, to grant him release.
This limitation upon the power of State tribunals and State
officers furnishes no just ground to apprehend that the liberty of
the citizen will thereby be endangered. The United States are as
much interested in protecting the citizen from illegal restraint
under their authority, as the several States are to protect him from
the like restraint under their authority, and are no more likely to
tolerate any oppression. Their courts and judicial officers are
clothed with the power to issue the writ of habeas corpus in all
cases, where.a party is illegally restrained of his liberty by an officer
of the United States, whether such illegality consist in the char-
acter of the process, 'the authority of the officer, or the invalidity
of the law under which he is held. And there is no just reason
to believe that they will exhibit any hesitation to exert their power,
when it is properly invoked. Certainly there can be no ground for
supposing that their action will be less prompt and efficient in such
cases than would be that of State tribunals and State officers. 1
It follows, from the views we have expressed, that the court
commissioner of Dane County was without jurisdiction to issue
the writ of habeas corpus for the discharge of the prisoner in this
case, it appearing, upon the application presented to him for the
writ, that the prisoner was held by an officer of the United States,
i In the matter of Severy, 4 Clifford. In the matter of Keeler, Hemp-
stead, 306.
570 CASES ON CONSTITUTIONAL LAW.
under claim and color of the authority of the United States, as an
enlisted soldier mustered into the military service of the National
government; and the same information was imparted to the com-
missioner by the return of the officer. The commissioner was, both
by the application for the writ and the return to it, apprised that
the prisoner was within the dominion and jurisdiction of another
government, and that no writ of habeas corpus issued by him could
pass over the line which divided the two sovereignties.
The conclusion we have reached renders it unnecessary to con-
sider how far the declaration of the prisoner as to 'his age, in the
oath of enlistment, is to be deemed conclusive evidence on that
point on the return to the writ. Judgment reversed.
The CHIEF JUSTICE, dissenting. I cannot concur in the opinion
just read. I have no doubt of the right of a State court to in-
quire into the jurisdiction of a Federal court upon habeas corpus,
and to discharge when satisfied that the petitioner for the writ is
restrained of liberty by the sentence of a court without jurisdiction.
If it errs in deciding the question of jurisdiction, the error must
be corrected in the mode prescribed by the 25th section of the
Judiciary Act; not by denial of the right to make inquiry.
I have still less doubt, if possible, that a writ of habeas corpus
may issue from a State court to inquire into the validity of im-
prisonment or detention, without the sentence of any court what-
ever, by an officer of the United States. The State court may err;
and if it does, the error may be corrected here. The mode has been
prescribed and should be followed.
To deny the right of State courts to issue the writ, or, what
amounts to the same thing, to concede the right to issue and to
deny the right to adjudicate, is to deny the right to protect the
citizen by habeas corpus against arbitrary imprisonment in a large
number of cases; and, I am thoroughly persuaded, was never
within the contemplation of the Convention which framed, or the
people who adopted, the Constitution. That instrument expressly
declares that "the privilege of the writ of habeas corpus shall not
be suspended, unless when, in case of rebellion or invasion, the
public safety may require it."
EX PARTE SIEBOLD.
Ex PARTE SIEBOLD.
100 U. S., 371. Decided 1879.
PETITION for writ of habeas corpus.
The facts are stated in the opinion of the court. . ...
ME. JUSTICE BRADLEY delivered the opinion of the court.
The petitioners in this case, Albert Siebold, Walter Tucker,
Martin C. Burns, Lewis Coleman, and Henry Bowers, were judges
of election at different voting precincts in the city of Baltimore,
at the election held in that city, and in the State of Maryland, on
the fifth day of November, 1878, at which representatives to the
Forty-sixth Congress were voted for.
At the November Term of the Circuit Court of the United States
for the District of Maryland, an indictment against each of the
petitioners was found in said court, for offenses alleged to have
been committed by them respectively at their respective precincts
whilst being judges of election; and upon which indictments they
were severally tried, convicted, and sentenced by said court to fine
and imprisonment. They now apply to this court for a writ of
habeas corpus to be relieved from imprisonment. . . .
These indictments were framed partly under Sect. 5515 and
partly under Sect. 5522 of the Eevised Statutes of the United
States; and the principal questions raised by the application are,
whether those sections, and certain sections of the title of the
Revised Statutes relating to the elective franchise, which they are
intended to enforce, are within the constitutional power of Con-
gress to enact. If they are not, then it is contended that the Cir-
cuit Court has no jurisdiction of the cases, and that the convic-
tions and sentences of imprisonment of the several petitioners were
illegal and void. . . .
The peculiarity of the case consists in the concurrent authority
of the two sovereignties, State and National, over the same sub-
ject-matter. This, however, is not entirely without a parallel. The
regulation of foreign and interstate commerce is conferred by the
Constitution upon Congress. It is not expressly taken away from
the States. But where the subject matter is one of a national char-
acter, or one that requires a uniform rule, it has been held that
the power of Congress is exclusive. On the contrary, where neither
of these circumstances exist, it has been held that State regulations
are not unconstitutional. In the absence of congressional regula-
tion, which would be of paramount authority when adopted, they
572 CASES ON CONSTITUTIONAL LAW.
are valid and binding. . . . [Here follows a discussion of
Cooley v. Board of Wardens of Port of Philadelphia, 12 How-
ard, 299.]
So in the case of laws for regulating the elections of repre-
sentatives to Congress. The State may make regulations on the
subject; Congress may make regulations on the same subject, or
may alter or add to those already made. The paramount character
of those made by Congress has the effect to supersede those made
by the State, so far as the two are inconsistent, and no farther.
There is no such conflict between them as to prevent their form-
ing a harmonious system perfectly capable of being administered
and carried out as such.
As to the supposed conflict that may arise between the officers
appointed by the State and national governments for superintend-
ing the election, no more insuperable difficulty need arise than in
the application of the regulations adopted by each respectively.
The regulations of Congress being constitutionally paramount, the
duties imposed thereby upon the officers of the United States, so
far as they have respect to the same matters, must necessarily be
paramount to those to be performed by the officers of the State.
If both cannot be performed, the latter are pro tanto superseded
and cease to be duties. If the power of Congress over the subject
is supervisory and paramount, as we have seen it to be, and if
officers or agents are created for carrying out its regulations, it
follows as a necessary consequence that such officers and agents
must- have the requisite authority to act without obstruction or
interference from the officers of the State. No greater subordina-
tion, in kind or degree, exists in this case than in any other. It
exists to the same extent between the different officers appointed
by the State, when the State alone regulates the election. One
officer cannot interfere with the duties of another, or obstruct or
hinder him in the performance of them. Where there is a disposi-
tion to act harmoniously, there is no danger of disturbance be-
tween those who have different duties to perform. When the
rightful authority of the general government is once conceded and
acquiesced in, the apprehended difficulties will disappear. Let a
spirit of national as well as local patriotism once prevail, let un-
founded jealousies cease, and we shall hear no more about the
impossibility of harmonious action between the national and State
governments in a matter in which they have a mutual interest.
As to the supposed incompatibility of independent sanctions
and punishments imposed by the two governments, for the en-
forcement of the duties required of the officers of election, and for
EX PARTE SIEBOLD. 573
their protection in the performance of those duties, the same con-
siderations apply. While the State will retain the power of en-
forcing such of its own regulations as are not superseded by those
adopted by Congress, it cannot be disputed that if Congress has
power to make regulations it must have the power to enforce them,
not only by punishing the delinquency of officers appointed by the
United States, but by restraining and punishing those who attempt
to interfere with them in the performance of their duties; and if,
as we have shown, Congress may revise existing regulations, and
add to or alter the same as far as it deems expedient, there can be
as little question that it may impose additional penalties for the
prevention of frauds committed by the State officers in the elec-
tions, or for their violation of any duty relating thereto, whether
arising from the common law or from any other law, State or na-
tional. Why not? Penalties for fraud and delinquency are part of
the regulations belonging to the subject. If Congress, by its power
to make or alter the regulations, has a general supervisory power
over the whole subject, what is there to preclude it from imposing
additional sanctions and penalties to prevent such fraud and de-
linquency?
It is objected that Congress has no power to enforce State laws
or to punish State officers, and especially has no power to punish
them for violating the laws of their own State. As a general propo-
sition, this is undoubtedly true; but when, in the performance of
their functions, State officers are called upon to fulfill duties which
they owe to the United States as well as to the State, has . the
former no means of compelling such, fulfilment? Yet that is the
case here. It is the duty of the States to elect representatives to
Congress. The due and fair election of these representatives is
of vital importance to the United States. The government of the
United States is no less concerned in the transaction than the State
government is. It certainly is not bound to stand by as a passive
spectator, when duties are violated and outrageous frauds are com-
mitted. It is directly interested in the faithful performance, by
the officers of election, of their respective duties. Those duties
are owed as well to the United States as to the State. This neces-
sarily follows from the mixed character of the transaction, State
and national. A violation of duty is an offense against the United
States, for which the offender is justly amenable to that govern-
ment. No official position can shelter him from this responsibility.
In view of the fact that Congress has plenary and paramount juris-
diction over the whole subject, it seems almost absurd to say that
an officer who receives or has custody of the ballots given for a
574 CASES ON CONSTITUTIONAL LAW.
representative owes no duty to the national government which
Congress can enforce; or that an officer who stuffs the ballot-box
cannot be made amenable to the United States. If Congress has
not, prior to the passage of the present laws, imposed any penalties
to prevent and punish frauds and violations of duty committed
by officers of election, it has been because the exigency has not
been deemed sufficient to require it, and not because Congress
had not the requisite power.
The objection that -the laws and regulations, the violation of
which is made punishable by the acts of Congress, are State laws,
and have not been adopted by Congress, is no sufficient answer
to the power of Congress to impose punishment. It is true that
Congress has not deemed it necessary to interfere with the duties
of the ordinary officers of election, but has been content to leave
them as prescribed by State laws. It has only created additional
sanctions for their performance, and provided means of supervision
in order more effectually to secure such performance. The im-
position of punishment implies a prohibition of the act punished.
The State laws which Congress sees no occasion to alter, but which
it allows to stand, are in effect adopted by Congress. It. simply
demands their fulfillment. Content to leave the laws as they are,
it is not content with the means provided for their enforcement.
It provides additional means for that purpose; and we think it is
entirely within its constitutional power to do so. It is simply the
exercise of the power to make additional regulations.
That the duties devolved on the officers of election are duties
which they owe to the United States as well as to the State, is
further evinced by the fact that they have always been so regarded
by the House of Representatives itself. In most cases of contested
elections, the conduct of these officers is examined and scrutin-
ized by that body as a matter of right; and their failure to per-
form their duties is often made the ground of decision. Their
conduct is justly regarded as subject to the fullest exposure; and
the right to examine them personally, and to inspect all their
proceedings and papers, has always been maintained. This could
not be done, if the officers were amenable only to the supervision
of the State government which appointed them.
Another objection made is, that, if Congress can impose penal-
ties for violation of State laws, the officer will be made liable to
double punishment for delinquency, at the suit of the State,
and at the suit of the United States. But the answer to this is,
that each government punishes for violation of duty to itself
only. Where a person owes a duty to two sovereigns, he is amen-
EX PARTE SIEBOLD. 575
able to both for its performance; and either may call him to
account. Whether punishment inflicted by one can be pleaded in
bar to a charge by the other for the same identical act, need not
now be decided; although considerable discussion bearing upon the
subject has taken place in this court, tending to the conclusion
that such a plea cannot be sustained.
In reference to a conviction under a State law for passing coun-
terfeit coin, which was sought to be reversed on the ground that
Congress had jurisdiction over that subject, and might inflict
punishment for the same offense, Mr. Justice Daniel, speaking for
the court, said: "It is almost certain that, in the benignant
spirit in which the institutions both of the State and Federal
systems are administered, an offender who should have suffered
the penalties denounced by the one would not be subjected a second
time to punishment by the other for acts essentially the same,
unless, indeed, this might occur in instances of peculiar enormity,
or where the public safety demanded extraordinary rigor. But,
were a contrary course of policy or action either probable or
usual, this would by no means justify the conclusion Ihat offenses
falling within the competency of different authorities to restrain
or punish them would not properly be subjected to the conse-
quences which those authorities might ordain and affix to their
perpetration." Fox v. The State of Ohio, 5 How., 410. The
same judge, delivering the opinion of the court in the case of
United States v. Marigold (9 How., 569) where a conviction was
had under an act of Congress for bringing counterfeit coin into
the country, said, in reference to Fox's Case: "With the view of
avoiding conflict between the State and Federal jurisdictions,
this court, in the case of Fox v. State of Ohio, have taken care
to point out that the same act might, as to its character and
tendencies, and the consequences it involved, constitute an offense
against both the State and Federal governments, and might draw
to its commission the penalties denounced by either, as appro-
priate to its character in reference to each. We hold this dis-
tinction sound;" and the conviction was sustained. The subject
came up again for discussion in the case of Moore v. State of
Illinois (14 id., 13), in which the plaintiff in error had been con-
victed under a State law for harboring and secreting a negro
slave, which was contended to be properly an offense against the
United States under the fugitive-slave law of 1793, and not an
offense against the State. The objection of double punishment
was again raised. Mr. Justice Grier, for the court, said: "Every
citizen of the United States is also a citizen of a State or a Ter-
576 CASES ON CONSTITUTIONAL LAW.
ritory. He may be said to owe allegiance to two sovereigns, and
may be liable to punishment for an infraction of the laws of either.
The same act may be an offense or transgression of the laws of
both." Substantially the same views are expressed in United States
v. Cruikshank (92 U. S., 542), referring to these cases; and we
do not well see how the doctrine they contain can be contro-
verted. A variety of instances may be readily suggested, in which
it would be necessary or proper to apply it. Suppose, for example,
a State judge having power under the naturalization laws to admit
aliens to citizenship should utter false certificates of naturaliza-
tion, can it be doubted that he could be indicted under the act
of Congress providing penalties for that offense, even though he
might also, under the State laws, be indictable for forgery, as
well as liable to impeachment? So, if Congress, as it might, should
pass a law fixing the standard of weights and measures, and im-
posing a penalty for sealing false weights and false measures,
but leaving to the States the matter of inspecting and sealing
those used by the people, would not an offender, filling the office
of sealer under a State law, be amenable to the United States as
well as to the State?
If the officers of election, in elections for representatives, owe
a duty to the United States, and are amenable to that government
as well as to -the State, as we think they are, then, according
to the cases just cited, there is no reason why each should not
establish sanctions for the performance of the duty owed to itself,
though referring to the same act.
To maintain the contrary proposition, the case of -Common-
wealth of Kentucky v. Dennison (24 How., 66) is confidently relied
on by the petitioners' counsel. But there, Congress had imposed
a duty upon the governor of the State which it had no authority
to impose. The enforcement of the clause in the Constitution
requiring the delivery of fugitives from service was held to belong
to the government of the United States, to be effected by its own
agents; and Congress had no authority to require the governor
of a State to execute this duty.
We have thus gone over the principal reasons of a special char-
acter relied on by the petitioners for maintaining the general
proposition for which they contend; namely, that in the regula-
tion of elections for representatives the national and State gov-
ernments cannot co-operate, but must act exclusively of each
other; so that, if Congress assumes to regulate the subject at all,
it must assume exclusive control of the whole subject. The more
general reason assigned, to wit, that the nature of sovereignty
EX PARTE SIEBOLD. 577
is such as to preclude the joint co-operation of two sovereigns, even
in a matter in which they are mutually concerned, is not, in our
judgment, of sufficient force to prevent concurrent and harmonious
action on the part of the national and State governments in the
election of representatives. It is at most an argument ab incon-
veniente. There is nothing in the Constitution to forbid such co-
operation in this case. On the contrary, as already said, we think
it clear that the clause of the Constitution relating to the regula-
tion of such elections contemplates such co-operation whenever
Congress deems it expedient to interfere merely to alter or add
to existing regulations of the State. If the Iwo governments had
an entire equality of jurisdiction, there might be an intrinsic dif-
ficulty in such co-operation. Then the adoption by the State
government of a system of regulations might exclude the action
of Congress. By first taking jurisdiction of the subject, the State
would acquire exclusive jurisdiction in virtue of a well-known
principle applicable to courts having co-ordinate jurisdiction over
the same matter. But no such equality exists in ihe present case.
The power of Congress, as we have seen, is paramount, and
may be exercised at any time, and to any extent which it deems
expedient; and so far as it is exercised, and no farther, the regu-
lations effected supersede those of the State which are incon-
sistent therewith.
As a general rule, it is no doubt expedient and wise that the
operations of the State and national governments should, as far
as practicable, be conducted separately, in order to avoid undue
jealousies and jars and conflicts of jurisdiction and power. But
there is no reason for laying this down as a rule of universal ap-
plication. It should never be made to override the plain and
manifest dictates of the Constitution itself. We cannot yield to
such a transcendental view of State sovereignty. The Constitu-
tion and laws of the United States are the supreme laws of the
land, and to these every citizen of every State owes obedience,
whether in his individual or official capacity. There are very
few subjects, it is true, in which our system of government, com-
plicated as it is, requires or gives room for conjoint action between
the State and national sovereignties. Generally, the powers given
by the Constitution to the government of the United States are
given over distinct branches of sovereignty from which the State
governments, either expressly or by necessary implication, are ex-
cluded. But in this case, expressly, and in some others, by im-
plication, as we have seen in the case of pilotage, a concurrent
jurisdiction is contemplated, that of the State, however, being
37
578 CASES ON CONSTITUTIONAL LAW.
subordinate to that of the United States, whereby all questions of
precedency is eliminated.
In what we have said, it must be remembered that we are deal-
ing only with the subject of elections of representatives to Con-
gress. If for its own convenience a State sees fit to -elect State
and county officers at the same time and in conjunction with the
election of representatives, Congress will not be thereby deprived
of the right to make regulations in reference to the latter. We
do not mean to say, however, that for any acts of the officers of
election, having exclusive reference to the election of State or
county officers, they will be amenable to Federal jurisdiction; nor
do we understand that the enactments of Congress now under
consideration have any application to such acts.
It must also be remembered that we are dealing with the ques-
tion of power, not of the expediency of any regulations which
Congress has made. That is not within the pale of our jurisdic-
tion. In exercising the power, however, we are bound to presume
that Congress has done so in a judicious manner; that it has
endeavored to guard as far as possible against any unnecessary
interference with State laws and regulations, with the duties of
State officers, or with local prejudices. It could not act at all
so as to accomplish any beneficial object in preventing frauds and
violence, and securing the faithful performance of duty at the
elections, without providing for the presence of officers and agents
to carry its regulations into effect. It is also difficult to see how
it could attain these objects without imposing proper sanctions
and penalties against offenders.
The views we have expressed seem to us to be founded on such
plain and practical principles as hardly to need any labored argu-
ment in their support. We may mystify anything. But if we
take a plain view of the words of the Constitution, and give to
them a fair and obvious interpretation, we cannot fail in most
cases of coming to a clear understanding of its meaning. We shall
not have far to seek. We shall find it on the surface, and not
in the profound depths of speculation.
The greatest difficulty in coming to a just conclusion arjses
from mistaken notions with regard to the relations which sub-
sist between the State and national governments. It seems to be
often overlooked that a national constitution has been adopted in
this country, establishing a real government therein, operating
upon persons and territory and things; and which, moreover, is,
or should be, as dear to every American citizen as his State gov-
ernment is. Whenever the true conception of the nature of this
EX PARTE SIEBOLD. 579
government is once conceded, no real difficulty will arise in the
just interpretation of its powers. But if we allow ourselves to
regard it as a hostile organization, opposed to the proper sov-
ereignty and dignity of the State governments, we shall continue
to be vexed with difficulties as to its jurisdiction and authority.
No greater jealousy is required to be exercised towards this gov-
ernment in reference to the preservation of our liberties, than is
proper to be exercised towards the State governments. Its powers
are limited in number, and clearly defined; and its action within
the scope of those powers is restrained by a sufficiently rigid bill
of rights for the protection of its citizens from oppression. The
true interest of the people of this country requires that both the
national and State governments should be allowed, without jealous
interference on either side, to exercise all the powers which re-
spectively belong to them according to a fair and practical con-
struction of the Constitution. State rights and the rights of the
United States should be equally respected. Both are essential
to the preservation of our liberties and the perpetuity of our
institutions. But in endeavoring to vindicate the one, we should
not allow our zeal to nullify or impair the other.
Several other questions bearing upon the present controversy
have been raised by the counsel of the petitioners. Somewhat akin
to the argument which has been considered is the objection that
the deputy marshals authorized by the act of Congress to be created
and to attend the elections are authorized -to keep the peace; and
that this is a duty which belongs to the State* authorities alone.
It is argued that the preservation of peace and good order in so-
ciety is not within the powers confided to the government of the
United States, but belongs exclusively to the States. Here again
we are met with the theory that the government of the United
States does not rest upon the soil and territory of the country.
We think that this theory is founded on an entire misconception
of the nature and powers of that government. We hold it to be
an incontrovertible principle, that the government of the United
States may, by means of physical force, exercised through its
official agents, execute on every foot of American soil the powers
and functions that belong to it. This necessarily involves the
power to command obedience to its laws, and hence the power
to keep the peace to that extent.
This power to enforce its laws and to execute its functions
in all places does not derogate from the powers of the State to
execute its laws at the same time and in the same places. The
one does not exclude the other, except where both cannot be
580 CASES ON CONSTITUTIONAL LAW.
executed at the same time. In that case, the words of the Con-
stitution itself shoAV which is to yield. "This Constitution, and
all laws which shall be made in pursuance thereof, . . . shall
be the supreme law of the land."
This concurrent jurisdiction which the national government
necessarily possesses to exercise its powers of sovereignty in all
parts of the United States is distinct from that exclusive power
which, by the first article of the Constitution, it is authorized to
exercise over the District of Columbia, and over those places within
a State which are purchased by consent of the legislature thereof,
for the erection of forts, magazines, arsenals, dock-yards, and other
needful buildings. There its jurisdiction is absolutely exclusive
of that of the State, unless, as is sometimes stipulated, power is
given to the latter to serve the ordinary process of its courts in
the precinct acquired.
Without the concurrent sovereignty referred to, the national
government would be nothing but an advisory government. Its
executive power would be absolutely nullified.
Why do we have marshals at all, if they cannot physically lay
their hands on persons and things in the performance of their
proper duties? What functions can they perform, if they cannot
use force? In executing the processes of the courts, must they
call on the nearest constable for protection? Must they rely on
him to use the requisite compulsion, and to keep the peace whilst
they are soliciting and* entreating the parties and bystanders to
allow the law to take its course? This is the necessary conse-
quence of the positions that are assumed. If we indulge in such
impracticable views as these, and keep on refining and re-refining,
we shall drive the national government out of the United States,
and relegate it to the District of Columbia, or perhaps to some
foreign soil. We shall bring it back to a condition of greater help-
lessness than that of the old confederation.
The argument is based on a strained and impracticable view of
the nature and powers of the national government. It must exe-
cute its powers, or it is no government. It must execute them
on the land as well as on the sea, on things as well as on person?.
And, to do this, it must necessarily have power to command obedi-
ence, preserve order, and keep the peace; and no person or power
in this land has the right to resist or question its authority, so
long as it keeps within the bounds of its jurisdiction. Without
specifying other instances in which this power to preserve order
and keep the peace unquestionably exists, take the very case in
hand. The counsel for the petitioners concede that Congress may,
EX PARTE SIEBOLD. 581
if it sees fit, assume the entire control and regulation of the elec-
tion of representatives. This would necessarily involve the ap-
pointment of the places for holding the polls, the times of voting,
and the officers for holding the election; it would require the regu-
lation of the duties to be performed, the custody of the ballots, the
mode of ascertaining the result, and every other matter relating
io the subject. Is it possible that Congress could not, in that
case, provide for keeping the peace at such elections, and for ar-
resting and punishing those guilty of breaking it? If it could
not, its power would be but a shadow and a name. But, if Con-
gress can do this, where is the difference in principle in its making
provision for securing the preservation of the peace, so as to give
to every citizen his free right to vote without molestation or
injury, when it assumes only to supervise the regulations made
by the State, and not to supersede them entirely? In our judg-
ment, there is no difference; and, if the power exists in the one
case, it exists in the other.
The next point raised is, that the act of Congress proposes to
operate on officers or persons authorized by State laws to perform
certain duties under them, and to require them to disobey and dis-
regard State laws when they come in conflict with the act of
Congress; that it thereby of necessity produces collision, and is
therefore void. This point has been already fully considered. We
have shown, as we think, that, where the regulations of Congress
conflict with those of the State, it is the latter which are void, and
not the regulations of Congress; and that the laws of the State,
in so far as they are inconsistent with the laws of Congress on
the same subject, cease to have effect as laws. . . .
The doctrine laid down at the close of counsel's brief, that the
State and national governments are co-ordinate and altogether
equal, on which their whole argument, indeed, is based, is only
partially true.
The true doctrine, as we conceive, is this, that whilst the States
are really sovereign as to all matters which have not been granted
to the jurisdiction and control of the United States, the Consti-
tution and constitutional laws of the latter are, as we have already
said, the supreme law of the land; and, when they conflict with
the laws of the States, they are of paramount authority and obli-
gation. This is the fundamental principle on which the author-
ity of the Constitution is based; and unless it be conceded in prac-
tice, as well as theory, the fabric of our institutions, as it was con-
templated by its founders, cannot stand. The questions involved
have respect not more to the autonomy and existence of the States,
582 CASES ON CONSTITUTIONAL LAW.
than to the continued existence of the United States as a govern-
ment to which every American citizen may look for security and
protection in every part of the land.
We think that the cause of commitment in these cases was law-
ful, and that the application for the writ of habeas corpus must
be denied.
Application denied.
MR. JUSTICE CLIFFORD and MR. JUSTICE FIELD dissented.
NOTE. Questions as to the relation of the Federal Govern-
ment and the States have arisen most frequently in connection
with the judicial power, taxation, and the regulation of com-
merce. On this point the cases included in chapters IV and
XIV should be consulted, as well as the following cases under
taxation (chap. II): McCulloch v. Maryland, Weston v. Charles-
ton, License Tax Cases, and The Collector v. Day. Under the
executive power see In re Neagle, and for a general discussion
see Barren v. Baltimore. Among the many valuable discussions
in periodicals the following are noteworthy: "The American
Commonwealth: Changes in Its Kelation to the Nation," by Prof.
John W. Burgess, Political Science Quarterly, I, 9 (1886); "Are
the States Equal Under the Constitution?" by Prof. Wm. A.
Dunning, Ibid., Ill, 425 (1888); "Recent Centralizing Tendencies
in the Supreme Court," by F. P. Powers, Ibid., V, 389 (1890);
"A New Nation," by H. R. Bailey, Harvard Law Review, IX, 309
(1895).
XIII. INTERNATIONAL RELATIONS. INDIAN AF-
FAIRS
In THE AMEBICAN INSURANCE COMPANY v. CAXTEB, 1 Peters,
511 (1828), CHIEF JUSTICE MAESHALL said:
"The course which, the argument has taken, will require that,
in deciding this question, the court should take into view the
relation in which Florida stands to the United States.
"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 terri-
tory, 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
occupation, 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 'territory becomes a part of the nation to which it is
annexed, either on the terms stipulated in the treaty of cession, or
on such as its new master shall impose. On such transfer of terri-
tory, it has never been held that the relations of the inhabitants
with each other undergo any change. Their relations with their
former sovereign are dissolved, and new relations are created be-
tween them and the government which has acquired their terri-
tory. The same act which transfers their country, transfers the
allegiance of those who remain in it; and the law, which may be
denominated political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals, re-
mains in force until altered by the newly created power of the
state.
"On the 2d of February, 1819, Spain ceded Florida to the United
States. The 6th article of the treaty of cession, 1 contains the fol-
lowing provision: "The inhabitants of the territories which his
Catholic Majesty cedes to the United States by this treaty, shall
be incorporated in the Union of the United States, as soon as may
i 8 Stats, at Large, 252.
583
584 CASES ON CONSTITUTIONAL LAW.
be consistent with the principles of the federal constitution, and
admitted to the enjoyment of the privileges, rights, and immunities
of the citizens of the United States."
"This treaty is the law of the land, and admits the inhabitants
of Florida to the enjoyment of the privileges, rights, and immu-
nities of the citizens of the United States. It is unnecessary to
inquire whether this is not their condition, independent of stipu-
lation. They do not, however, participate in political power; they
do not share in the government till Florida shall become a State.
In the meantime, Florida continues to be a territory of the United
States, governed by virtue of that clause in the constitution which
empowers congress "to make all needful rules and regulations re-
specting the territory or other property belonging to the United
States."
"Perhaps the power of governing a territory belonging to the
United States, which has not, by becoming a State, acquired the
means of self-government, may result necessarily from the facts
that it is not within the jurisdiction of any particular State, and
is within the power and jurisdiction of the United States. The
right to govern may be the inevitable consequence of the right to
acquire territory. Whichever may be the source whence the power
is derived, the possession of it is unquestioned. In execution of it,
congress, in 1822, passed "an act for the establishment of a terri-
torial government in Florida/' 2 and on the 3d of March, 1823,
passed another act to amend the act of 1822. Under "this act,
the territorial legislature enacted the law now under consideration.
THE CHEEOKEE NATION" v. THE STATE OF GEOKGIA.
5 Peters, 1. Decided 1831.
This was an original bill filed in this court by the Cherokee
Nation against the- State of Georgia, and also a supplemental bill
by the same complainant against the same defendant, upon which
the complainant moved for a subpoena to the State, and also for
a temporary injunction to restrain the State from enforcing the
laws of Georgia within the territory alleged to belong exclusively
to the complainants. As the decision of the court rested solely on
the ground of want of jurisdiction, it is not deemed necessary to
2 3 Stats, at Large, 654.
CHEROKEE NATION v. GEORGIA. 585
state the contents of the bills, any further than they bear on
that question.
The bill set forth the complainants to be "the Cherokee Nation
of Indians, a foreign state, not owing allegiance to the United
States, nor to any State of this Union, nor to any prince, poten-
tate, or state, other than their own."
"That from time immemorial, the Cherokee Nation have com-
posed a sovereign and independent state, and in this character have
been repeatedly recognized, and still stand recognized, by the
United States, in the various treaties subsisting between their
nation and the United States." And it proceeds to state when
these were made, and their substance, and shows how certain laws
of Georgia are repugnant thereto.
On the day appointed for the hearing, the counsel for the com-
plainants filed a supplemental bill, which states that since their
bill, now submitted, was drawn, acts, demonstrative of the deter-
mination of the State of Georgia to enforce her assumed authority
over the complainants and their territory, property, and jurisdic-
tion, have taken place, and it sets out those acts. . . .
No counsel appeared for the State of Georgia.
MAESHALL, C. J., delivered the opinion of the court.
This bill is brought by the Cherokee nation, praying an injunc-
tion to restrain the State of Georgia from the execution of certain
laws of that State, which, as is alleged, go directly to annihilate the
Cherokees as a political society, and to seize, for the use of Georgia,
the lands of the nation which have been assured to them by the
United States in solemn treaties repeatedly made and still in
force. . . .
Before we can look into the merits of the case, a preliminary in-
quiry presents itself. Has this court jurisdiction of the cause?
The 3d article of the constitution describes the extent of the
judicial power. The 2d section closes an enumeration of the cases
to which it is extended, with "controversies" "between a State or
the citizens thereof and foreign states, citizens, or subjects." A
subsequent clause of the same section gives the supreme court orig-
inal jurisdiction in all cases in which a State shall be a party.
The party defendant may, then, unquestionably be sued in this
court. May the plaintiff sue in it? Is the Cherokee nation a for-
eign state in the sense in which that term is used in the consti-
tution?
The counsel for the plaintiffs have maintained the affirmative
of this proposition with great earnestness and ability. So much
586 CASES ON CONSTITUTIONAL LAW.
of the argument as was intended to prove the character of the Cher-
okees as a state, as a distinct political society, separated from
others, capable of managing its own affairs and governing itself,
has, in the opinion of a majority of the judges, been completely
successful. They have been uniformly treated as a state from the
settlement of our country. The numerous treaties made by them
with the United States recognize them as a people capable of
maintaining the relations of peace and war, of being responsible in
their political character for any violation of their engagements, or
for any aggression committed on the citizens of the United States
by any individual of their community. Laws have been enacted
in the spirit of these treaties. The acts of our government plainly
recognize the Cherokee nation as a state, and the courts are bound
by those acts.
A question of much more difficulty remains. Do the Cherokees
constitute a foreign state in the sense of the constitution?
The counsel have shown conclusively that they are not a State
of the Union, and have insisted that individually they are aliens,
not owing allegiance to the United States. An aggregate of aliens
composing a state must, they say, be a foreign state. Each indi-
vidual being foreign, the whole must be foreign.
This argument is imposing, but we must examine it more closely
before we yield to it. The condition of the Indians in relation to
the United States is perhaps unlike that of any other two people in
existence. In the general, nations not owing a common allegiance
are foreign to each other. The term foreign nation is, with strict
propriety, applicable by either to the other. But the relation of
the Indians to the United States is marked by peculiar and cardinal
distinctions which exist nowhere else.
The Indian territory is admitted to form a part of the United
States. In all our maps, geographical treatises, histories, and laws,
it is so considered. In all our intercourse with foreign nations, in
our commercial regulations, in any attempt at intercourse between
Indians and foreign nations, they are considered as within the juris-
dictional limits of the United States, subject to many of those re-
straints which are imposed upon our own citizens. They acknowl-
edge themselves in their treaties to be under the protection of the
United States; they admit that the United States shall have the
sole and exclusive right of regulating the trade with them, and
managing all their affairs as they think proper; and the Chero-
kees in particular were allowed by the treaty of Hopewell, 1 which
preceded the constitution, "to send a deputy of their choice, when-
i 7 Statutes at Large, 18.
CHEROKEE NATION v. GEORGIA. 587
ever they think proper, to congress." Treaties were made with
some tribes by the. State of New York, under a then unsettled
construction of the confederation, by which they ceded all thei)
lands to that State, taking back a limited grant to themselves, ir
which they admit their dependence.
Though the Indians are acknowledged to have an unquestionable
and, therefore, unquestioned right to the land they occupy, unti
that right shall be extinguished by a voluntary cession to our gov-
ernment; yet it may be doubted whether those tribes which reside
within the acknowledged boundaries of the United States can, with
strict accuracy, be denominated foreign nations. They may, more
correctly, perhaps, be denominated domestic dependent nations.
They occupy a territory to which *we assert a title independent of
their will, which must take effect in point of possession when their
right of possession ceases. Meanwhile they are in a state of pupil-
age. Their relation to the United States resembles that of a ward
to his guardian.
They look to our government for protection; rely upon its kind-
ness and its power; appeal to it for relief to their wants; and ad-
dress the President as their great father. They and their country
are considered by foreign nations, as well as by ourselves, as being
so completely under the sovereignty of the United States, that any
attempt to acquire their lands, or to form a political connection
with them, would be considered by all as an invasion of our terri-
tory, and an act of hostility.
These considerations go far to support the opinion that the
framers of our constitution had not the Indian tribes in view, when
they opened the courts of the Union to controversies between a
State or the citizens thereof and foreign states.
In considering this subject, the habits and usages of the Indians,
in their intercourse with their white neighbors, ought not to be
entirely disregarded. At the time the constitution was framed,
the idea of appealing to an American court of justice for an asser-
tion of right or a redress of wrong, had, perhaps, never entered the
mind of an Indian or his tribe. Their appeal was to the tomahawk,
or -to the government. This was well understood by the statesmen
who framed the constitution of the United States, and might fur-
nish some reason for omitting to enumerate them among the par-
ties who might sue in the courts of the Union. Be this as it may,
the peculiar relations between the United States and the Indians
occupying our territory are such, that we should feel much difficulty
in considering them as designated by the term foreign state, were
there no other part of the constitution which might shed light on
588 CASES ON CONSTITUTIONAL LAW.
the meaning of these words. But we think that in construing
them, considerable aid is furnished by that clause in the 8th sec-
tion of the 1st article, which empowers congress to "regulate com-
merce with foreign nations, and among the several States, and with
the Indian tribes."
In this clause they are as clearly contradistinguished by a name
appropriate to themselves, from foreign nations, as from the sev-
eral States composing the Union. They are designated by a distinct
appellation; and as this appellation can be applied to neither of
the others, neither can the appellation distinguishing either of the
others be in fair construction applied to them. The objects, to
which the power of regulating commerce might be directed, are
divided into three distinct classes foreign nations, the several
States, and Indian tribes. When forming this article, the conven-
tion considered them as entirely distinct. \Ve cannot assume that
the distinction was lost in framing a subsequent article, unless
there be something in its language to authorize the assumption.
The counsel for the plaintiffs contend that the words "Indian
tribes" were introduced into the article empowering congress to
regulate commerce, for the purpose of removing those doubts in
which the management of Indian affairs was involved by the lan-
guage of the 9th article of the confederation. Intending to give
the whole power of managing those affairs to the government about
to be instituted, the convention conferred it explicitly, and omitted
those qualifications which embarrassed the exercise of it as granted
in the confederation. This may be admitted without weakening
the construction which has been intimated. Had the Indian tribes
been foreign nations, in the view of the convention, this exclusive
power of regulating intercourse with them might have been, and
most probably would have been, specifically given, in language
indicating that idea, not in language contradistinguishing them
from foreign nations. Congress might have been empowered "to
regulate commerce with foreign nations, including the Indian
tribes, and among the several States." This language would have
suggested itself to statesmen who considered the Indian tribes as
foreign nations, and were yet desirous of mentioning them par-
ticularly.
It has also been said that the same words have not necessarily
the same meaning attached to them when found in different parts
of the same instrument; their meaning is controlled by the con-
text. This is undoubtedly true. In common language, the same
word has various meanings, and the peculiar sense in which it is
used in any sentence is to be determined by the context. This may
CHEROKEE NATION v. GEORGIA. 589
not be equally true with respect to proper names. Foreign na-
tions, is a general term, the application of which to Indian tribes,
when used in the American constitution, is at best extremely
questionable. In one article, in which a power is given to be
exercised in regard to foreign nations generally, and to the Indian
tribes particularly, they are mentioned as separate in terms clearly
contradistinguishing 'them from each other. We perceive plainly
that the constitution, in this article, does not comprehend Indian
tribes in the general term "foreign nations;" not, we presume, be-
cause a tribe may not be a nation, but because it is not foreign to
the United States. When, afterwards, the term "foreign states"
is introduced, we cannot impute to the convention the intention
to desert its former meaning, and to comprehend Indian tribes
within it, unless the context force that construction upon us. We
find nothing in the context, and nothing in the subject of the arti-
cle, which leads to it.
The court has bestowed its best attention on this question, and,
after mature deliberation, the majority is of opinion that an Indian
tribe or nation within the United States is not a foreign state, in
the sense of the constitution, and cannot maintain an action in the
courts of the United States.
A serious additional objection exists -to the jurisdiction of the
court. Is the matter of the bill the proper subject for judicial
inquiry and decision ? It seeks to restrain a State from the forcible
exercise of legislative power over a neighboring people, asserting
their independence; their right to which the State denies. On
several of the matters alleged in the bill, for example on the laws
making it criminal to exercise the usual powers of self-government
in their own country by the Cherokee nation, this court cannot
interpose; at least in the form in which those matters are pre-
sented.
That part of the bill which respects the land occupied by the
Indians, and prays the aid of the court to protect their possession,
may be more doubtful. The mere question of right might,
perhaps, be decided by this court in a proper case with proper
parties. But the court is asked to do more than decide on the title.
The bill requires us to control the legislature of Georgia, and to
restrain the exertion of its physical force. The propriety of such
an interposition by the court may be well questioned. It savors
too much of the exercise of political power to be within the proper
province of the judicial department. But the opinion on the point
respecting parties, makes it unnecessary to decide this question.
If it be true that the Cherokee nation have rights, this is not
590 CASES ON CONSTITUTIONAL LAW.
the tribunal in which those rights are to be asserted. If it be true
that wrongs have been inflicted, and that still greater are to be
apprehended, this is not the tribunal which can redress the pa^t
or prevent the future.
The motion for an injunction is denied.
[JUSTICES JOHNSON and BALDWIN delivered long concurring
opinions. JUSTICE THOMPSON delivered a dissenting opinion, in
which JUSTICE STORY concurred.]
NOTE. "The political importance of the Cherokee case lay in
the fact that its result was the first successful nullification, in its
modern sense, of the laws of the United States." Alexander John-
ston in Lalor's Cyclopedia, I, 394.
WORCESTER v. THE STATE OF GEOEGIA.
6 Peters, 515. Decided 1832.
Error to the superior court for the county of Gwinnett in the
State of Georgia. . . . [The plaintiff in error, a missionary
from Vermont, residing within the limits of the Cherokee nation
by permission of the United States, was arrested and sentenced to
imprisonment under a law of the State of Georgia forbidding such
residence without a license from the State.]
MARSHALL, C. J., delivered the opinion of the court.
This cause, in every point of view in which it can be placed, is
of the deepest interest.
The defendant is a State, a member of the Union, which has
exercised the powers of government over a people, who deny its
jurisdiction, and are under the protection of the United States.
The plaintiff is a citizen of the State of Vermont, condemned to
hard labor for four years in the penitentiary of Georgia under color
of an act which he alleges to be repugnant to the constitution, laws
and treaties of the United States.
The legislative power of a State, the controlling power of the
constitution and laws of the United States, the rights, if they have
any, the political existence of a once numerous and powerful people,
the personal liberty of a citizen, are all involved in the subject now
to be considered. . . . [The first part of the opinion consists
WORCESTER v. GEORGIA. 591
of a consideration of the jurisdiction of the court and a discussion
of the relations of the Indian tribes with the governments of Great
Britain, the Colonies and the United States.]
The treaties and laws of the United States contemplate the In-
dian territory as completely separated from that of the States; and
provide that all intercourse with them shall be carried on ex-
clusively by the government of the Union.
Is this the rightful exercise of power, or is it usurpation?
While these States were colonies, this power, in its utmost ex-
tent, was admitted to reside in the crown. When our revolutionary
struggle commenced, congress was composed of an assemblage of
deputies acting under specific powers granted by the legislatures,
or conventions of the several colonies. It was a great popular
movement, not perfectly organized; nor were the respective pow-
ers of those who were intrusted with the management of affairs
accurately defined. The necessities of our situation produced a
general conviction that those measures which concerned all must
be transacted by a body in which the representatives of all were
assembled, and which could command the confidence of all: con-
gress, therefore, was considered as invested with all the powers of
war and peace, and congress dissolved our connection with the
mother country, and declared these united colonies to be independ-
ent States. Without any written definition of powers, they em-
ployed diplomatic agents to represent the United States at the
several courts of Europe; offered to negotiate treaties with them,
and did actually negotiate treaties with France. From the same
necessity, and on the same principles, congress assumed the man-
agement of Indian affairs; first in the name of these united col-
onies; and, afterwards, in the name of the United States. Early
attempts were made at negotiation, and to regulate trade with
them. These not proving successful, war was carried on under
the direction, and with the forces of the United States, and the
efforts to make peace, by treaty, were earnest and incessant. The
confederation found congress in the exercise of the same powers
of peace and war, in our relations with Indian nations, as with
those of Europe.
Such was the state of things when the confederation was adopted.
That instrument surrendered the powers of peace and war to con-
gress, and prohibited them to the States, respectively, unless a State
be actually invaded, "or shall have received certain advice of a
resolution being formed by some nation of Indians to invade such
State, and the danger is so imminent as not to admit of delay till
the United States in congress assembled can be consulted." This
592 CASES ON CONSTITUTIONAL LAW.
instrument also gave the United States in congress assembled the
sole and exclusive right of "regulating the trade and managing all
the affairs with the Indians, not members of any of the States:
provided, that the legislative power of any State within its own
limits be not infringed or violated."
The ambiguous phrases which follow the grant of power to the
United States were so construed by the States of North Carolina
and Georgia as to annul the power itself. The discontents and
confusion resulting from these conflicting claims, produced repre-
sentations to congress, which were referred to a committee, who
made their report in 1787. The report does not assent to the con-
struction of the two States, but recommends an accommodation,
by liberal cessions of territory, or by an admission, on their part,
of the powers claimed by congress. The correct exposition of this
article is rendered unnecessary by the adoption of our existing
constitution. That instrument confers on congress the powers of
war and peace; of making treaties, and of regulating commerce
with foreign nations, and among the several States, and with the
Indian tribes. These powers comprehend all that is required for
the regulation of our intercourse with the Indians. They are not
limited by any restrictions on their free actions. The shackles im-
posed on this power, in the confederation, are discarded.
The Indian nations had always been considered as distinct, in-
dependent political communities, retaining their original natural
rights, as the undisputed possessors of the soil, from time im-
memorial, with the single exception of that imposed by irresistible
power, which excluded them from intercourse with any other
European potentate than the first discoverer of the coast of the
particular region claimed: and this was a restriction which those
European potentates imposed on themselves, as well as on the In-
dians. The very term "nation," so generally applied to them,
means "a people distinct from others." The constitution, by de-
claring treaties already made, as well as those to be made, to be
the supreme law of the land, has adopted and sanctioned the pre-
vious treaties with the Indian nations, and consequently admits
their rank among those powers who are capable of making treaties.
The words "treaty" and "nation" are words of our own language,
selected in our diplomatic and legislative proceedings, by ourselves,
having each a definite and well-understood meaning. We have
applied them to Indians, as we have applied them to the other
nations of the earth. They are applied to all in the same sense.
Georgia, herself, has furnished conclusive evidence that her
former opinions on this subject concurred with those entertained
WORCESTER v. GEORGIA. 593
by her sister States, and by the government of the United States.
Various acts of her legislature have been cited in the argument, in-
cluding the contract of cession made in the year 1802, all tending
to prove her acquiescence in the universal conviction that the
Indian nations possessed a full right to the lands they occupied,
until that right should be extinguished by the United States, with
their consent; that their territory was separated from that of any
State within whose chartered limits they might reside, by a boun-
dary line, established by treaties; that, within their boundary, they
possessed rights with which no State could interfere; and that the
whole power of regulating the intercourse with them, was vested
in the United States. A review of these acts, on the part of
Georgia, would occupy too much time, and is the less necessary,
because they have been accurately detailed in the argument at the
bar. Her new series of laws, manifesting her abandonment of these
opinions, appears to have commenced in December, 1828.
In opposition to this original right, possessed by the undisputed
occupants of every country; to this recognition of that right,
which is evidenced by our history, in every change through which
we have passed; is placed the charters granted by the monarch of a
distant and distinct region, parcelling out a territory in possession
of others whom he could not remove and did not attempt to re-
move, and the cession made of his claims by the treaty of peace.
The actual state of things at the time, and all history since, ex-
plain these charters; and the king of Great Britain, at the treaty
of peace, could cede only what belonged to his crown. These
newly asserted titles can derive no aid from the articles so often
repeated in Indian treaties; extending to them, first, the protec-
tion of Great Britain, and afterwards that of the United States.
These articles are associated with others, recognizing their
title to self-government. The ve^ry fact of repeated treaties with
them recognizes it; and the settled doctrine of the law of nations
is, that a weaker power does not surrender its independence its
right of self-government, by associating with a stronger, and tak-
ing its protection. A weak state, in order to provide for its safety,
may place itself under the protection of one more powerful, with-
out stripping itself of the right of government, and ceasing to be
a state. Examples of this kincl are not wanting in Europe. "Trib-
utary and feudatory states," says Vattel, "do not thereby cease to
be sovereign and independent states, so long as self-government
and sovereign and independent authority are left in the admin-
istration of the state." At the present day, more than one state
38
594 CASES ON CONSTITUTIONAL LA\V.
may be considered as holding its right of self-government under
the guarantee and protection of one or more allies.
The Cherokee nation, then, is a distinct community, occupying
its own territory, with boundaries accurately described, in which
the laws of Georgia can have no force, and which the citizens of
Qsorgmjmve no right to enter, but with the assent QJLthe Chero-
kees themselves, or in conformity with treaties and with the acts
of congress. The whole intercourse between the United States
and this nation, is, by our constitution and laws, vested in the
government of the United States.
The act of the State of Georgia, under which the plaintiff in
error was prosecuted, is consequently void, and the judgment a
nullity. Can this court revise and reverse it?
If the objection to the system of legislation, lately adopted by
the legislature of Georgia, in relation to the Cherokee nation, was
confined to its extra-territorial operation, the objection, though
complete, so far as respected mere right, would give this court no
power over the subject. But it goes much further. If the review
which has been taken be correct, and we think it is, the acts of
Georgia are repugnant to the constitution, laws, and treaties of the
United States.
They interfere forcibly with the relations established between
the United States and the Cherokee nation, the regulation of
which, according to the settled principles of our constitution, are
committed exclusively to the government of the Union.
They are in direct hostility with treaties, repeated in a succes-
sion of years, which mark out the boundary that separates the
Cherokee country from Georgia, guarantee to them all the land
within their boundary, solemnly pledge the faith of the United
States to restrain their citizens from trespassing on it, and recog-
nize the pre-existing power of the nation to govern itself.
They are in equal hostility with the acts of congress for regu-
lating this intercourse, and giving effect to the treaties.
The forcible aeizura and abduction of the plaintiff in error, who
was residing in the nation with its permission, and by authority
of the President of the United States, is also a violation of the acts
which authorize the chief magistrate to exercise this authority.
Will ithese powerful considerations avail the plaintiff in error?
We think they will. He was seized, and forcibly carried away,
while under guardianship of treaties guaranteeing the country in
which he resided, and taking it under the protection of the United
States, He was seized while performing, under the sanction of the
chief magistrate of the Union, those duties which the humane
FONG YUE TING v. UNITED STATES. 595
policy adopted by congress had recommended. He was appre-
hended, tried, and condemned, under color of a law which has been
shown to be repugnant to the constitution, laws, and treaties of the
United States. Had a judgment, liable to the same objections,
been rendered for property, none would question the jurisdiction
of this court. It cannot be less clear when the judgment affects
personal liberty, and inflicts disgraceful punishment, if punish-
ment could disgrace when inflicted on innocence. The plaintiff
in error is not less interested in the operation of this unconstitu-
tional law than if it affected his property. He is not less entitled
to the protection of the constitution, laws, and treaties of his
country.
This point has been elaborately argued and, after deliberate
consideration, decided, in the case of Cohens v. The Common-
wealth of Virginia, 6 Wheat., 264.
It is the opinion of this court that the judgment of the superior
court _for the county of Gwinnett, in the State of Georgia, con-
demning Samuel A. Worcester to hard labor, in the penitentiary
of the State of Georgia, for four years, was pronounced by that
court under color of a law which is void, as being repugnant to the
constitution, treaties, and laws of the United States, and ought,
therefore, to be reversed and annulled.
[JUSTICES MCLEAN and WASHINGTON delivered concurring
opinions, and JUSTICE BALDWIN rendered a dissenting opinion.]
FONG YUE TING v. UNITED STATES.
WONG QUAN v. UNITED STATES.
LEE JOE v. UNITED STATES.
149 U. S., 698. Decided 1893.
These were three writs of habeas corpus, granted by the Circuit
Court of the United States, for the Southern District of New York,
upon petitions of Chinese laborers, arrested and held by the marshal
of the district for not having certificaites of residence, under section
6 of the act of May 5, 1892, c. 60, which is copied in the mar-
gin. . . .
Each petition alleged that the petitioner was arrested and de-
tained without due process of law, and that section 6 of the act of
596 CASES ON CONSTITUTIONAL LAW.
May 5, 1892, was unconstitutional and void. [The section com-
plained of required Chinese laborers within the limits of the
United States at the time of the passage of the act to take out
certificates of residence. Those who neglected to do so within one
year without good cause were made liable to deportation.]
In each case, the Circuit Court, after a hearing upon the writ
of habeas corpus and the return of the marshal, dismissed the writ
of habeas corpus, and allowed an appeal of the petitioner to this
court, and admitted him to bail pending the appeal. . . .
MR. JUSTICE GRAY, after stating the facts, delivered the opinion
of the court.
The general principles of public law which lie at the foundation
of these cases are clearly established by previous judgments of this
court, and by the authorities therein referred to.
In the recent case of Nishimura Ekiu v. United States, 142
U. S., 651, 659, the court, in sustaining the action of the execu-
tive department, putting in force an act of Congress for the ex-
clusion of aliens, said: "It is an accepted maxim of international
law, that every sovereign nation has the power, as inherent in sov-
ereignty, and essential to self-preservation, to forbid the entrance
of foreigners within its dominions, or to admit them only in such
cases and upon such conditions as it may see fit to prescribe. In
the United States, this power is vested in the national government,
to which the Constitution has committed the entire control of inter-
national relations, in peace as well as in war. It belongs to the
political department of the government, and may be exercised
either through treaties made by the President and Senate, or
through statutes enacted by Congress."
The same views were more fully expounded in the earlier case
of Chae Chan Ping v. United States, 130 U. S., 581, in which the
validity of a former act of Congress, excluding Chinese laborers
from the United States, under the circumstances therein stated,
was affirmed.
In the elaborate opinion delivered by Mr. Justice Field, in behalf
of the court, it was said: "Those laborers are not citizens of the
United States; they are aliens. That the government of the
United States, through the action of the legislative department,
can exclude aliens from its territory is a proposition which we do
not think open to controversy. Jurisdiction over its own territory
to that extent is an incident of every independent nation. It is
a part of its independence. If it could not exclude aliens, it would
be to that extent subject to the control of another power." "The
FONG YUE TING v. UNITED STATES. 597
United States, in their relation to foreign countries and their
subjects or citizens, are one nation, invested with powers which
belong to independent nations, the exercise of which can be
invoked for the maintenance of its absolute independence and se-
curity throughout its entire territory." 130 U. S., 603, 604.
It was also said, repeating the language of Mr. Justice Bradley
in Knox v. Lee, 12 Wall., 457, 555: "The United States is not
only a government, but it is a national government, and the only
government in this country that has the character of nationality.
It is invested with power over all the foreign relations of the
country, war, peace, and negotiations and intercourse with other
nations; all of which are forbidden to the state governments."
130 U. S., 605. And it was added: "For local interests the
several States of the Union exist; but for international purposes,
embracing our relations with foreign nations, we are but one peo-
ple, one nation, one power." 130 U. S., 606.
The court then went on to say: "To preserve its independence,
and give security against foreign aggression and encroachment, is
the highest duty of every nation, and to attain these ends nearly
all other considerations are to be subordinated. It matters not in
what form such aggression and encroachment come, whether from
the foreign nation acting in its national character, or from vast
hordes of its people crowding in upon us. The government, pos-
sessing the powers which are to be exercised for protection and
security, is clothed with authority to determine the occasion on
which the powers shall be called forth; and its determination, so
far as the subjects affected are concerned, is necessarily conclusive
upon all its departments and officers. If, therefore, the govern-
ment of the United States, through its legislative department,
considers the presence of foreigners of a different race in this
country, who will not assimilate with us, to be dangerous to its
peace and security, their exclusion is not to be stayed because at
the time there are no actual hostilities with the nation of which
the foreigners are subjects. The existence of war would render
the necessity of the proceeding only more obvious and pressing.
The same necessity, in a less pressing degree, may arise when war
does not exist, and the same authority which adjudges the neces-
sity in one case must also determine it in the other. In both cases,
its determination is conclusive upon the judiciary. If the gov-
ernment of the country of which the foreigners excluded are sub-
jects is dissatisfied with this action, it can make complaint to the
executive head of our government, or resort to any other measures
which, in its judgment, its interests or dignity may demand; and
598 CASES ON CONSTITUTIONAL, LAW.
there lies its only remedy. The power of the government to ex-
clude foreigners from the country, whenever, in its judgment, the
public interests require such exclusion, has been asserted in re-
peated instances, and never denied by the executive or legislative
departments." 130 U. S., 606, 607. This statement was sup-
ported by many citations from the diplomatic correspondence of
successive Secretaries of State, collected in Wharton's Interna-
tional Law Digest, 206.
The right of a nation to expel or deport foreigners, who have
not been naturalized or taken any steps towards becoming citizens
of the country, rests upon the same grounds, and is as absolute and
unqualified as the right to prohibit and prevent their entrance into
the country.
This is clearly affirmed in dispatches referred to by the court
in Chae Chan Ping's Case. In 1856, Mr. Marcy wrote: "Every
society possesses the undoubted right to determine who shall com-
pose its members, and it is exercised by all nations, both in peace
and war. A memorable example of the exercise of this power in
time of peace was the passage of -the alien law of the United States
in the year 1798." In 1869, Mr. Fish wrote: "The control of the
people within its limits, and the right to expel from its territory
persons who are dangerous to the peace of the State, are (too clearly
within the essential attributes of sovereignty to be seriously con-
tested." Wharton's International Law Digest, 206; 130 U. S.,
607. . .
The right to exclude or to expel all aliens, or any class of aliens,
absolutely or upon certain conditions, in war or in peace, being an
inherent and inalienable right of every sovereign and independent
nation, essential to its safety, its independence, and its welfare,
the question now before the court is whether the manner in which
Congress has exercised this right in sections 6 and 7 of the act of
1892 is consistent with the Constitution.
The United States are a sovereign and independent nation, and
are vested by the Constitution with the entire control of interna-
tional relations, and with all the powers of government necessary
to maintain that control and to make it effective. The only gov-
ernment of this country, which other nations recognize or treat
with, is the government of the Union; and the only American
flag known throughout the world is the flag of the United States.
The Constitution of the United States speaks with no uncertain
sound upon this subject. That instrument, established by the
people of the United States as the fundamental law of the land,
has conferred upon the President the executive power; has made
FONG YUE TING v. UNITED STATES. 599
him the commander-in-chief of the army and navy; has author-
ized him, by and with the consent of the Senate, to make treaties,
and to appoint ambassadors, public ministers, and consuls; and
has made it his duty to take care that the laws be faithfully exe-
cuted. The Constitution has granted to Congress the power to
regulate commerce with foreign nations, including the entrance
of ships, the importation of goods, and the bringing of persons
into the ports of the United States; to establish a uniform rule of
naturalization; to define and punish piracies and felonies com-
mitted on the high seas, and offenses 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, to provide and maintain a navy, and to make rules for the
government and regulation of the land and naval forces; and to
make all laws necessary and proper for carrying into execution
these powers, and all other powers vested by the Constitution in
the government of the United States, or in any department or
officer thereof. And the several States are expressly forbidden to
enter into any treaty, alliance, or confederation; to grant letters
of marque and reprisal; to enter into any agreement or compact
with another State, or with a foreign power; or to engage in war,
unless actually invaded, or in such imminent danger as will not
admit of delay.
In exercising the great power which the people of the United
States, by establishing a written constitution as the supreme and
paramount law, have vested in this court, of determining, when-
ever the question is properly brought before it, whether the acts
of the legislature or of the executive are consistent with the Con-
stitution, it behooves the court to be careful that it does not under-
take to pass upon political questions, the -final decision of which
has been committed by the Constitution to the other departments
of the government.
As long ago said by Chief Justice Marshall, and since constantly
maintained by this court: "The sound construction of the Con-
stitution must allow to the national legislature that discretion, with
respect to the means by which the powers it confers are to be car-
ried into execution, 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 legitimate, let it be within the scope of
ithe Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist-
ent with the letter and spirit of the Constitution, are constitu-
tional." "Where the law is not prohibited, and is really calculated
600 CASES ON CONSTITUTIONAL LAW.
to effect any of the objects intrusted to the government, to under-
take here to inquire into the degree of its necessity would be to
pass the line which circumscribes the judicial department, and to
tread on legislative ground. This court disclaims all pretensions
to such a power." McCulloch v. Maryland, 4 Wheat., 316, 421,
423; Juilliard v. Greenman, 110 U. S., 421, 440, 450; Ex parte
Yarbrough, 110 U. S., 651, 658; In re Rapier, 143 U. S., 110,
134; Logan v. United States, 144 U. S., 263, 283.
The power to exclude or to expel aliens, being a power affecting
international relations, is vested in the political departments of
the government, and is to be regulated by treaty or by act of Con-
gress, and to be executed by the executive authority according to
the regulations so established, except so far as the judicial depart-
ment has been authorized by treaty or by statute, or is required by
the paramount law of the Constitution, to intervene.
In Nishimura Ekiu's Case, it was adjudged that, although Con-
gress might, if it saw fit, authorize the courts to investigate and
ascertain the facts upon which the alien's right to land was made
by the statutes to depend, yet Congress might intrust the final
determination of those facts to an executive officer, and that, if it
did so, his order was due process of law, and no other tribunal,
unless expressly authorized by law to do so, was at liberty to re-
examine the evidence on which he acted, or to controvert its suf-
ficiency. 142 U. S., 660.
The power to exclude aliens and the power to expel them rest
upon one foundation, are derived from one source, are supported
by the same reasons, and are in truth but parts of one and the
same power.
The power of Congress, therefore, to expel, like the power to
exclude aliens, or any specified class of aliens, from the country,
may be exercised entirely through executive officers; or Congress
may call in the aid of the judiciary to ascertain any contested facts
on which an alien's right to be in the country has been made by
Congress to depend.
Congress, having the right, as it may see fit, to expel aliens of a
particular class, or to permit them to remain, has undoubtedly the
right to provide a system of registration and identification of the
members of that class within the country, and to take all proper
means to carry out the system which it provides. . . .
In our jurisprudence, it is well settled that the provisions of an
act of Congress, passed in the exercise of its constitutional author-
ity, on this, as on any other subject, if clear and explicit, must be
upheld by the courts, even in contravention of express stipulations
FONG YUE TING v. UNITED STATES. 601
in an earlier treaty. As was said by this court in Chae Chan
Ping's Case, following previous decisions: "The treaties were of
no greater legal obligation than the act of Congress. By the Con
stitution, laws made in pursuance thereof and treaties made unde/
the authority of the United States are both declared to be th
supreme law of the land, and no paramount authority is given tc
one over the other. A treaty, it is true, is in its nature a contraci
between nations, and is often merely promissory in its character
requiring legislation to carry its stipulations into effect. Sucb
legislation will be open to future repeal or amendment. If the
treaty operates by its own force, and relates to a subject within the
power of Congress, it can be deemed in that particular only the
equivalent of a legislative act, to be repealed or modified at the
pleasure of Congress. In either case, the last expression of the
sovereign will must control." "So far as a treaty nmde by the
United States with any foreign nation can become the subject
of judicial cognizance in the courts of this country, it is subject
to such acts as Congress may pass for its enforcement, modifica-
tion, or repeal." 130 U. S., 600. See also Foster v. Neilson, 2
Pet, 253, 314; Edye v. Kobertson, 112 U. S., 580, 597-599; Whit-
ney v. Kobertson, 124 U. S., 190.
By the supplementary act of October 1, 1888, c. 1064, it was
enacted, in section 1, that "from and after the passage of this act,
it shall be unlawful for any Chinese laborer, who shall at any
time heretofore have been, or who may now or hereafter be, a
resident within the United States, and who shall have departed or
shall depart therefrom, and shall not have returned before the
passage of this act, to return to, or remain in, the United States;"
and in section 2, that "no certificates of identity, provided for in
the fourth and fifth sections of the act to which this is a supple-
ment, shall hereafter be issued; and every certificate heretofore
issued in pursuance thereof is hereby declared void and of no effect,
and the Chinese laborer claiming admission by virtue thereof shall
not be permitted to enter the United States." 25 Stat., 504.
. . . [Here follows a statement and discussion of Chae Chan
Ping v. United States, 130 U. S., 581.]
By the law of nations, doubtless, aliens residing in a country,
with the intention of making it a permanent place of abode, ac-
quire, in one sense, a domicil there; and, while they are per-
mitted by the nation to retain such a residence and domicil, are
subject to its laws, and may invoke its protection against other
nations. This is recognized by those publicists who, as has been
seen, maintain in the strongest terms the right of the nation to
602 CASES ON CONSTITUTIONAL LAW.
expel any or all aliens at its pleasure. Vattel, lib. 1, c. 19 213;
1 Phillimore, c. 18 321; Mr. Marcy, in Koszta's Case, Wharton's
International Law Digest, 198. See also Lau Ow Bew v. United
States, 144 U. S., 47, 62; Merlin, Kepertoire de Jurisprudence,
Domicile, 13, quoted in the case, above cited, of In re Adam, 1
Moore, P, C., 460, 472, 473.
Chinese laborers, therefore, like all other aliens residing in the
United States for a shorter or longer time, are entitled, so long as
they are permitted by the government of the United States to
remain in the country, to the safeguards of the Constitution, and
to the protection of the laws, in regard to their rights of person
and of property, and to their civil and criminal responsibility.
But they continue to be aliens, having taken no steps towards be-
coming citizens, and incapable of becoming such under the natural-
ization laws; and therefore remain subject to the power of Congress
to expel them, or to order them to be pemoved and deported from
the country, whenever in its judgment their removal is necessary
or expedient for the public interest. . . .
The question whether, and upon what conditions, these aliens
shall be permitted to remain within the United States being one
to be determined by the political departments of the government,
the judicial department cannot properly express an opinion upon
the wisdom, the policy or the justice of the measures enacted .by
Congress in the exercise of the powers confided to it by the Con-
stitution over this subject.
Upon careful consideration of the subject, the only conclusion
which appears to us to be consistent with the principles of inter-
national law, with the Constitution and laws of the United States,
and with the previous decisions of this court, is that in each of
these cases the judgment of the Circuit Court, dismissing the writ
of habeas corpus, is right and must be Affirmed.
[CHIEF JUSTICE FULLER, JUSTICE BEEWEE, and JUSTICE FIELD
rendered dissenting opinions.]
XIV. JURISDICTION OF THE FEDERAL COURTS.
CIIISHOLM, EXECUTOR, v. GEORGIA.
2 Dallas, 419. Decided 1793.
[Chisholm, executor, brought an action of assumpsit against the
State of Georgia. Return having been made, Attorney-General
Randolph moved that unless the State of Georgia should cause an
appearance to be made in its behalf, judgment should be entered
against the said State and a writ of inquiry of damages be awarded.
When the case came before the court for consideration, the counsel
for the State of Georgia made a protest in writing against the
court's taking jurisdiction of the case, but declined to take any part
in arguing the question. The judges delivered their opinions
seriatim. ]
WILSON, J. This is a case of uncommon magnitude. One of
the parties to it is a State; certainly respectable, claiming to be
sovereign. The question to be determined is, whether this State,
so respectable, and whose claim soars so high, is amenable to the
jurisdiction of the Supreme Court of the United States? This
question, important in itself, will depend on others more impor-
tant still; and may perhaps be ultimately resolved into one no
less radical than this "Do the people of the United States form
a Nation?"
A cause so conspicuous and interesting, should be carefully and
accurately viewed from every possible point of sight. I shall exam-
ine it, 1st. By the principles of general jurisprudence. 2d. By
the laws and practice of particular states and kingdoms. From the
law of nations little or no illustration of this subject can be
expected. By that law the several states and governments spread
over our globe are considered as forming a society, not a nation.
It has only been by a very few comprehensive minds, such as those
of Elizabeth and the Fourth Henry, that this last great idea has
been even contemplated. 3dly, and chiefly, I shall examine the
important question before us, by the constitution of the United
603
604 CASES ON CONSTITUTIONAL LAW.
States, and the legitimate result of that valuable instrument.
III. I am, thirdly and chiefly, to examine the important ques-
tion now before us, by the constitution of the United States, and
the legitimate result of that valuable instrument. Under this view
the question is naturally subdivided into two others. 1. Could
the constitution of the United States vest a jurisdiction over the
State of Georgia? 2. Has that constitution vested such jurisdic-
tion in this court? . . .
Concerning the prerogative of kings, and concerning the sover-
eignty of States, much has been said and written; but little has
been said and written concerning a subject much more dignified
and important, the majesty of the people. . . . The well-
known address used by Demosthenes, when he harangued and
animated his assembled countrymen, was, "0 men of Athens."
With the strictest propriety, therefore, classical and political, our
national scene opens with the most magnificent object which the
nation could present. "The people of the United States" are the
first personages introduced. Who were those people? They were
the citizens of thirteen States, each of which had a separate con-
stitution and government, and all of which were connected to-
gether by articles of confederation. To the purposes of public
strength and felicity that confederacy was totally inadequate. A
requisition on the several States terminated its legislative author-
ity; executive or judicial authority it had none. In order, there-
fore, to form a more perfect union, to establish justice, to insure
domestic tranquillity, to provide for the common defense, and to
secure the blessings of liberty, those people, among whom were
the people of Georgia, ordained and established the present con-
stitution. By that constitution legislative power is vested, execu-
tive power is vested, judicial power is vested.
The question now fairly opens to our view, could the people
of those States, among whom were those of Georgia, bind those
States, and Georgia among the others, by the legislative, execu-
tive, and judicial power so vested? If the principles on which I
have founded myself are just and true, this question must, un-
avoidably, receive an affirmative answer. If those States were the
work of those people, those people, and that I may apply the case
closely, the people of Georgia, in particular, could alter, as they
pleased, their former work; to any given degree, they could dimin-
ish as well as enlarge it. Any or all of the former State powers
they could extinguish or transfer. The inference which necessarily
results is, that the constitution ordained and established by those
CHISHOLM, EXECUTOR, v. GEORGIA. 605
people, and still closely to apply the case, in particular by the
people of Georgia, could vest jurisdiction or judicial power over
those States and over the State of Georgia in particular.
The next question under this head, is, Has the constitution
done so? Did those people mean to exercise this their undoubted
power? These questions may be resolved, either by fair and con-
clusive deductions, or by direct and explicit declarations. In order,
ultimately to discover whether the people of the United States
intended to bind those States by the judicial power vested by
the national constitution, a previous inquiry will naturally be, did
those people intend to bind those States by the legislative power
vested by that constitution? The articles of confederation, it is
well known, did not operate upon individual citizens; but oper-
ated only upon States. This defect was remedied by the national
constitution, which, as all allow, has an operation on individual
citizens. But if an opinion, which some seem to entertain, be just,
the defect remedied on one side was balanced by a defect intro-
duced on the other; for they seem to think that the present con-
stitution operates only on individual citizens, and not on States.
This opinion, however, appears to be altogether unfounded. When
certain laws of the States are declared to be "subject to the revision
and control of the Congress," 1 it cannot, surely, be contended that
the legislative power of the national government was meant to have
no operation on the several States. The fact uncontrovertibly
established in one instance, proves the principle in all other in-
stances to which the facts will be found to apply. We may then
infer that the people of the United States intended to bind the
several States by the legislative power of the national govern-
ment.
In order to make the discovery, at which we ultimately aim, a
second previous inquiry will naturally be, Did the people of the
United States intend to bind the several States by the executive
power of the national government? The affirmative answer to the
former question directs, unavoidably, an affirmative answer to this.
Ever since the time of Bracton, his maxim, I believe, has been
deemed a good one "Supervacuum esset leges condere, nisi esset
qui leges tueretur. " 2 "It would be superfluous to make laws, unless
those laws, when made, were to be enforced." When the laws
are plain, and the application of them is uncontro verted, they are
enforced immediately by the executive authority of government.
When the application of them is doubtful or intricate, the inter-
i Art. 1, s. 10. 2 1 Brae., 107.
606 CASES ON CONSTITUTIONAL LAW.
position of the judicial authority becomes necessary. The same
principle, therefore, which directed us from the first to the second
step, will direct us to the third and last step of our deduction.
Fair and conclusive deduction, then, evinces that the people of
the United States did vest this court with jurisdiction over the
State of Georgia. The same truth may be deduced from the
declared objects and the general texture of the constitution of
the United States. One of its declared objects is, to form a union
more perfect than, before that time, had been formed. Before
that time the Union possessed legislative, but unenforced legisla-
tive power over the States. Nothing could be more natural than
to intend that this legislative power should be enforced by powers
executive and judicial. Another declared object is "to establish
justice." This points, in a particular manner, to the judicial au-
thority. And when we view this object in conjunction with the
declaration, "that no State shall pass a law impairing the obliga-
tion of contracts," we shall probably think that this object points,
in a particular manner, to the jurisdiction of the court over the
several States. What good purpose could this constitutional pro-
vision secure if a State might pass a law impairing the obligation
of its own contracts, and be amenable, for such a violation of right,
to no controlling judiciary power? We have seen, that on princi-
ples of general jurisprudence, a State, for the breach of a con-
tract, may be liable for damages. A third declared object is, "to
insure domestic tranquillity." This tranquillity is most likely to
be disturbed by controversies between States. These consequences
will be most peaceably and effectually decided by the establishment
and by the exercise of a superintending judicial authority. By
such exercise and establishment, the law of nations the rule be-
tween contending States will be enforced among the several
States in the same manner as municipal law.
Whoever considers, in a combined and comprehensive view, the
general texture of the constitution, will be satisfied that the people
of the United States intended to form themselves into a nation
for national purposes. They instituted, for such purposes, a na-
tional government complete in all its parts, with powers legisla-
tive, executive and judiciary; and in all those powers extending
over the whole nation. Is it congruous that, with regard to
such purposes, any man or body of men, any person, natural or
artificial, should be permitted to claim successfully an entire ex-
emption from the jurisdiction of the national government? Would
not such claims, crowned with success, be repugnant to our very
existence as a nation? When so many trains of deduction, coming
CHISHOLM, EXECUTOR, v. GEORGIA. 607
from different quarters, converge and unite at last in the same
point, we may safely conclude, as the legitimate result of this con-
stitution, that the State of Georgia is amenable to the jurisdic-
tion of this court.
But, in my opinion, this doctrine rests not upon the legitimate
result of fair and conclusive deduction from the constitution; it
is confirmed, beyond all doubt, by the direct and explicit declara-
tion of the constitution itself. "The judicial power of the United
States shall extend to controversies between two States." 1 Two
States are supposed to have a controversy between them; this
controversy is supposed to be brought before those vested with
the judicial power of the United States; can the most consum-
mate degree of professional ingenuity devise a mode by which
this "controversy between two States" can be brought before a
court of law, and yet neither of those States be a defendant? "The
judicial power of the United States shall extend to controversies
between a State and citizens of another State." Could the strictest
legal language; could even that language which is peculiarly
appropriated to an act, deemed by a great master to be one of
the most honorable, laudable, and profitable things in our law;
could this strict and appropriated language describe with more
precise accuracy the cause now depending before the tribunal?
Causes, and not parties to causes, are weighed by justice in her
equal scales; on the former, solely, her attention is fixed; to the
latter she is, as she is painted, blind.
I have now tried this question by all the touchstones to which
I proposed to apply it. I have examined it by the principles of
general jurisprudence; by the laws and practice of States and
kingdoms; and by the constitution of the United States. From
all, the combined inference is, that the action lies.
CUSHIXG, J. The grand and principal question, in this
case, is whether a State can, by the federal constitution, be
sued by an individual citizen of another State. The point turns
not upon the law or practice of England, although perhaps it may
be in some measure elucidated thereby, nor upon the law of any
other country whatever; but upon the constitution established by
the people of the United States; and particularly upon the extent
of powers given to the federal judiciary in the 3d section of the 3d
article of the constitution. It is declared that "the judicial power
shall extend to all cases in law and equity arising under the con-
stitution, the laws of the United States, or treaties made or which
shall be made under their authority: to all cases affecting ambassa-
i Art. 3, s. 2.
608 CASES ON CONSTITUTIONAL LAW.
dors or other public ministers and consuls; to all cases of ad-
miralty and maritime jurisdiction; to controversies to which the
United States shall be a party; to controversies between two or
more States, and citizens of another State; between citizens of dif-
ferent States; between citizens of the same States claiming lands
under grants of different State's; and between a State and citizens
thereof and foreign States, citizens or subjects." The judicial
power, then, is expressly extended to "controversies between a State
and citizens of another State." When a citizen makes a demand
against a State of which he is not a citizen, it is as really a con-
troversy between a State and a citizen of another State, as if such
State made a demand against such citizen. The case then seems
clearly to fall within the letter of the constitution. It may be
suggested that it could not be intended to subject a State to be
a defendant, because it would affect the sovereignty of States. If
that be the case, what shall we do with the immediate preceding
clause: "controversies between two or more States," where a State
must of necessity be a defendant? If it was not the intent, in the
very next clause also, that a State might be made defendant, why
was it so expressed as naturally to lead to and comprehend that
idea? Why was not an exception made if one was intended?
Again, what are we to do with the last clause of the section of
judicial powers, namely, "controversies between a State or the citi-
zens thereof and foreign States or citizens"? Here, again, States
must be suable or liable to be made defendants by this clause,
which has a similar mode of language with the two other clauses
I have remarked upon. For if the judicial power extends to a
controversy between one of the United States and a foreign State,
as the clause expresses, one of them must be defendant. And then
what becomes of sovereignty of States, as far as suing affects it?
But although the words appear reciprocally to affect the State
here and a foreign State, and put them on the same footing as far
as may be, yet ingenuity may say that the State here may sue,
but cannot be sued; but that the foreign State may be sued, but
cannot sue. We may touch foreign sovereignties, but not our own.
But I conceive the reason of the thing as well as the words of
the constitution, tend to show that the federal judicial power
extends to a suit brought by a foreign State, against any one of the
United States. One design of the general government was for
managing the great affairs of peace and war, and the general de-
fense, which were impossible to be conducted by the States sep-
arately. Incident to these powers, and for preventing controversies
between foreign powers, or citizens from rising to extremities and
CHISHOLM, EXECUTOR, v. GEORGIA. 609
to an appeal to the sword, a national tribunal was necessary, amic-
ably, to decide them, and thus ward off such fatal public calamity.
Thus States at home and their citizens, and foreign States and their
citizens, are put together without distinction upon the same footing,
as far as may be, as to controversies between them. So also with
respect to controversies between a State and citizens of another
State at home, comparing all the clauses together the remedy is re-
ciprocal; the claim to justice equal. As controversies between State
and State, and between a State and citizens of another State
might tend gradually to involve States in war and bloodshed, a
disinterested civil tribunal was intended to be instituted to decide
such controversies, and preserve peace and friendship. Further:
if a State is entitled to justice in the federal court, against a cit-
izen of another State, why not such citizen against the State,
when the same language equally comprehends both? The rights
of individuals and the justice due to them are as dear and pre-
cious as those of States. Indeed the latter are founded upon
the former, and the great end and object of them must be to secure
and support the rights of individuals, or else vain is government.
But still it may be insisted that this will reduce States to mere
corporations, and take away all sovereignty. As to corporations,
all States whatever are corporations or bodies politic. The only
question is, what are their powers? As to individual States and
the United States, the constitution marks the boundary of powers.
Whatever power is deposited with the Union by the people for
their own necessary security, is so far a curtailing of the power and
prerogatives of the States. This is, as it were, a self-evident prop-
osition; at least it cannot be contested. Thus the power of de-
claring war, making peace, raising and supporting armies for public
defense, levying duties, excises, and taxes, if necessary, with many
other powers, are lodged in Congress, and are a most essential
abridgement of State sovereignty. Again, the restrictions upon
the States. "No State shall enter into any treaty, alliance, or
confederation, coin money, emit bills of credit, make anything but
gold and silver a tender in payment of debts, pass any law impair-
ing the obligation of contracts; these, with a number of others,
are important restrictions of the power of States, and were thought
necessary to maintain the Union, and to establish some funda-
mental uniform principles of public justice throughout the whole
Union. So that I think no argument of force can be taken from
{he sovereignty of States. Where it has been abridged, it was
thought necessary for the greater indispensable good of the whole.
If the constitution is found inconvenient in practice in this or
39
610 CASES ON CONSTITUTIONAL LAW.
any other particular, it is well that a regular mode is pointed
out for amendment. But while it remains, all offices, legislative,
executive, and judicial, both of the States and of the Union, are
bound by oath to support it.
One other objection has been suggested; that if a State may be
sued by a citizen of another State, then the United States may
be sued by a citizen of any one of the States, or, in other words,
by any of their citizens. If this be a necessary consequence, it
must be so. I doubt the consequence from the different word-
ing of the different clauses, connected with other reasons. When
speaking of the United States, the constitution says, "controversies
to which the United States shall be a party," not controversies
between the United States and any of their citizens. When speak-
ing of States, it says, "controversies between two or more States,
between a State and citizens of another State." As to reasons for
citizens suing a different State which do not hold equally good
for suing the United States, one may be, that as controversies
between a State and citizens of another State might have a ten-
dency to involve both States in contest, and perhaps in war, a
common umpire to decide such controversies may have a tendency
to prevent the mischief. That an object of this kind was had
in view by the framers of the constitution, I have no doubt, when
I consider the clashing interfering laws which were made in the
neighboring States before the adoption of the constitution, and
some affecting the property of citizens of another State in a very
different manner from that of their own citizens. But I do not
think it necessary to enter fully into the question, whether the
United States are liable to be sued by an individual citizen, in
order to decide the point before us. Upon the whole, I am of
opinion that the constitution warrants a suit against a State by
an individual citizen of another State. . . .
JAY, C. J. . . . Let us now proceed to inquire whether
Georgia has not, by being a party to the national com-
pact, consented to be suable by individual citizens of another
State. This inquiry naturally leads our attention, 1st. To the
design of the constitution. 2d. To the letter and express declara-
tion in it.
Prior to the date of the constitution, the people had not any na-
tional tribunal to which they could resort for justice; the dis-
tribution of justice was then confined to State judicatories, in
whose institution and organization the people of the other States
had no participation, and over whom they had not the least con-
CHISHOLM, EXECUTOR, v. GEORGIA. 611
trol. There was then no general court of appellate jurisdiction
by whom the errors of State courts, affecting either the nation at
large or the citizens of any other State, could be revised and
corrected. Each State was obliged to acquiesce in the measure of
justice which another State might yield to her or to her citizens;
and that even in cases where State considerations were not al-
ways favorable to the most exact measure. There was danger
that from this source animosities would in time result; and as the
transition from animosities to hostilities was frequent in the his-
tory of independent States, a common tribunal for the termina-
tion of controversies became desirable, from motives both of jus-
tice and of policy.
Prior also to that period the United States had, by taking a
place among the nations of the earth, become amenable to the
laws of nations, and it was their interest as well as their duty
to provide that those laws should be respected and obeyed; in
their national character and capacity the United States were re-
sponsible to foreign nations for the conduct of each State, relative
to the laws of nations, and the performance of treaties; and there
the inexpediency of referring all such questions to State courts,
and particularly to the co-urts of delinquent States, became appar-
ent. While all the States were bound to protect each and the
citizens of each, it was highly proper and reasonable that they
should be in a capacity not only to cause justice to be done to
each, and the citizens of each, but also to cause justice to be done
by each, and the citizens of each, and that, not by violence and
force, but in a stable, sedate, and regular course of judicial pro-
cedure.
These were among the evils against which it was proper for the
nation, that is, the people of all the United States, to provide
by a national judiciary, to be instituted by the whole nation,
and to be responsible to the whole nation.
Let us now turn to the constitution. The people therein declare
that their design in establishing it comprehended six objects. 1st.
To form a more perfect union. 2d. To establish justice. 3d.
To insure domestic tranquillity. 4th. To provide for the com-
mon defense. 5th. To promote the general welfare. 6th. To
secure the blessings of liberty to themselves and their posterity.
It may be asked, what is the precise sense and latitude in which
the words "to establish justice," as here used, are to be under-
stood? The answer to this question will result from the provi-
sions made in the constitution on this head. They are specified
612 CASES ON CONSTITUTIONAL LAW.
in the second section of the third article, where it is ordained
that the judicial power of the United States shall extend to ten
descriptions of cases, namely: 1st. To all cases arising under this
constitution; because the meaning, construction, and operation of
a compact ought always to he ascertained hy all the parties, or by
authority derived only from one of them. 2d. To all cases arising
under the laws of the United States; because as such laws, con-
stitutionally made, are obligatory on each State, the measure of
obligation and obedience ought not to be decided and fixed by the
party from whom they are due, but by a tribunal deriving author-
ity from both the parties. 3d. To all cases arising under treaties
made by their authority; because, as treaties are compacts made
by, and obligatory on the whole nation, their operation ought not
to be affected or regulated by the local laws or courts of a part
of the nation. 4th. To all cases affecting ambassadors, or other
public ministers and consuls; because, as these are officers of
foreign nations, whom this nation are bound to protect and treat
according to the laws of nations, cases affecting them ought only
to be cognizable by national authority. 5th. To all cases of
admiralty and maritime jurisdiction; because, as the seas are
the joint property of nations, whose right and privileges relative
thereto are regulated by the laws of nations and treaties, such cases
necessarily belong to national jurisdiction. 6th. To controversies
to which the United States shall be a party; because, in cases
in which the whole people are interested it would not be equal
or wise to let any one State decide and measure out the justice
due to others. 7th. To controversies between two or more States;
because domestic tranquillity requires that the contentions of
States should be peaceably terminated by a common judicatory;
and, because, in a free country, justice ought not to depend on
(the will of either of the litigants. 8th. To controversies between
a State and citizens of another State; because, in case a State (that
is, all the citizens of it) has demands against some citizens of
another State, it is better that she should prosecute their demands
in a national court, than in a court of the State to which those
citizens belong; the danger of irritation and criminations arising
from apprehensions and suspicions of partiality being thereby ob-
viated; because, in cases where some citizens of one State have
demands against all the citizens of another State, the cause of
liberty and the rights of men forbid that the latter should be
the sole judges of the justice due to the latter; and true repub-
lican government requires that free and equal citizens should have
free, fair, and equal justice. 9th. To controversies between citi-
CHISHOLM. EXECUTOR, v. GEORGIA. 613
zens of the same State, claiming lands under grants of different
States; because, as the rights of the two States to grant the land
are drawn into question, neither of the two States ought to decide
the question. 10th. To controversies between a State or the cit-
izens thereof and foreign States, citizens or subjects; because, as
every nation is responsible for the conduct of its citizens towards
other nations, all questions touching the justice due to foreign
nations, or people, ought to be ascertained by, and depend on,
national authority. Even this cursory view of the judicial powers
of the United States leaves the mind strongly impressed with the
importance of them to the preservation of the tranquillity, the
equal sovereignty, and the equal right of the people.
The question now before us renders it necessary to pay particular
attention to that part of the second section which extends the
judicial power "to controversies between a State and citizens of
another State." It is contended that this ought to be construed
to reach none of these controversies, excepting those in which
a State may be plaintiff. The ordinary rules for construction
will easily decide whether those words are to be understood in that
limited sense.
This extension of power is remedied, because it is to settle con-
troversies. It is, therefore, to be construed liberally. It is politic,
wise, and good, that not only the controversies in which a State is
plaintiff, but also those in which a State is defendant, should be
settled; both cases, therefore, are within the reason of the remedy;
and ought to be so adjudged, unless the obvious, plain, and lit-
eral sense of the words forbid it. If we attend to the words, we
find them to be express, positive, free from ambiguity, and with-
out room for such implied expressions: "The judicial power of
the United States shall extend to controversies between a State
and citizens of another State." If the constitution really meant
to extend these powers only to those controversies in which a State
might be plaintiff, to the exclusion of those in which citizens had
demands against a State, it is inconceivable that it should have
attempted to convey that meaning in words not only so incom-
petent, but also repugnant to it; if it meant to exclude a certain
class of these controversies, why were they not expressly excepted;
on the contrary, not even an intimation of such intention appears
in any part of the constitution. It cannot be pretended that where
citizens urge and insist upon demands against a State, which the
State refuses to admit and comply with, that there is no contro-
versy between them. If it is a controversy between them, then
it clearly falls not only within the spirit, but the very words of the
614 CASES ON CONSTITUTIONAL LAW.
constitution. What is it to the cause of justice, and how can it
affect the definition of the word controversy, whether the demands
which cause the dispute are made by a State against citizens of
another State, or by the latter against the former? When power
is thus extended to a controversy, it necessarily, as to all judicial
purposes, is also extended to those between whom it subsists.
We find the same general and comprehensive manner of express-
ing the same ideas in a subsequent clause, in which the constitu-
tion ordains 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." Did it mean
here party plaintiff? If that only was meant, it would have been
easy to have found words to express it. Words are to be under-
stood in their ordinary and common acceptation, and the word
party being in common usage applicable both to plaintiff and de-
fendant, we cannot limit it to one of them in the present case. We
find the legislature of the United States expressing themselves in
the like general and comprehensive manner; they speak, in the
thirteenth section of the judicial act, of controversies where a State
is a party, and as they do not impliedly or expressly apply that
term to either of the litigants in particular, we are to understand
them as speaking of both. In the same section they distinguish
the cases where ambassadors are plaintiffs, from those in which
ambassadors are defendants, and make different provisions respect-
ing those cases; and it is not unnatural to suppose that they would,
in like manner, have distinguished between cases where a State
was plaintiff and where a State was defendant, if they had in-
tended to make any difference between them, or if they had appre-
hended that the constitution had made any difference between
them.
I perceive, and therefore candor urges me to mention, a circum-
stance, which seems to favor the opposite side of the question. It is
this: The same section of the constitution which extends the judi-
cial power to controversies "between a State and the citizens of an-
other State," does also extend that power to controversies to which
the United States are a party. Now it may be said, if the word
party comprehends both plaintiff and defendant, it follows that
the United States may be sued by any citizen, between whom and
them there may be a controversy. This appears to me to be fair
reasoning; but the same principles of candor which urge me to
mention this objection, also urge me to suggest an important differ-
CHISHOLM, EXECUTOR, v. GEORGIA. 615
ence between the two cases. It is this: In all cases of actions
against States or individual citizens the national courts are sup-
ported in all their legal and constitutional proceedings and judg-
ments by the arm of the executive power of the United States;
but in cases of actions against the United Slates, there is no power
which the courts can call to their aid. From this distinction im-
portant conclusions are deducible, and they place the case of a
State, and the case of the United States, in very different points
of view. . . .
For the reasons before given, I am clearly of opinion that a State
is suable by citizens of another State; but lest I should be under-
stood in a latitude beyond by meaning, I think it necessary to sub-
join this caution, namely, That such suability may nevertheless
not extend to all the demands, and to every kind of action; there
may be exceptions. For instance, I am far from being prepared
to say that an individual may sue a State on bills of credit issued
before the constitution was established, and which were issued and
received on the faith of the State, and at a time when no ideas
or expectations of judicial interposition were entertained or con-
templated. . . .
[JUSTICE IEEDELL delivered a dissenting opinion. JUSTICE
BLAIR rendered a concurring opinion.]
NOTE. "The question, in short, was, whether the Constitution was
a bond of national unity, or such federal league only as would be dis-
soluble at the pleasure of any party to it. ... Justice Wilson,
the ablest and most learned of the associates, took the national
view and was supported by two others. The Chief Justice was
thus enabled to declare as the opinion of the court, that under
the Constitution of the United States, sovereignty belonged to the
people of the United States. . . . The doctrine of an indis-
soluble Union, though not in terms declared, is nevertheless in
its elements at least contained in the decision. The qualified sov-
ereignty, national and State, the subordination of State to nation,
the position of the citizen as at once a necessary component part of
the federal and of the State system, are all exhibited. It must
logically follow that a nation as a sovereignty is possessed of all
those powers of independent action and self-protection which the
successors of Jay subsequently demonstrated were by implication
conferred upon it." Cooley in Constitutional History as seen in
American Law, 48, 49.
"It is not rational to suppose that a sovereign power shall be
dragged before a court. The intent is to enable States to recover
616 CASES ON CONSTITUTIONAL LAW.
claims of individuals residing in other States." John Marshall
in the Virginia Convention of 1787, Elliot's Debates, III, 555. A
similar opinion is expressed by Hamilton in The Federalist, No. 81.
"The decision was pronounced on the 18th of February, 1793;
two days afterward the Eleventh Amendment to the Constitution
was proposed to Congress." Carson, The Supreme Court of the
United States, 177.
For an adverse criticism of the judgment rendered in this case,
see the opinion of the court in Hans v. Louisiana, 134 U. S., 1.
MAKTIN", HEIK AT LAW AND DEVISEE OF FAIRFAX, v.
HUNTEK'S LESSEE.
1 Wheaton, 304. Decided 1816.
THIS case is fully stated in the opinion of the court. . . .
STORY, J., delivered the opinion of the court.
This is a writ of error from the court of appeals of Virginia,
founded upon the refusal of that court to obey the mandate of this
court, requiring the judgment rendered in this very cause, at
February term, 1813, to be carried into due execution. The fol-
lowing is the judgment of the court of appeals rendered on the
mandate: "The court is unanimously of opinion, that the appel-
late power of the supreme court of the United States does not
extend to this court, under a sound construction of the constitution
of the United States; that so much of the 25th section of the act
of congress to establish the judicial courts of the United States,
as extends the appellate jurisdiction of the supreme court to this
court, is not in pursuance of the constitution of the United States;
that the writ of error in this cause was improvidently allowed under
the authority of that act; that the proceedings thereon in the
supreme court were coram nonjudice, in relation to this court, and
that obedience to its mandate be declined by the court." . . .
Before proceeding to the principal questions, it may not be unfit
to dispose of some preliminary considerations which have grown
out of the arguments at the bar.
The constitution of the United States was ordained and estab-
lished, not by the States in their sovereign capacities, but emphat-
ically, as the preamble of the constitution declares, by "the people
of the United States." There can be no doubt that it was com-
MARTIN v. HUNTER'S LESSEE. 617
petent to the people to invest the general government with all the
powers which they might deem proper and necessary; to extend
or restrain these powers according to their own good pleasure, am
to give them a paramount and supreme authority. As little doub'
can there be, that the people had a right to prohibit to the State :
the exercise of any powers which were, in their judgment, incom
patible with the objects of the general compact; to make th
powers of the state governments, in given cases, subordinate if
those of the nation, or to reserve to themselves those sovereigr
authorities which they might not choose to delegate to either. The
constitution was not, therefore, necessarily carved out of existing
state sovereignties, nor a surrender of powers already existing in
state institutions, for the powers of the States depend upon their
own constitutions; and the people of every State had the right to
modify and restrain them, according to their own views of policy
or principle. On the other hand it is perfectly clear that the sov-
ereign powers vested in the state governments, by their respective
constitutions, remained unaltered and unimpaired, except so far as
they were granted to the government of the United States.
These deductions do not rest upon general reasoning, plain and
obvious as they seem to be. They have been positively recognized
by one of the articles in amendment of the constitution, which
declares that "the powers not delegated to the United States by
the constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people."
The government, then, of the United States, can claim no
powers which are not granted to it by the constitution, and the
powers actually granted must be such as are expressly given, or
given by necessary implication. On the other hand, this instru-
ment, like every other grant, is to have a reasonable construction,
according to the import of its terms; and where a power is ex-
pressly given in general terms, it is not to be restrained to par-
ticular cases, unless that construction grows out of the context
expressly, or by necessary implication. The words are to be taken
in their natural and obvious sense, and not in a sense unreasonably
restricted or enlarged.
The constitution, unavoidably, deals in general language. It did
not suit the purposes of the people, in framing this great charter
of our liberties, to provide for minute specifications of its powers,
or to declare the means by which those powers should be carried
into execution. It was foreseen that this would be a perilous and
difficult, if not an impracticable, task. The instrument was not
intended to provide merely for the exigencies of a few years, but
618 CASES ON CONSTITUTIONAL LAW.
was to endure through a long lapse of ages, the events of which
were locked up in the inscrutable purposes of Providence. It
could not be foreseen what new changes and modifications of power
might be indispensable to effectuate the general objects of the
charter; restrictions and specifications, which at the present might
seem salutary, might, in the end, prove the overthrow of the
system itself. Hence its powers are expressed in general terms,
leaving to the legislature, from time to time, to adopt its own
means to effectuate legitimate objects, and to mould and model
the exercise of its powers, as its own wisdom and the public interests
should require.
With these principles in view, principles in respect to which
no difference of opinion ought to be indulged, let us now proceed
to the interpretation of the constitution, so far as regards the
great points in controversy.
The third article of the constitution is that which must princi-
pally attract our attention. . . .
This leads us to the consideration of the great question as to the
nature and extent of the appellate jurisdiction of the United
States. We have already seen that appellate jurisdiction is given
by the constitution to the supreme court in all cases where it has
not original jurisdiction, subject, however, to such exceptions and
regulations as congress may prescribe. It is, therefore, capable of
embracing every case enumerated in the constitution, which is not
exclusively to be decided by way of original jurisdiction. But the
exercise of appellate jurisdiction is far from being limited by the
terms of the constitution to the supreme court. There can be no
doubt that congress may create a succession of inferior tribunals,
in each of which it may vest appellate as well as original jurisdic-
tion. The judicial power is delegated by the constitution in the
most general terms, and may, therefore, be exercised by congress
under every variety of form, of appellate or original jurisdiction.
And as there is nothing in the constitution which restrains or
limits this power, it must, therefore, in all other cases, subsist in
the utmost latitude of which, in its own nature, it is susceptible.
As, then, by the terms of the constitution, the appellate jurisdic-
tion is not limited as to the supreme court, and as to this court
it may be exercised in all other cases than those of which it has
original cognizance, what is there to restrain its exercise over state
tribunals in the enumerated cases? The appellate power is not
limited by the terms of the third article to any particular courts.
The words are, "the judicial power (which includes appellate
power) shall extend to all cases," &c., and "in all other cases be-
MARTIN v. HUNTER'S LESSEE. 619
fore mentioned the supreme court shall have appellate jurisdiction."
It is the case, then, and not the court, that gives the jurisdiction.
If the judicial power extends to the case, it will be in vain to search
in the letter of the constitution for any qualifications as to the
tribunal where it depends. It is incumbent, then, upon those
who assert such a qualification to show its existence by necessary
implication. If the text be clear and distinct, no restriction upon
its plain and obvious import ought to be admitted, unless the in-
ference be irresistible.
If the constitution meant to limit the appellate jurisdiction to
cases pending in the courts of the United States, it would neces-
sarily follow that the jurisdiction of these courts would, in all
the cases enumerated in the constitution, be exclusive of state
tribunals. How otherwise could the jurisdiction extend to all cases
arising under the constitution, laws, and treaties of the United
States, or to all cases of admiralty and maritime jurisdiction? If
some of these cases might be entertained by state tribunals, and no
appellate jurisdiction as to them should' exist, then the appellate
power would not extend to all, but to some, cases. If state tribunals
might exercise concurrent jurisdiction over all or some of the
other classes of cases in the constitution without control, then
the appellate jurisdiction of the United States, might, as to such
cases, have no real existence, contrary to the manifest intent of the
constitution. Under such circumstances, to give effect to the judi-
cial power, it must be construed to be exclusive; and this not only
when the casus feeder is should arise directly, but when it should
arise, incidentally, in cases pending in state courts. This construc-
tion would abridge the jurisdiction of such court far more than
has been ever contemplated in any act of congress.
On the other hand, if, as has been contended, a discretion be
vested in congress to establish, or not to establish, inferior courts
at their own pleasure, and congress should not establish such courts,
the appellate jurisdiction of the supreme court would have noth-
ing to act upon, unless it could act upon cases pending in the
state courts. Under such circumstances, it must be held that the
appellate power would extend to state courts; for the constitution
is peremptory that it shall extend to certain enumerated cases,
which cases could exist in no other courts. Any other construc-
tion, upon this supposition, would involve this strange contradic-
tion, that a discretionary power vested in congress, and which they
might rightfully omit to exercise, would defeat the absolute in-
junctions of the constitution in relation to the whole appellate
power.
620 CASES ON CONSTITUTIONAL LAW.
But it is plain that the framers of the constitution did contem-
plate that cases within the judicial cognizance of the United States
not only might but would arise in the state courts, in the exercise
of their ordinary jurisdiction. "With this view the sixth article
declares, that "this constitution, and the laws of the United States
which shall be made in pursuance thereof, and all treaties made,
or which shall be made, under the authority of the United States,
shall be the supreme law of the land, and the judges in every State
shall be bound thereby, anything in the constitution, or laws of
any State to the contrary notwithstanding." It is obvious that this
obligation is imperative upon the state judges in their official, and
not merely in their private, capacities. From the very nature of
their judicial duties they would be called upon to pronounce the
law applicable to the case in judgment. They were not to decide
merely according to the laws or constitution of the State, but
according to the constitution, laws, and treaties of the United
States, "the supreme law of the land."
A moment's consideration will show us the necessity and pro-
priety, of this provision in cases where the jurisdiction of the state
courts is unquestionable. Suppose a contract for the payment
of money is made between citizens of the same State, and per-
formance thereof is sought in the courts of that State; no person
can doubt that the jurisdiction completely and exclusively attaches,
in -the first instance, to such courts. Suppose, at the trial, the
defendant sets up in his defense a tender under a state law, mak-
ing paper money a good tender, or a state law, impairing the obliga-
tion of such contract, which law, if binding, would defeat the suit.
The constitution of the United States has declared that no State
shall make anything but gold or silver coin a tender in payment of
debts, or pass a law impairing the obligation of contracts. If
congress shall not have passed a law providing for the removal
of such a suit to the courts of ihe United States, must not the
state court proceed to hear and determine it? Can a mere plea
in defense be of itself a bar to further proceedings, so as to pro-
hibit an inquiry into its truth or legal propriety, when no other
tribunal exists to whom judicial cognizance of such cases is con-
fided? Suppose an indictment for a crime in a state court, and
the defendant should allege in his defense that the crime was
created by an ex post facto act of the State, must not the state
court, in the exercise of a jurisdiction which has already rightfully
attached, have a right to pronounce on the validity and sufficiency
of the defense? It would be extremely difficult, upon any legal
principles, to give a negative answer to these inquiries. Innumer-
MARTIN v. HUNTER'S LESSEE. 621
able instances of the same sort might be stated in illustration of
the position; and unless the state courts could sustain jurisdiction
in such cases, this clause of the sixth article would be without
meaning or effect, and public mischiefs, of a most enormous mag-
nitude, would inevitably ensue.
It must, therefore, be conceded that the constitution not only
contemplated, but meant to provide for cases within the scope of
the judicial power of the United States, which might yet depend
before state tribunals. It was foreseen that in the exercise of their
ordinary jurisdiction, state courts would incidentally take cog-
nizance of cases arising under the constitution, the laws, and
treaties of the United States. Yet to all these cases the judicial
power, by the very terms of the constitution, is to extend. It can-
not extend by original jurisdiction if that was already rightfully
and exclusively attached in the state courts, which (as has been
already shown) may occur; it must therefore extend by appellate
jurisdiction, or not at all. It would seem to follow that the
appellate power of the United States must, in such cases, extend
to state tribunals; and if in such cases, there is no reason why
it should not equally attach upon all others within the purview
of the constitution.
It has been argued that such an appellate jurisdiction over state
courts is inconsistent with the genius of our governments, and the
spirit of the constitution. That the latter was never designed to
act upon state sovereignties, but only upon the people, and that,
if the power exists, it will materially impair the sovereignty of
the States, and the independence of their courts. We cannot
yield to the force of this reasoning; it assumes principles which
we cannot admit, and draws conclusions to which we do not yield
our assent.
It is a mistake that the constitution was not designed to operate
upon States, in their corporate capacities. It is crowded with pro-
visions which restrain or annul the sovereignty of the States in
some of the highest branches of their prerogatives. The tenth sec-
tion of the first article contains a long list of disabilities and pro-
hibitions imposed upon the States. Surely, when such essential
portions of state sovereignty are taken away, or prohibited to be
exercised, it cannot be correctly asserted that the constitution does
not act upon the States. The language of the constitution is also
imperative upon the States, as to the performance of many duties.
It is imperative upon the state legislatures to make laws prescribing
the time, places, and manner of holding elections for senators and
representatives, and for electors of president and vice-president.
622 CASES ON CONSTITUTIONAL LAW.
And in these, as well as in some other cases, congress have a right
to revise, amend, or supersede the laws which may be passed by
state legislatures. When, therefore, the States are stripped of
some of the highest attributes of sovereignty, and the same are
given to the United States; when the legislatures of the States
are, in some respects, under the control of congress, and in every
case are, under the constitution, bound by the paramount authority
of the United States; it is certainly difficult to support the argu-
ment that the appellate power over the decisions of state courts is
contrary to the genius of our institutions. The courts of the United
States can, without question, revise the proceedings of the execu-
tive and legislative authorities of the States, and if they are found
to be contrary to the constitution, may declare them to be of no
legal validity. Surely, the exercise of the same right over judicial
tribunals is not a higher or more dangerous act of sovereign power.
Nor can such a right be deemed to impair the independence of
state judges. It is assuming the very ground in controversy to
assert that they possess an absolute independence of the United
States. In respect to the powers granted to the United States,
they are not independent; they are expressly bound to obedience
by the letter of the constitution; and if they should unintention-
ally transcend their authority, or misconstrue the constitution,
there is no more reason for giving their judgments an absolute
and irresistible force, than for giving it to the acts of the other
co-ordinate departments of state sovereignty.
The argument urged from the possibility of the abuse of the
revising power, is equally unsatisfactory. It is always a doubtful
course, to argue against the use or existence of a power, from the
possibility of its abuse. It is still more difficult, by such an argu-
ment, to engraft upon a general power, a restriction which is not
to be found in the terms in which it is given. From the very
nature of things, the absolute right of decision, in the last resort,
must rest somewhere wherever it may be vested it is susceptible
of abuse. In all questions of jurisdiction the inferior, or appellate
court must pronounce the final judgment; and common-sense, as
well as legal reasoning, has conferred it upon the latter.
It has been further argued against the existence of this appellate
power, that it would form a novelty in our judicial institutions.
This is certainly a mistake. In the articles of confederation, an
instrument framed with infinitely more deference to state rights
and state jealousies, a power was given to congress, to establish
"courts for revising and determining, finally, appeals in all cases
of captures." It is remarkable, that no power was given to enter-
MARTIN v. HUNTER'S LESSEE. 623
tain original jurisdiction in such cases; and, consequently, the ap-
pellate power (although not so expressed in terms) was altogether
to be exercised in revising the decisions of state tribunals. This
was, undoubtedly, so far a surrender of state sovereignty; but it
never was supposed to be a power fraught with public danger, or
destructive of the independence of state judges. On the contrary,
it was supposed to be a power indispensable to the public safety,
inasmuch as our national rights might otherwise be compromised,
and our national peace be endangered. Under the present consti-
tution the prize jurisdiction is confined to the courts of the United
States; and a power to revise the decisions of state courts, if they
should assert jurisdiction over prize causes, cannot be less impor-
tant, or less useful, than it was under the confederation.
In this connection, we are led again to the construction of the
words of the constitution, "the judicial power shall extend," etc.
If, as has been contended at the bar, the term "extend" have
a relative signification, and mean to widen an existing power, it
will then follow, that, as the confederation gave an appellate power
over state tribunals, the constitution enlarged or widened that ap-
pellate power to all the other cases in which jurisdiction is given
to the courts of the United States. It is not presumed that the
learned counsel would choose to adopt such a conclusion.
It is further argued, that no great public mischief can result
from a construction which shall limit the appellate power of the
United States to cases in their own courts: first, because state
judges are bound by an oath to support the constitution of the
United States, and must be presumed to be men of learning and
integrity; and, secondly, because congress must have an unques-
tionable right to remove all cases within the scope of the judicial
power, from the state courts to the courts of the United States,
at any time before final judgment, though not after final judgment.
As to the first reason admitting that the judges of the state courts
are, and always will be, of as much learning, integrity, and wis-
dom, as those of the courts of the United States (which we very
cheerfully admit), it does not aid the argument. It is manifest
that the constitution has proceeded upon a theory of its own, and
given or withheld powers according to the judgment of the Amer-
ican people, by whom it was adopted. We can only construe its
powers, and cannot inquire into the policy or principles which
induced the grant of them. The constitution has presumed
(whether rightly or wrongly we do not inquire) that state attach-
ments, state prejudices, state jealousies, and state interests, might
sometimes obstruct, or control, or be supposed to obstruct or con-
624: CASES ON CONSTITUTIONAL LAW.
trol, the regular administration of justice. Hence, in controver-
sies between States; between citizens of different States; between
citizens claiming grants under different States; between a State
and its citizens, or foreigners, and between citizens and foreigners,
it enables the parties, under the authority of congress, to have
the controversies heard, tried, and determined before the national
tribunals. No other reason than that which has been stated can
be assigned, why some, at least, of those cases should not have been
left to the cognizance of the state courts. In respect to the other
enumerated cases the cases arising under the constitution, laws,
and treaties of the United States, cases affecting ambassadors and
other public ministers, and cases of admiralty and maritime juris-
diction reasons of a higher and more extensive nature, touch-
ing the safety, peace, and sovereignty of the nation, might well
justify a grant of exclusive jurisdiction.
This is not all. A motive of another kind, perfectly compatible
with the most sincere respect for state tribunals, might induce the
grant of appellate power over their decisions. That motive is the
importance, and even necessity of uniformity of decisions through-
out the whole United States, upon all subjects within the purview
of the constitution. Judges of equal learning and integrity, in
different States, might differently interpret a statute, or a treaty
of the United States, or even the constitution itself. If there
were no revising authority to control these jarring and discordant
judgments, and harmonize them into uniformity, the laws, the
treaties, and the constitution of the United States would be differ-
ent in different States, and might perhaps never have precisely
the same construction, obligation, or efficacy, in any two States.
The public mischiefs that would attend such a ^tate of things would
be truly deplorable; and it cannot be believed that they could have
escaped the enlightened convention which formed the constitu-
tion. "What, indeed, might then have been only prophecy has now
become fact; and the appellate jurisdiction must continue to be
the only adequate remedy for such evils.
There is an additional consideration, which is entitled to great
weight. The constitution of the United States was designed for
the common and equal benefit of all the people of the United States.
The judicial power was granted for the same benign and salutarj
purposes. It was not to be exercised exclusively for the benefit
of parties who might be plaintiffs, and would elect the national
forum, but also for the protection of defendants who might be
entitled to try their rights, or assert their privileges, before the
same forum. Yet, if the construction contended for be correct,
MARTIN v. HUNTER'S LESSEE. 625
it will follow, that as the plaintiff may always elect the state court,
the defendant may be deprived of all the security which the con-
stitution intended in aid of his rights. Such a state of things
can, in no respect, be considered as giving equal rights. To obviate
this difficulty, we are referred to the power which it is admitted
congress possess to remove suits from state courts to the national
courts; and this forms the second ground upon which the argu-
ment we are considering has been attempted to be sustained.
This power of removal is not to be found in express terms in
any part of the constitution; if it be given, it is only given by
implication, as a power necessary and proper to carry into effect
some express power. The power of removal is certainly not, in
strictness of language; it presupposes an exercise of original juris-
diction to have attached elsewhere. The existence of this power of
removal is familiar in courts acting according to the course of the
common law in criminal as well as civil cases, and it is exercised
before as well as after judgment. But this is always deemed in
both cases an exercise of appellate, and not of original jurisdiction.
If, then, the right of removal be included in the appellate jurisdic-
tion, it is only because it is one mode of exercising that power, and
as congress is not limited by the constitution to any particular
mode, or time of exercising it, it may authorize a removal either
before or after the judgment. The time, the process, and the man-
ner, must be subject to its absolute legislative control. A writ
of error is, indeed, but a process which removes the record of one
court to the possession of another court, and enables the latter to
inspect the proceedings, and give such judgment as its own
opinion of the law and justice of the case may warrant. There
is nothing in the nature of the process which forbids it from being
applied, by the legislature, to interlocutory as well as final judg-
ments. And if the right of removal from state courts exists be-
fore judgment, because it is included in the appellate power, it
must, for the same reason, exist after judgment. And if the
appellate power by the constitution does not include cases pend-
ing in state courts, the right of removal, which is but a mode of
exercising that power, cannot be applied to them. Precisely the
same objections, therefore, exist as to the right of removal before
judgment as after, and both must stand or fall together. Nor,
indeed, would the force of the arguments on either side materially
vary, if the right of removal were an exercise of original jurisdic-
tion. It would equally trench upon the jurisdiction and inde-
pendence of state tribunals.
The remedy, too, of removal of suits would be utterly inadequate
40
626 CASES ON CONSTITUTIONAL LAW.
to the purposes of the constitution, if it could act only on the
parties, and not upon the state courts. In respect to criminal
prosecutions, the difficulty seems admitted to be insurmountable;
and, in respect to civil suits, there would, in many cases, be rights
without corresponding remedies. If state courts should deny the
constitutionality of the authority to remove suits from their cog-
nizance, in what manner could they be compelled to relinquish
the jurisdiction? In respect to criminal cases, there would at
once be an end of all control, and the state decisions would be para-
mount to the constitution; and though in civil suits the courts of
the United States might act upon the parties, yet the state courts
might act in the same way; and this conflict of jurisdictions
would not only jeopardize private rights, but bring into imminent
peril the public interests.
On the whole, the court are of opinion, that the appellate power
of the United States does extend to cases pending in the state
courts; and that the 25th section of the Judiciary Act, which
authorizes the exercise of this jurisdiction in the specified cases,
by a writ of error, is supported by the letter and spirit of the con-
stitution. We find no clause in that instrument which limits this
power; and we dare not interpose a limitation where the people
have not been disposed to create one.
Strong as this conclusion stands upon the general language of
the constitution, it may still derive support from other sources.
It is an historical fact, that this exposition of the constitution,
extending its appellate power to state courts, was, previous to its
adoption, uniformly and publicly avowed by its friends, and ad-
mitted by its enemies, as the basis of their respective reasonings,
both in and out of the state conventions. It is an historical fact,
that at the time when the Judiciary Act was submitted to the
deliberations of the first congress, composed, as it was, not only
of men of great learning and ability, but of men who had acted
a principal part in framing, supporting, or opposing that consti-
tution, the same exposition was explicitly declared and admitted
by the friends and by the opponents of that system. It is an his-
torical fact, that the supreme court of the United States have, from
time to time, sustained this appellate jurisdiction in a great variety
of cases, brought from the tribunals of many of the most impor-
tant States in the Union, and that no state tribunal has ever
breathed a judicial doubt on the subject, or declined to obey the
mandate of the supreme court, until the present occasion. This
weight of contemporaneous exposition by all parties, this acquies-
cence of enlightened state courts, and these judicial decisions of
COHENS v. VIRGINIA. 627
the supreme court through so long a period, do, as we think, place
the doctrine upon a foundation of authority which cannot be
shaken, without delivering over the subject to perpetual and ir-
remediable doubts. . . .
It is the opinion of the whole court, that the judgment of the
court of appeals of Virginia, rendered on the mandate in this
cause, be reversed, and the judgment of the district court, held at
Winchester, be, and the same is hereby affirmed.
[MR. JUSTICE JOHNSON delivered a concurring opinion.]
COHENS v. THE STATE OF VIRGINIA.
6 Wheaton, 264. Decided 1821.
[The facts are sufficiently stated in the opinion of the court.]
MARSHALL, C. J._, delivered the opinion of the court.
This is a writ of error to a judgment rendered in the court of
Hustings, for the borough of Norfolk, on an information for sell-
ing lottery tickets, contrary to an act of the legislature of Vir-
ginia. In the state court, the defendant claimed the protection
of an act of congress. A case was agreed between the parties,
which states the act of assembly on which the prosecution was
founded, and the act of congress on which the defendant relied,
and concludes in these words: "If upon this case the court shall
be of opinion that the acts of congress before mentioned were valid,
and, on the true construction of those acts, the lottery tickets sold
by the defendants as aforesaid, might lawfully be sold within the
State of Virginia, notwithstanding the act or statute of the general
assembly of Virginia prohibiting such sale, then judgment to be
entered for the defendants. And if the court should be of opin-
ion that the statute or act of the general assembly of the State
of Virginia, prohibiting such sale, is valid, notwithstanding the
said acts of congress, then judgment to be entered that the defend-
ants are guilty, and that the commonwealth recover against them
one hundred dollars and costs."
Judgment was rendered against the defendants; and the court
in which it was rendered being the highest court of the State in
which the cause was cognizable, the record has been brought into
this court by writ of error.
G28 CASES ON CONSTITUTIONAL LAW.
The defendant in error moves to dismiss this writ, for want of
jurisdiction.
In support of this motion, three points have been made, and
argued with the ability which the importance of the question
merits. These points are:
1. That a State is a defendant.
2. That no writ of error lies from this court to a state court.
3. The third point has been presented in different forms by
the gentlemen who have argued it. The counsel who opened the
cause said that the want of jurisdiction was shown by the subject-
matter of the case. The counsel who followed him said that juris-
diction was not given by the Judiciary Act. The court has be-
stowed all its attention on the arguments of both gentlemen, and
supposes that their tendency is to show that this court has no
jurisdiction of the case, or, in other words, has no right to review
the judgment of the state court, because neither the constitution
nor any law of the United States has been violated by that judg-
ment.
The questions presented to the court by the first two points
made at the bar are of great magnitude, and may be truly said
vitally to affect the Union. They exclude the inquiry whether the
constitution and laws of the United States have been violated by
the judgment which the plaintiffs in error seek to review; and
maintain that, admitting such violation, it is not in the power
of the government to apply a corrective. They maintain that the
nation does not possess a department capable of restraining peace-
ably, and by authority of law, any attempts which may be made,
by a part, against the legitimate powers of the whole; and that the
government is reduced to the alternative of submitting to such
attempts, or of resisting them by force. They maintain that the
constitution of the United States has provided no tribunal for
the final construction of itself, or of the laws or treaties of the
nation; but that this power may be exercised in the last resort
by the courts of every State in the Union. That the constitution,
laws, and treaties, may receive as many constructions as there are
States; and that this is not a mischief, or, if a mischief, is irre-
mediable. These abstract propositions are to be determined; for
he who demands decision without permitting inquiry, affirms that
the decision he asks does not depend on inquiry.
If such be the constitution, it is the duty of the court to bow
with respectful submission to its provisions. If such be not the
constitution, it is equally the duty of this court to say so; and
COHENS v. VIRGINIA. 629
to perform that task which the American people have assigned to
the judicial department.
1. The first question to be considered is, whether the jurisdic-
tion of this court is excluded by the character of the parties, one
of them being a State, and the other a citizen of that State?
The 2cT section of the third article of the constitution defines
the extent of the judicial power of the United States. Jurisdiction
is given to the courts of the Union in two classes of cases. In the
first, their jurisdiction depends on the character of the cause,
whoever may be the parties. This class comprehends "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." This clause extends the jurisdiction of the court
to all the cases described, without making in its terms any exception
whatever, and without any regard to the condition of the party.
If there be any exception, it is to be implied against the express
words of the article.
In the second class, the jurisdiction depends entirely on the
character of the parties. In this are comprehended "controversies
between two or more States, between a State and citizens of an-
other State," "and between a State and foreign states, citizens, or
subjects." If these be the parties, it is entirely unimportant' what
may be the subject of controversy. Be it what it may, these par-
ties have a constitutional right to come into the courts of the
Union.
The counsel for the defendant in error have stated that the cases
which arise under the constitution must grow out of those pro-
visions which are capable of self -execution; examples of which are
to be found in the second section of the fourth article, and in the
tenth section of the first article.
A case which arises under a law of the United States must, we
are likewise told, be a right given by some act which becomes
necessary to execute the powers given in the constitution, of which
the law of naturalization is mentioned as an example.
The use intended to be made of this exposition of the first part
of the section, defining the extent of the judicial power, is not
clearly understood. If the intention be merely to distinguish cases
arising under the constitution, from those arising under a law, for
the sake of precision in the application of this argument, these
propositions will not be controverted. If it be to maintain that
a case arising under the constitution, or a law, must be one in
which a party comes into court to demand something conferred
on him by the constitution or a law, we think the construction
630 CASES ON CONSTITUTIONAL LAW.
too narrow. A case in law or equity consists of the right of the
one party, as well as of the other, and may truly be said to arise
under the constitution or a law of the United States, whenever its
correct decision depends on the construction of either. Congress
seems to have intended to give its own construction of this part
of the constitution, in the 25th section of the Judiciary Act; and
we perceive no reason to depart from that construction.
The jurisdiction of the court, then, being extended by the letter
of the constitution to all cases arising under it, or under the laws
of the United States, it follows that those who would withdraw
any case of this description from that jurisdiction, must sustain
the exemption they claim on the spirit and true meaning of the
constitution, which spirit and true meaning must be so apparent
as to overrule the words which its framers have employed.
The counsel for the defendant in error have undertaken to do
this; and have laid down the general proposition, that a sover-
eign independent State is not suable, except by its own consent.
This general proposition will not be controverted. But its con-
sent is not requisite in each particular case. It may be given in a
general law. And if a State has surrendered any portion of its
sovereignty, the question whether a liability to suit be a part of
this portion, depends on the instrument by which the surrender is
made. If upon a just construction of that instrument, it shall
appear that the State has submitted to be sued, then it has parted
with this sovereign right of judging in every case on the justice
of its own pretensions, and has intrusted that power to a tribunal
in whose impartiality it confides.
The American States, as well as the American people, have be-
lieved a close and firm Union to be essential to their liberty and to
their happiness. They have been taught by experience, that this
Union cannot exist without a government for the whole; and they
have been taught by the same experience that this government
would be a mere shadow, that must disappoint all their hopes,
unless invested with large portions of that sovereignty which be-
longs to independent States. Under the influence of this opinion,
and thus instructed by experience, the American people, in the
conventions of their respective States, adopted the present consti-
tution.
If it could be doubted whether, from its nature, it were not
supreme in all cases where it is empowered to act, that doubt
would be removed by the declaration that "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
COHENS v. VIRGINIA. G31
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 not-
withstanding."
This is the authoritative language of the American people; and,
if gentlemen please, of the American States. It marks with lines
too strong to be mistaken, the characteristic distinction between
the government of the Union and those of the States. The gen-
eral government, though limited as to its objects, is supreme with
respect to those objects. This principle is a part of the constitu-
tion; and if there be any who deny its necessity, none can deny
its authority.
To this supreme government ample powers are confided; and
if it were possible to doubt the great purposes for which they were
so confided, the people of the United States have declared that
they are given "in order to form a more perfect union, establish
justice, insure domestic tranquillity, provide for the common de-
fense, promote the general welfare, and secure the blessings of
liberty to themselves and their posterity."
With the ample powers confided to this supreme government,
for these interesting purposes, are connected many express and
important limitations on the sovereignty of the States, which are
made for the same purposes. The powers of the Union on the
great subjects of war, peace, and commerce, and on many others,
are in themselves limitations of the sovereignty of the States; but
in addition to these, the sovereignty of the States is surrendered
in many instances where the surrender can only operate to the
benefit of the people, and where, perhaps, no other power is con-
ferred on congress than a conservative power to maintain the prin-
ciples established in the constitution. The maintenance of these
principles in their purity is certainly among the great duties of
the government. One of the instruments by which this duty may
be peaceably performed is the judicial department. It is author-
ized to decide all cases, of every description, arising under the
constitution or laws of the United States. From this general grant
of jurisdiction, no exception is made of those cases in which a
State may be a party. When we consider the situation of the
government of the Union and of a State, in relation to each other;
the nature of our constitution, the subordination of the state gov-
ernments to the constitution; the great purpose for which juris-
diction over all cases arising under the constitution and laws of
the United States, is confided to the judicial department, are we
at liberty to insert in this general grant, an exception of those
632 CASES ON CONSTITUTIONAL LAW.
cases in which a State may be a party? Will the spirit of the con-
stitution justify this attempt to control its words? We think it
will not. We think a case arising under the constitution or laws
of the United States, is cognizable in the courts of the Union, who-
ever may be the parties to that case. . . .
It is most true that this court will not take jurisdiction if it
should not; but it is equally true, that it must take jurisdiction
if it should. The judiciary cannot, as the legislature may, avoid
a measure because it approaches the confines of the constitution.
We cannot pass it by because it is doubtful. With whatever doubts,
with whatever difficulties, a case may be attended, we must decide
it, if it be brought before us. We have no more right to decline
the exercise of jurisdiction which is given, than to usurp that
which is not given. The one or the other would be treason to the
constitution. Questions may occur which we would gladly avoid;
but we cannot avoid them. All we can do is, to exercise our best
judgment, and conscientiously to perform our duty. In doing
this on the present occasion, we find this tribunal invested with
appellate jurisdiction in all cases arising under the constitution
and laws of the United States. We find no exception to this grant,
and we cannot insert one. . . .
We think, then, that as the Constitution originally stood, the
appellate jurisdiction of this court, in all cases arising under the
constitution, laws, or treaties of the United States, was not ar-
rested by the circumstance that a State was a party.
This leads to a consideration of the llth amendment.
It is in these words: "The judicial power of the United States
shall not be construed to extend to any suit in law or equity com-
menced or prosecuted against one of the United States, by citizens
of another State, or by citizens or subjects of any foreign State."
It is a part of our history, that, at the adoption of the con-
stitution, all the States were greatly indebted; and the apprehen-
sion that these debts might be prosecuted in the federal courts,
formed a very serious objection to that instrument. Suits were
instituted; and the court maintained its jurisdiction. The alarm
was general; and, to quiet the apprehensions that were so exten-
sively entertained, this amendment was proposed in Congress, and
adopted by the State legislatures. That its motive was not to
maintain the sovereignty of a State from the degradation supposed
to attend a compulsory appearance before the tribunal of the na-
tion, may be inferred from the terms of the amendment. It does
not comprehend controversies between two or more States, or be-
tween a State and a foreign state. The jurisdiction of the court
COHENS v. VIRGINIA. 633
still extends to these cases; and in these a State may still be sued.
We must ascribe the amendment, then, to some other cause than
the dignity of a State. There is no difficulty in finding this cause.
Those who were inhibited from commencing a suit against a State.
or from prosecuting one which might be commenced before the
adoption of the amendment, were persons who might probably be
its creditors. There was not much reason to fear that foreign or
sister States would be creditors to any considerable amount, and
there was reason to retain the jurisdiction of the court in those
cases, because it might be essential to the preservation of peace.
The amendment, therefore, extended to suits commenced or prose-
cuted by individuals, but not to those brought by States.
The first impression made on the mind by this amendment is,
that it was intended for those cases, and for those only, in which
some demand against a State is made by an individual in the
courts of the Union. If we consider the causes to which it is to be
traced, we are conducted to the same conclusion. A general in-
terest might well be felt in leaving to a State the full power of
consulting its convenience in the adjustment of its debts, or of
other claims upon it; but no interest could be felt in so changing
the relations between the whole and its parts, as to strip the gov-
ernment of the means of protecting, by the instrumentality of its
courts, the constitution and laws from active violation. . . .
Under the Judiciary Act, 1 the effect of a writ of error is simply
to bring the record into court, and submit the judgment of the
inferior tribunal to re-examination. It does not in any manner
act upon the parties; it acts only on the record. It removes the
record into the supervising tribunal. Where, then, a State obtains
a judgment against an individual, and the court rendering such
judgment overrules a defense set up under the constitution or laws
of the United States, the transfer of this record into the supreme
court for the sole purpose of inquiring whether the judgment vio-
lates the constitution of the United States, can, with no propriety,
we think, be denominated a suit commenced or prosecuted against
the State whose judgment is so far re-examined. Nothing is de-
manded from the State. No claim against it of anv description is
asserted or prosecuted. The party is not to be restored to the
possession of anything. . . . He only asserts the constitu-
tional right to have his defense examined by that tribunal whose
province it is to construe the constitution and laws of the
Union. . . .
1 1 Stats, at Large, 73.
634 CASES ON CONSTITUTIONAL LAW.
The point of view in which this writ of error, with its citation,
has been considered uniformly in the courts of the Union, has
been well illustrated by a reference to the course of this court in
suits instituted by the United States. The universally received
opinion is, that no suit can be commenced or prosecuted against
the United States; that the Judiciary Act does not authorize such
suits. Yet writs of error, accompanied with citations, have uni-
formly issued for the removal of judgments in favor of the United
States into a superior court, where they have, like those in favor
of an individual, been re-examined, and affirmed or reversed. It
has never been suggested that such a writ of error was a suit
against the United States, and therefore not within the jurisdic-
tion of the appellate court.
It is, then, the opinion of the court, that the defendant who
removes a judgment rendered against him by a state court into
this court, for the purpose of re-examining the question whether
that judgment be a violation of the constitution or laws of the
United States, does not commence or prosecute a suit against the
State, whatever may be its opinion where the effect of the writ
may be to restore the party to the possession of a thing which he
demands.
But should we in this be mistaken, the error does not affect the
case now before the court. If this writ of error be a suit in the
sense of the llth amendment, it is not a suit commenced or prose-
cuted "by a citizen of another State, or by a citizen or subject of
any foreign state." It is not then within the amendment, but is
governed entirely by the constitution as originally framed, and we
have already seen that, in its origin, the judicial power was ex-
tended to all cases arising under the constitution or laws of the
United States, without respect to parties.
2. The second objection to the jurisdiction of the court is, that
its appellate power cannot be exercised, in any case, over the judg-
ment of a state court.
This objection is sustained chiefly by arguments drawn from the
supposed total separation of the judiciary of a State from that of
the Union, and their entire independence of each other. The
argument considers the federal judiciary as completely foreign
to that of a State; and as being no more connected with it, in
any respect whatever, than the court of a foreign State. If this
hypothesis be just, the argument founded on it is equally so; but
if the hypothesis be not supported by the constitution, the argu-
ment fails with it.
This hypothesis is not founded on any words in the constitu-
COHENS v. VIRGINIA. 635
.tion, which might seem to countenance it, but on the unreason-
ableness of giving a contrary construction to words which seem
to require it; and on the incompatibility of the application of the
appellate jurisdiction to the judgments of state courts, with that
constitutional relation which subsists between the government of
the Union and the governments of those States which compose it.
Let this unreasonableness, this total incompatibility, be ex-
amined.
That the United States form, for many, and for most impor-
tant purposes, a single nation, has not yet been denied. In war,
we are one people. In making peace, we are one people. In all
commercial regulations, we are one and the same people. In many
other respects, the American people are one; and the govern-
ment which is alone capable of controlling and managing their
interests, in all these respects, is the government of the Union.
It is their government, and in that character they have no other.
America has chosen to be, in many respects, and to many pur-
poses, a nation; and for all these purposes her government is com-
plete; to all these objects, it is competent. The people have de-
clared, that in the exercise of all powers given for these objects,
it is supreme. It can, then, in effecting these objects, legiti-
mately control all individuals or governments within the American
territory. The constitution and laws of a State, so far as they
are repugnant to the constitution and laws of the United States,
are absolutely void. These States are constituent parts of the
United States. They are members of one great empire, for some
purposes sovereign, for some purposes subordinate.
In a government so constituted, is it unreasonable that the ju-
dicial power should be competent to give efficacy to the constitu-
tional laws of the legislature? That department can decide on the
validity of the constitution or law of a State, if it be repugnant
to the constitution or to a law of the United States. Is it unrea-
sonable that it should also be empowered to decide on the judg-
ment of a state tribunal enforcing such unconstitutional law? Is
it so very unreasonable as to furnish a justification for controlling
the words of the constitution?
We think it is not. "We think that in a government acknowl-
edgedly supreme, with respect to objects of vital interest to the
nation, there is nothing inconsistent with sound reason, nothing
incompatible with the nature of government, in making all its
departments supreme, so far as respects those objects, and so far as
is necessary to their attainment. The exercise of the appellate
power over those judgments of the state tribunals which may con-
636 CASES ON CONSTITUTIONAL LAW.
travene the constitution or laws of the United States, is, we believe,
essential to the attainment of those objects.
The propriety of intrusting the construction of the constitution,
and laws made in pursuance thereof, to the judiciary of the Union,
has not, we believe, as yet, been drawn into question. It seems
to be a corollary from this political axiom, that the federal courts
should either possess exclusive jurisdiction in such cases, or a
power to revise the judgments rendered in them by the state
tribunals. If the federal and state courts have concurrent juris-
diction in all cases arising under the constitution, laws, and
treaties of the United States; and if a case of this description
brought in a state court cannot be removed before judgment, nor
revised after judgment, then the construction of the constitution,
laws, and treaties of the United States is not confided particularly
to their judicial department, but is confided equally to that de-
partment and to the state courts, however, they may be consti-
tuted. "Thirteen independent courts," says a very celebrated
statesman (and we have now more than twenty such courts), "of
final jurisdiction over the same causes, arising upon the same laws,
is a hydra of government, from which nothing but contradiction
and confusion can proceed."
Dismissing the unpleasant suggestion, that any motives which
may not be fairly avowed, or which ought not to exist, can ever
influence a State or its courts, the necessity of uniformity, as well
as correctness in expounding the constitution and laws of the
United States, would itself suggest the propriety of vesting in
some single tribunal the power of deciding, in the last resort, all
cases in which they are involved.
We are not restrained, then, by the political relations between
the general and state governments, from construing the words of
the constitution, defining the judicial power, in their true sense.
We are not bound to construe them more restrictively than they
naturally import.
They give to the supreme court appellate jurisdiction in all cases
arising under the constitution, laws, and treaties of the United
States. The words are broad enough to comprehend all cases of
this description, in whatever court they may be decided. . . .
Let the nature and objects of our Union be considered; let the
great fundamental principles on which the fabric stands be ex-
amined; and we think the result must be that there is nothing so
extravagantly absurd in giving to the court of the nation the power
of revising the decisions of local tribunals, on questions which
UNITED STATES v. TEXAS. 637
affect the nation, as to require that words which import this power
should be restricted by a forced construction. . . .
Motion Denied.
The cause was thereupon argued on the merits. . . .
Judgment Affirmed.
UNITED STATES v. TEXAS.
143 U. S., 621. Decided 1892.
[The facts are sufficiently stated in the opinion of the court.]
ME. JUSTICE HARLAN delivered the opinion of the court.
This suit was brought by original bill in this court pursuant to
the act of May 2, 1890, providing a temporary government for the
Territory of Oklahoma. The 25th section recites the existence
of a controversy between the United States and the State of Texas
as to the ownership of what is designated on the map of Texas as
Greer County, and provides that the act shall not be construed to
apply to that county until the title to the same has been adjudi-
cated and determined to be in the United States. In order that
there might be a speedy and final judicial determination of this
controversy the Attorney-General of the United States was author-
ized and directed to commence and prosecute on behalf of the
United States a proper suit in equity in this court against the State
of Texas, setting forth the title of the United States to the country
lying between the North and South Forks of the Red Eiver where
the Indian Territory and the State of Texas adjoin, east of the
one hundredth degree of longitude, and claimed by the State of
Texas as within its boundary. 26 Stat., 81, 92, c. 182, 25.
The State of Texas appeared and filed a demurrer, and, also,
an answer denying the material allegations of the bill. The case
is now before the court only upon the demurrer, the principal
grounds of which are: That the question presented is political in
its nature and character, and not susceptible of judicial deter-
mination by this court in the exercise of its jurisdiction as con-
ferred by the Constitution and laws of the United States; that
it is not competent for the general government to bring suit against
a State of the Union in one of its own courts, especially when the
right to be maintained is mutually asserted by the United States
and the State, namely, the ownership of certain designated terri-
tory; and that the plaintiff's cause of action, being a suit to recover
638 CASES ON CONSTITUTIONAL LAW.
real property, is legal and not equitable, and, consequently, so
much of the act of May 2, 1890, as authorizes and directs the
prosecution of a suit in equity to determine the rights of the
United States to the territory in question is unconstitutional and
void. . . . [Here follows a history of the conflicting claims
of the United States and Texas.]
The bill alleges thait the State of Texas, without right, claims,
has taken possession of, and endeavors to extend its laws and juris-
diction over, the disputed territory, in violation of the treaty rights
of the United States; that, during the year 1887, it gave public
notice of its purpose to survey and place upon the market for sale,
and otherwise dispose of, that territory; and that, in consequence
of its proceeding to eject bona fide settlers from certain portions
thereof, President Cleveland, by proclamation issued December 30,
1887, warned all persons, whether claiming to act as officers of the
county of Greer, or otherwise, against selling or disposing of, or
attempting to sell or dispose of, any of said lands, or from exercis-
ing or attempting to exercise any authority over them, and "against
purchasing any part of said territory from any person or persons
whatever." 25 Stat., 1483.
The relief asked is a decree determining the true line between
the United States and the State of Texas, and whether the land
constituting what is called "Greer County" is within the boundary
and jurisdiction of the United States or of the State of Texas.
The government prays that its rights, as asserted in the bill, be
established, and that it have such other relief as the nature of the
case may require.
In support of the contention that the ascertainment of the
boundary between a Territory of the United States and one of the
States of the Union is political in its nature and character, and
not susceptible of judicial determination, the defendant cites Fos-
ter v. Neilson, 2 Pet., 253, 307, 309; Cherokee Nation v. Georgia,
5 Pet., 1, 21; United States v. Arredondo, 6 Pet., 691, 711; and
Garcia v. Lee, 12 Pet., 511, 517.
In Foster v. Neilson, which was an action to recover certain
lands in Louisiana, the controlling question was as to whom the
country between the Iberville and the Perdido rightfully belonged
at the time the title of the plaintiff in that case was acquired. The
United States, the court said, had perseveringly insisted that by
the treaty of St. Ildefonso, made O.ctober 1, 1800, Spain ceded the
disputed territory as part of Louisiana to France, and that France
by the treaty of Paris of 1803 ceded it to the United States. Spain
insisted that the cession to France comprehended only the territory
UNITED STATES v. TEXAS. 639
which was at that time denominated Louisiana. After examining
various articles of the treaty of St. Ildefonso, Chief Justice Mar-
shall, speaking for the court, said: "In a controversy between two
nations concerning national boundary, it is scarcely possible that
the courts of either should refuse to abide by the measures adopted
by its own government. There being no common tribunal to de-
cide between them, each determines for itself on its own rights,
and if they cannot adjust their differences peaceably, the right
remains with the strongest. 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 individual rights, according to those principles which the
political departments of the nation have established. If the course
of the nation has been a plain one, its courts would hesitate to
pronounce it erroneous." Again: "After these acts of sovereign
power over the territory in dispute, asserting the American con-
struction of the treaty, by which the government claims it, to
maintain the opposite construction in its own courts would cer-
tainly be an anomaly in the history and practice of nations. If
those departments which are trusted with the foreign intercourse
of the nation, which assert and maintain its interests against for-
eign powers, have unequivocally asserted its rights of dominion
over a country of which it is in possession, and which it claims
under a treaty; if the legislature has acted on the construction
thus asserted, it is not in its own courts that this construction is
to be denied. A question like this respecting the boundaries of
nations, is, as has been truly said, more a political than a legal
question; and, in its discussion, the courts of every country must
respect the pronounced will of the legislature."
In United States v. Arredondo the court, referring to Foster v.
Neilson, said: "This court did not deem the settlement of boun-
daries a judicial but a political question that it was not its duty
to lead, but to follow the action of the other departments of the
government." The same principles were recognized in Cherokee
Nation v. Georgia and Garcia v. Lee.
These authorities do not control the present case. They relate
to questions of boundary between independent nations, and have
no application to a question of that character arising between the
General Government and one of the States composing the Union,
or between two States of the Union. By the Articles of Confed-
eration, Congress was made "the last resort on appeal in all dis-
putes and differences" then subsisting or which thereafter might
arise "between two or more States concerning boundary, jurisdic-
640 CASES ON CONSTITUTIONAL LAW.
tion, or any other cause whatever;" the authority so conferred to
be exercised by a special tribunal to be organized in the mode pre-
scribed in those Articles, and its judgment to be final and con-
clusive. Art. 9. At the time of the adoption of the Constitution,
there existed, as this court said in Rhode Island v. Massachusetts,
12 Pet., 657, 723, 724, controversies between eleven States, in re-
spect to boundaries, which had continued from the first settle-
ment of the colonies. The necessity for the creation of some tri-
bunal for the settlement of these and like controversies that might
arise, under the new government to be formed, must, therefore,
have been perceived by the framers of the Constitution, and, con-
sequently, among the controversies to which the judicial power of
the United States was extended by the Constitution, we find those
between two or more States. And that a controversy between two
or more States, in respect to boundary, is one to which, under the
Constitution, such judicial power extends, is no longer an open
question in this court. The cases of Ehode Island v. Massachu-
setts, 12 Pet., 657; New Jersey v. New York, 5 Pet., 284, 290; Mis-
souri v. Iowa, 7 How., 660; Florida v. Georgia, 17 How., 478;
Alabama v. Georgia, 23 How., 505; Virginia v. West Virginia, 11
Wall., 39, 55; Missouri v. Kentucky, 11 Wall., 395; Indiana v.
Kentucky, 136 U. S., 479; and Nebraska v. Iowa, ante, 359, were
all original suits, in this court, for the judicial determination of dis-
puted boundary lines between States. In New Jersey v. New York,
5 Pet., 284, 290, Chief Justice Marshall said: "It has then been
settled by our predecessors, on great deliberation, that this court
may exercise its original jurisdiction in suits against a State, under
the authority conferred by the Constitution and existing acts of
Congress." And in Virginia v. West Virginia, it was said by Mr.
Justice Miller to be the established doctrine of this court, "that
it has jurisdiction of questions of boundary between two States of
this Union, and that this jurisdiction is not defeated, because in
deciding that question it becomes necessary to examine into and
construe compacts or agreements between those States, or because
the decree which the court may render, affects the territorial limits
of the political jurisdiction and sovereignty of the States which
are parties to the proceeding." So, in Wisconsin v. Pelican Ins.
Co., 127 U. S., 265, 287, 288: "By the Constitution, therefore,
this court has original jurisdiction of suits brought by a State
against citizens of another State, as well as of controversies between
two States. ... As to 'controversies between two or more
States.' The most numerous class of which this court has enter-
tained jurisdiction is that of controversies between two States as
UNITED STATES v. TEXAS. 641
to the boundaries of their territory, such as were determined be-
fore the Kevolution by the King in Council, and under the Articles
of Confederation (while there was no national 'judiciary) by com-
mittees or commissioners appointed by Congress."
In view of these cases, it cannot, with propriety, be said that a
question of boundary between a Territory of the United States and
one of the States of the Union is of a political nature, and not
susceptible of judicial determination by a court having jurisdic-
tion of such a controversy. The important question therefore is,
whether this court can, under the Constitution, take cognizance
of an original suit brought by the United States against a State
to determine the boundary between one of the Territories and
such State. Texas insists that no such jurisdiction has been con-
ferred upon this court, and that the only mode in which the pres-
ent dispute can be peaceably settled is by agreement, in some form,
between the United States and that State. Of course, if no such
agreement can be reached and it seems that one is not probable
and if neither party will surrender its claim of authority and juris-
diction over the disputed territory, the result, according to the
defendant's theory of the Constitution, must be that the United
States, in order to effect a settlement of this vexed question of
boundary, must bring its suit in one of the courts of Texas that
State consenting that its courts may be open for the assertion of
claims against it by the United States or that, in the end, there
must be a trial of physical strength between the government of the
Union and Texas. The first alternative is unwarranted both by the
letter and spirit of the Constitution. Mr. Justice Story has well
said: "It scarcely seems possible to raise a reasonable doubt as to
the propriety of giving to the national courts jurisdiction of cases
in which the United States are a party. It would be a perfect
novelty in the history of national jurisprudence, as well as of
public law, that a sovereign had no authority to sue in his own
courts. Unless this power were given to the United States, the
enforcement of all their rights, powers, contracts and privileges
in their sovereign capacity would be at the mercy of the States.
They must be enforced, if at all, in the State tribunals." Story
Const., 1674. The second alternative, above mentioned, has no
place in our constitutional system, and cannot be contemplated
by any patriot except with feelings of deep concern.
The cases in this court show that the framers of the Constitution
did provide, by that instrument, for the judicial determination of
all cases in law and equity between two or more States, including
those involving questions of boundary. Did they omit to provide
41
642 CASES ON CONSTITUTIONAL LAW.
for the judicial determination of controversies arising between
the United States and one or more of the States of the Union?
This question is in' effect answered by United States v. North Caro-
lina, 136 U. S., 211. That was an action of debt brought in this
court by the United States against the State of North Carolina,
upon certain bonds issued by that State. The State appeared, the
case was determined here upon its merits, and judgment was ren-
dered for the State. It is true that no question was made as to the
jurisdiction of this court, and nothing was therefore said in the
opinion upon that subject. But it did not escape the attention
of the court, and the judgment would not have been rendered
except upon the theory that this court has original jurisdiction of
a suit by the United States against a State. As, however, the
question of jurisdiction is vital in this case, and is distinctly raised,
it is proper to consider it upon its merits. . . . [Here follows
a recital of art. 3, 2, of the Constitution, and the llth amend-
ment.]
It is apparent upon the face of these clauses that in one class
of cases the jurisdiction of the courts of the Union depends "on
the character of the cause, whoever may be the parties," and, in
the other, on the character of the parties, whatever may be the
subject of controversy. Cohens v. Virginia, 6 Wheat., 26-i, 378, 393.
The present suit falls in each class, for it is, plainly, one arising
under the Constitution, laws and treaties of the United States,
and, also, one in which the United States is a party. It is, there-
fore, one to which, by the express words of the Constitution, the
judicial power of the United States extends. That a Circuit Court
of the United States has not jurisdiction, under existing statutes,
of a suit by the United States against a State, is clear; for by the
Revised Statutes it is declared as was done by the Judiciary Act
of 1789 thait "the Supreme Court shall have exclusive jurisdic-
tion of all controversies of a civil nature where a State is a party,
except between a State and its citizens, or between a State and
citizens of other States or aliens, in which latter cases it shall have
original, but not exclusive, jurisdiction.' 5 Rev. Stat., 687; Act
of September 24, 1789, c. 20, 13; 1 Stat., 80. Such exclusive
jurisdiction was given to this court, because it best comported
with the dignity of a State, that a case in which it was a party
should be determined in the highest, rather than in a subordinate
judicial tribunal of the nation. Why then may not this court take
original cognizance of the present suit involving a question of
boundary between a Territory of the United States and a State?
The words in the Constitution, "in all cases ... in which
UNITED STATES V. TEXAS. 643
a State shall be party, the Supreme Court shall have original juris-
diction/' necessarily refer to all cases mentioned in the preceding
clause in which a State may be made, of right, a party defendant,
or in which a State may, of right, be a party plaintiff. It is ad-
mitted that these words do not refer to suits brought against a
State by its own citizens or by citizens of other States, or by citi-
zens or subjects of foreign Stages, even where such suits arise
under the Constitution, laws and treaties of the United States,
because the judicial power of the United States does not extend
to suits of individuals against States. Hans v. Louisiana, 134
U. S., 1, and authorities there cited; North Carolina v. Temple,
134 U. S., 22, 30. It is, however, said that the words last quoted
refer only to suits in which a State is a party, and in which, also,
the opposite party is another State of the Union or a foreign State.
This cannot be correct, for it must be conceded that a State can
bring an original suit in this court against a citizen of another
State. Wisconsin v. Pelican Ins. Co., 127 U. S., 265, 287. Be-
sides, unless a State is exempt altogether from suit by the United
States, we do not perceive upon what sound rule of construction
suits brought by the United States in this court especially if they
be suits the correct decision of which depends upon the Consti-
tution, laws or treaties of the United States are to be excluded
from its original jurisdiction as defined in the Constitution. That
instrument extends the judicial power of the United States "to
all cases," in law and equity, arising under the Constitution, laws
and treaties of the United States, and to controversies in which
the United States shall be a party, and confers upon this court
original jurisdiction "in all cases" "in which a State shall be
party," that is, in all cases mentioned in the preceding clause in
which a State may, of right, be made a party defendant, as well
as in all cases in which a State may, of right, institute a suit in a
court of the United States. The present case is of the former
class. We cannot assume that the framers of the Constitution,
while extending the judicial power of the United States to con-
troversies between two or more States of the Union, and between a
State of the Union and foreign States, intended to exempt a State
altogether from suit by the General Government. They could not
have overlooked the possibility that controversies, capable of judi-
cial solution, might arise between the United States and some of
the States, and that the permanence of the Union might be en-
dangered if to some tribunal was not intrusted the power to deter-
mine them according to the recognized principles of law. And to
what tribunal could a trust so momentous be more appropriately
644 CASES ON CONSTITUTIONAL LAW.
committed than to that which the people of the United States, in
order to form a more perfect Union, establish justice and insure
domestic tranquillity, have constituted with authority to speak for
all the people and all the States, upon questions before it to which
the judicial power of the nation extends? It would be difficult
to suggest any reason why this court should have jurisdiction to
determine questions of boundary between two or more States, but
not jurisdiction of controversies of like character between the
United States and a State. . . . [Here is given an extract
from Hans v. Louisiana, 134 U. S., 1.]
That case and others in this court relating to the suability of
States, proceeded upon the broad ground that "it is inherent in
the nature of sovereignty not to be amenable to the suit of an
individual without its consent."
The question as to the suability of one government by another
government rests upon wholly different grounds. Texas is not
called to the bar of this court at the suit of an individual, but at
the suit of the government established for the common and equal
benefit of the people of all the States. The submission to judicial
solution of controversies arising between these two governments,
"each sovereign, with respect to the objects committed to it, and
neither sovereign with respect to the objects committed to
the other," McCulloch v. State of Maryland, 4 Wheat., 316,
400, 410, but both subject to the supreme law of the land, does
.no violence to the inherent nature of sovereignty. The States
of the Union have agreed, in the Constitution, that the judicial
power of the United States shall extend to all cases arising under
the Constitution, laws and treaties of the United States, without
regard to the character of the parties (excluding, of course, suits
against a State by its own citizens or by citizens of other States,
or by citizens or subjects of foreign States), and equally to con-
troversies to which the United States shall be a party, without
regard to the subject of such controversies, and that this court
may exercise original jurisdiction in all such cases, "in which a
State shall be party," without excluding those in which the United
States may be the opposite party. The exercise, therefore, by this
, court, of such original jurisdiction in a suit brought by one State
against another to determine the boundary line between them, or
in a suit brought by the United States against a State to deter-
mine the boundary between a Territory of the United States and
that State, so far from infringing, in either case, upon the sov-
ereignty, is with the consent of the State sued. Such consent was
UNITED STATES v. TEXAS. 645
given by Texas when admitted into the Union upon an equal foot-
ing in all respects with the other States.
We are of opinion that this court has jurisdiction to determine
the disputed question of boundary between the United States and
Texas.
It is contended that, even if this court had jurisdiction, the dis-
pute as to boundary must be determined in an action at law, and
that the act of Congress requiring the institution of this suit in
equity is unconstitutional and void, as, in effect, declaring that
legal rights shall be tried and determined as if they were equitable
rights. [Here follows a discussion of Fowler v. Lindsey, 3 Dall.,
411, and Ehode Island v. Massachusetts, 12 Pet., 657.] In view
of these precedents, it is scarcely necessary for the court to exam-
ine this question anew. Of course, if a suit in equity is appropriate
for determining the boundary between two States, there can be
no objection to the present suit as being in equity and not at law.
It is not a suit simply to determine the legal title to, and the
ownership of, the lands constituting Greer County. It involves
the larger question of governmental authority and jurisdiction
over that territory. The United States, in effect, asks the specific
execution of the terms of the treaty of 1819, to the end that the
disorder and public mischiefs that will ensue from a continuance
of the present condition of things may be prevented. The agree-
ment, embodied in the treaty, to fix the lines with precision, and
to place landmarks to designate the limits o*f the two contracting
nations, could not well be enforced by an action at law. The bill
and amended bill make a case for the interposition of a court of
equity. Demurrer overruled.
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE
LAMAR, dissenting.
MR. JUSTICE LAMAR and myself are unable to concur in the
decision just announced.
This court has original jurisdiction of two classes of cases only,
those affecting ambassadors, other public ministers and consuls,
and those in which a State shall be a party.
The judicial power extends to "controversies between two or
more States;" "between a State and citizens of another State;"
and "between a State or the citizens thereof, and foreign States,
citizens or subjects." Our original jurisdiction, which depends
solely upon the character of the parties, is confined to the cases
646 CASES ON CONSTITUTIONAL LAW.
enumerated, in which a State may be a party, and this is not one
of them.
The judicial power also extends to controversies to which the
United States shall be a party, but such controversies are not in-
cluded in the grant of original jurisdiction. To the controversy
here the United States is a party.
We are of opinion, therefore, that this case it not within the
original jurisdiction of the court.
XV. POLITICAL QUESTIONS.
LUTHEE v. BORDEN.
7 Howard, 1. Decided 1848.
THE first of these cases came up by a writ of error, the second
upon a certificate of division of opinion by the judges of the cir-
cuit court of the United States for the district of Rhode Island.
The first case is stated in the opinion of the court. The second
requires no statement, as it went off, for want of jurisdiction. . . .
TANEY, C. J., delivered the opinion of the court.
This case has arisen out of the unfortunate political differ-
ences which agitated the people of Rhode Island in 1841 and 1842.
It is an action of trespass brought by Martin Luther, the plaint-
iff in error, against Luther M. Borden and other defendants, in
the circuit court of the United States for the district of Rhode
Island, for breaking and entering the plaintiff's house. The de-
fendants justify upon the ground that large numbers of men were
assembled in different parts of the State for the purpose of over-
throwing the government by military force, and were actually
levying war upon the State; that, in order to defend itself from
this insurrection, the State was declared by competent authority
to be under martial law; that the plaintiff was engaged in the in-
surrection; and that the defendants, being in the military service
of the State, by command of their superior officer, broke and
entered the house and searched the rooms for the plaintiff, who
was supposed to be there concealed, in order to arrest him, doing
as little damage as possible. The plaintiff replied, that the tres-
pass was committed by the defendants of their own proper wrong,
and without any such cause; and upon the issue joined on this
replication, the parties proceeded to trial. . . . The existence
and authority of the government under which the defendants acted,
was called in question; and the plaintiff insists, that, before the
acts complained of were committed, that government had been dis-
647
648 CASES ON CONSTITUTIONAL LAW.
placed and annulled by the people of Rhode Island, and that the
plaintiff was engaged in supporting the lawful authority of the
State, and the defendants themselves were in arms against it. . .
The fourth section of the fourth article of the constitution of
the United States provides that the United States shall guarantee
to every State in the Union a republican form of government, and
shall protect each of them against invasion; and on the applica-
tion of the legislature or of the executive, (when the legislature
cannot be convened) against domestic violence.
Under this article of the constitution it rests with congress to
decide what government is the established one in a State. For
as the United States guarantee to each State a republican govern-
ment, congress must necessarily decide what government is estab-
lished in the State before it can determine whether it is republican
or not. And when the senators and representatives of a State are
admitted into the councils of the Union, the authority of the gov-
ernment under which they are appointed, as well as its republican
character, is recognized by the proper constitutional authority.
And its decision is binding on every other department of the gov-
ernment, and could not be questioned in a judicial tribunal. It
is true that the contest in this case did not last long enough to
bring the matter to this issue; and as no senators or representatives
were elected under the authority of the government of which Mr.
Dorr was the head, congress was not called upon to decide the con-
troversy. Yet the right to decide is placed there, and not in the
courts.
- So, too, as relates to the clause in the above-mentioned article of
the constitution, providing for cases of domestic violence. It
rested with congress, too, to determine upon the means proper to
be adopted to fulfill this guarantee. They might, if they had
deemed it most advisable to do so, have placed it in the power of
a court to decide when the contingency had happened which re-
quired the federal government to interfere. But congress thought
otherwise, and no doubt wisely; and by the act of February 28,
1795, provided that, "in case of an insurrection in any State
against the government thereof, it shall be lawful for the Presi-
dent of the United States, on application of the legislature of such
State or of the executive, when the legislature cannot be con-
vened, to call forth such number of militia of any other State or
States, as may be applied for, as he may judge sufficient to sup-
press such insurrection."
By this act, the power of deciding whether the exigency had
arisen upon which the government of the United States is bound
LUTHER V. BORDEN. 649
to interfere, is given to the President. He is to act upon the appli-
cation of the legislature, or of the executive, and consequently he
must determine what body of men constitute the legislature, and
who is the governor, before he can act. The fact that both parties
claim the right to the government, cannot alter the case,. for both
cannot be entitled to it. If there is an armed conflict, like the one
of which we are speaking, it is a case of domestic violence, and
one of the parties must be in insurrection against the lawful gov-
ernment. And the President must, of necessity, decide which is
the government, and which party is unlawfully arrayed against it,
before he can perform the duty imposed upon him by the act of
congress.
After the President has acted and called out the militia, is a
circuit court of the United States authorized to inquire whether
his decision was right? Could the court, while the parties were
actually contending in arms for the possession of the government,
call witnesses before it, and inquire which party represented a ma-
jority of the people? If it could, then it would become the duty of
the court (provided it came to the conclusion that the President
had decided incorrectly) to discharge those who were arrested or
detained by the troops in the service of the United States, or the
government which the President was endeavoring to maintain. If
the judicial power extends so far, the guarantee contained in the
constitution of the United States is a guarantee of anarchy, and
not of order. Yet if this right does not reside in the courts when
the conflict is raging if the judicial power is, at that time, bound
to follow the decision of the political, it must be equally bound
when the contest is over. It cannot, when peace is restored, pun-
ish as offenses and crimes the acts which it before recognized, and
was bound to recognize, as lawful.
It is true that in this case the militia were not called out by
the President. But upon the application of the governor under
the charter government, the President recognized him as the
executive power of the State, and took measures to call out the
militia to support his authority, if it should be found necessary
for the general government to interfere; and it is admitted in the
argument that it was the knowledge of this decision that put an
end- to the armed opposition to the charter government, and pre-
vented any further efforts to establish by force the proposed con-
stitution. The interference of the President, therefore, by an-
nouncing his determination, was as effectual as if the militia had
been assembled under his orders. And it should be equally au-
thoritative. For certainly no court of the United States, with a
650 CASES ON CONSTITUTIONAL LAW.
knowledge of this decision, would have been justified in recogniz-
ing the opposing party as the lawful government, or in treating as
wrong-doers or insurgents the officers of the government which
the President had recognized, and was prepared to support by an
armed force. In the case of foreign nations, the government ac-
knowledged by the President is always recognized in the courts of
justice. And this principle has been applied by the act of congress
to the sovereign States of the Union.
It is said that this power in the President is dangerous to liberty,
and may be abused. All power may be abused if placed in un-
worthy hands. But it would be difficult, we think, to point out
any other hands in which this power would be more safe, and at
the same time equally effectual. When citizens of the same State
are in arms against each other, and the constituted authorities
unable to execute the laws, the interposition of the United States
must be prompt, or it is of little value. The ordinary course of
proceedings in courts of justice would be utterly unfit for the
crisis. And the elevated office of the President, chosen as he is by
the people of the United States, and the high responsibility he
could not fail to feel when acting in a case of so much moment,
appear -to furnish as strong safeguards against a wilful abuse of
power as human prudence and foresight could well provide. At
all events, it is conferred upon him by the constitution and laws
of the United States, and must, therefore, be respected and en-
forced in its judicial tribunals.
A question very similar to this arose in the case of Martin v.
Mott, 12 Wheat., 29-31. The first clause of the first section of the
act of February 28, 1795, of which we have been speaking, author-
izes the President to call out the militia to repel invasion. It is
the second clause in the same section which authorizes the call to
suppress an insurrection against a state government. The power
given to the President in each case is the same, with this differ-
ence only, that it cannot be exercised by him in the latter case,
except upon the application of the legislature or executive of the
State. The case above mentioned arose out of a call made by the
President, by virtue of the power conferred by the first clause; and
the court said that "whenever a statute gives a discretionary power
to any person, to be exercised by him upon his own opinion of cer-
tain facts, it is a sound rule of construction that the statute con-
stitutes him the sole and exclusive judge of the existence of those
facts." The grounds upon which that opinion is maintained are
set forth in the report, and, we think, are conclusive. The same
principle applies to the case now before the court. Undoubtedly,
LUTHER v. BORDEN. 651
if the President, in exercising this power, shall fall into error, or
invade the rights of the people of the State, it would be in the
power of congress to apply the proper remedy. But the courts
must administer the law as they find it. ...
The remaining question is, whether the defendants, acting under
military orders issued under the authority of the government, were
justified in breaking and entering the plaintiff's house. In rela-
tion to the act of the legislature declaring martial law, it is not
necessary in the case before us to inquire to what extent, nor under
what circumstances, that power may be exercised by a State. Un-
questionajbly, a military government, established as the perma-
nent government of the State, would not be a republican govern-
ment, and it would be the duty of congress to overthrow it. But
the law of Rhode Island evidently contemplated no such govern-
ment. It was intended merely for the crisis, and to meet the peril
in which the existing government was placed bv the armed resist-
ance to its authority. It was so understood and construed by the
state authorities. And unquestionably, a State may use its mili-
tary power to put down an armed insurrection, too strong to be
controlled by the civil authority. The power is essential to the
existence of every government, essential to the preservation of
order and of free institutions, and is as necessary to the States of
this Union, as to any other government. The State itself must
determine what degree of force the crisis demands. And if the
government of Ehode Island deemed the armed opposition so for-
midable, and so ramified throughout the State as to require the
use of its military force and the declaration of martial law, we
see no ground upon which this court can question its authority. It
was a state of war, and the established government resorted to the
rights and usages of war to maintain itself, and to overcome the
unlawful opposition. And in that state of things, the officers
engaged in its military service might lawfully arrest any one, who,
from the information before them, they had reasonable grounds
to believe was engaged in the insurrection, and might order a
house to be forcibly entered and searched, when there were reason-
able grounds for supposing he might be there concealed. Without
the power to do this, martial law and the military array of the
government would be mere parade, and rather encourage attack
than repel it. No more force, however, can be used than is neces-
sary to accomplish the object. And if the power is exercised for
the purposes of oppression, or any injury wilfully done to person
or property, the party by whom, or by whose order, it is commit-
ted, would undoubtedly be answerable. . . .
652 CASES ON CONSTITUTIONAL LAW.
Much of the argument on the part of the plaintiff turned upon
political rights and political questions, upon which the court has
been urged to express an opinion. We decline doing so. The high
power has been conferred on this court of passing judgment upon
the acts of the state sovereignties, and of the legislative and execu-
tive branches of the federal government, and of determining
whether they are beyond the limits of power marked out for them
respectively by the constitution of the United States. This tribunal,
therefore, should be the last to overstep the boundaries which limit
its own jurisdiction. And while it should always be ready to meet
any question confided to it by the constitution, it is equally its
duty not to pass beyond its appropriate sphere of action, and to
take care not to involve itself in discussions which properly belong
to other forums. Xo one, we believe, has ever doubted the propo-
sition, that, according to the institutions of this country, the sov-
ereignty in every State resides in the people of the State, and
that they may alter and change their form of government at their
own pleasure. But whether they have changed it or not, by
abolishing an old government, and establishing a new one in its
place, is a question to be settled by the political power. And when
that power has decided, the courts are bound to take notice of its
decision, and to follow it.
The judgment of the circuit court must, therefore, be affirmed.
STATE OF MISSISSIPPI v. JOHXSOX, PBESIDEXT.
4 Wallace, 475. Decided 1866.
THIS was a motion made by Messrs. Sharkey and E. J. Walker,
on behalf of the State of Mississippi, for leave to file a bill in
the name of the State praying this court perpetually to enjoin
and restrain Andrew Johnson, a citizen of the State of Tennessee
and President of the United States, and his officers and agents
appointed for that purpose, and especially E. 0. C. Ord, assigned
as military commander of the district where the State of Missis-
sippi is, from executing or in any manner carrying out two acts
of Congress named in the bill, one "An act for the more efficient
government of the rebel states," passed March 2d, 1867, not-
withstanding the President's veto of it as unconstitutional, and
MISSISSIPPI v. JOHNSON. 653
the other an act supplementary to it, passed in the same way
March 23d, 1867; acts commonly called the Reconstruction Acts.
The former of these acts, reciting that no legal State governments
or adequate protection for life or property now exists in the rebel
States of Virginia, North Carolina, South Carolina, Georgia, Missis-
sippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that
it was necessary that peace and good order should be enforced in
them until loyal and republican State governments could be legally
established, divided the States named into five military districts,
and made it the duty of the President to assign to each one an
officer of the army, and to detail a sufficient military force to
enable him to perform his duties and enforce his authority within
his district. It made it the duty of this officer to protect all
persons in their rights, to suppress insurrection, disorder, vio-
lence, and to punish, or cause to be punished, all disturbers of the
public peace and criminals, either through the local civil tribunals
or through military commissions, which the act authorized. It
provided, further, that on the formation of new constitutions and
certain conditions which the act prescribed, the States respectively
shall be declared entitled to representation in Congress and the
preceding part of the act become inoperative; and that until they
were so admitted any civil governments which might exist in them
should be deemed provisional only, and subject to the paramount
authority of the United States, at any time to abolish, modify,
control, or supersede it.
The second of the two acts related chiefly to the registration of
voters who were to form the new constitutions of the States in
question.
The bill set out the political history of Mississippi so far as
related to its having become one of the United States; and "that
forever after it was impossible for her people, or for the State
in its corporate capacity, to dissolve that connection with the other
States, and that any attempt to do so by secession or otherwise
was a nullity;" and she "now solemnly asserted that her connec-
tion with the Federal government was not in anywise thereby de-
stroyed or impaired;" and she averred and charged "that the Con-
gress of the United States cannot constitutionally expel her from
the Union, and that any attempt which practically does so is
a nullity." . . . [Here follows an extract from the bills.]
It then charged that, from information and belief, the said
Andrew Johnson, President, in violation of the Constitution, and
in violation of the sacred rights of the States, would proceed, not-
withstanding his vetoes, and as a mere ministerial duty, to the
654 CASES ON CONSTITUTIONAL LAW.
execution of said acts, as though they were the law of the land,
which the vetoes prove he would not do if he had any discretion,
or that in doing so he performed anything more than a mere
ministerial duty; and that with the view to the execution of
said acts he had assigned General E. 0. C. Ord to the command
of the States of Mississippi and Arkansas.
Upon an intimation made a few days before by Mr. Sharkey,
of his desire to file this bill, the Attorney-General objected to it
in limine, as containing matter not fit to be received. The Chief
Justice then stated that while as a general thing a motion to file
a bill was granted as of course, yet if it was suggested that the bill
contained scandalous or impertinent matter, or was in other re-
spects improper to be received, the court would either examine
the bill or refer it to a master for examination. The only matter,
therefore, which would now be considered was the question of
leave to file the bill
THE CHIEF JUSTICE delivered the opinion of the court. . . .
A motion was made, some days since, in behalf of the State
of Mississippi, for leave to file a bill in the name of the State,
praying this court to perpetually enjoin and restrain Andrew
Johnson, President of the United States, and E. 0. C. Ord, general
commanding in the District of Mississippi and Arkansas, from
executing, or in any manner carrying out, certain acts of Con-
gress therein named.
The acts referred to are those of March 2d, and March 23d,
1867, commonly known as the Keconstruction Acts.
The Attorney-General objected to the leave asked for, upon
the ground that no bill which makes a President a defendant,
and seeks an injunction against him to restrain the performance
of his duties as President, should be allowed to be filed in this
court.
This point has been fully argued, and we will now dispose of it.
We shall limit our inquiry to the question presented by the
objection, without expressing any opinion on the broader issues
discussed in argument, whether, in any case, the President of the
United States may be required, by the process of this court, to
perform a purely ministerial act under a positive law, or may be
held amenable, in any case, otherwise than by impeachment for
crime.
The single point which requires consideration is t^ i>c * Can the
President be restrained by injunction from carrying into effect
an act of Congress alleged 'to b^MinconstitutionaT?
MISSISSIPPI v. JOHNSON. 655
It is assumed by the counsel for the State of Mississippi, that
the President, in the execution of the Reconstruction Acts, is re-
quired to perform a mere ministerial duty. In this assumption
there is, we think, a confounding of the terms ministerial and
executive, which are by no means equivalent in import.
A ministerial duty, the performance of which may, in proper
cases, be required of the head of a department, by judicial process,
jjLjrne in respect, to which nothing is left to discretion. It _is_a
simple, definite duty, arising under conditions admitted or proved
to exist, and imposed by law.
The case of Marbury v. Madison, Secretary of State, 1 furnishes
an illustration. A citizen had been nominated, confirmed, and
appointed a justice of the peace for the District of Columbia, and
his commission had been made out, signed, and sealed. Nothing
remained to be done except delivery, and the duty of delivery was
imposed by law on the Secretary of State. It was held that the
performance of this duty might be enforced by mandamus issuing
from a court having jurisdiction.
So, in the case of Kendall, Postmaster-General, v. Stockton &
Stokes, 2 an act of Congress had directed the Postmaster-General
to credit Stockton & Stokes with such sums as the Solicitor of
the Treasury should find due to them; and that officer refused to
credit them with certain sums, so found due. It was held that
the crediting of this money was a mere ministerial duty, the per-
formance of which might be judicially enforced.
In each of these casesjotbing was lefj to discrptirm. There was
no room for the exercise of judgment. The law required the per-
formance of a single specific act; and that performance, it was
heldjjnight be required by mandamus.
Very, different is the duty of the President in the exercise of
the power to see that the laws are faithfully, executed, and among
these laws the acts named in Hxa-bill. By the first of these acts
he is required to assign generals to command in the several mili-
tary districts, and to detail sufficient military force to enable
such officers to discharge their duties under the law. By the sup-
plementary acts, other duties are imposed on the several command-
ing generals, and these duties must necessarily be performed under
the supervision of the President as commander-in-chief. The_duty
thus imposed on the President is in no just sense ministerial. It is
purely executive and political.
An attempt on the part of thg_ jndim'al department of., the gov-
ernment to enforce the performance of such duties by the Presi-
1 1 Cranch, 137. - 12 Peters, 527.
656 CASES ON CONSTITUTIONAL LAW.
dent mighLJbe justly characterizecL-in the language of Chief Jus-
tice Marshall, as "anjibsurd and
It is true that in the instance before us the interposition of the
court is not sought to enforce action by the Executive under con-
stitutional legislation, but to restrain such action under legisla-
tion alleged to be unconstitutional. But we are unable to per-
ceive that this circumstance takes the case out of the general
principles which forbid judicial interference with the exercise of
Executive discretion.
It was admitted in the argument that the application now made
to us is without a precedent; and this is of much weight against it.
Had it been supposed at the bar that this court would, in any
case, interpose, by injunction, to prevent the execution of an un-
constitutional act of Congress, it can hardly be doubted that appli-
cations with that object would have been heretofore addressed to it.
Occasions have not been wanting.
The constitutionality of the act for the annexation of Texas
was vehemently denied. It made important and permanent changes
in the relative importance of States and sections, and was by many
supposed to be pregnant with disastrous results to large interests
in particular States. But no one seems to have thought of an ap-
plication for an injunction against the execution of the act by
the President.
And yet it is difficult to perceive upon what principle the appli-
cation now before us can be allowed and similar applications in
that and other cases have been denied.
The fact that no such application was ever before made in any
case indicates the general judgment of the profession that no such
application should be entertained.
It will hardly be contended that Congress [the courts?] can
interpose, in any case, to restrain the enactment of an unconsti-
tutional law; and yet how can the right to judicial interposition
to prevent such an enactment, when the purpose is evident and
the execution of that purpose certain, be distinguished, in prin-
ciple, from the right to such interposition against the execution
of such a law by the President?
The Congress is the legislative^ department of the government;
the President is the executive department. Xeither can be re-
strained in its action by the judicial department; though the
acts of both, when performed^-are, in proper cases, subject to its
cognizance.
The impropriety of such interference will be clearly seen upon
consideration of its possible consequences.
MISSISSIPPI v. JOHNSON. 657
Suppose. JJie_ bill filed and_ the injuncjiaiL^piayed for allowed.
If the President refuse obedience, it is needless to observe that
the court is without power to enforce its process. If, on the other
hand, the President complies with the order of the court and
refuses to execute the acts of Congress, is it not clear that a col-
lision may occur between the executive and legislative departments
of the government? May not the House of Representatives im-
peach the President for such refusal? And in that case could this\
court interfere, in behalf of the President, thus endangered by
compliance with its mandate, and restrain by injunction the Senate
of the United States from sitting as a court of impeachment?
Would the strange spectacle be offered to the public world of an
a/ttempt by this court to arrest proceedings in that court?
These questions answer themselves.
It is true that a State may file an original bill in this court. And
it may be true, in some cases, that such a bill may be filed against
the United States. But we are_ fully satisfied- that. this- court
has no jurisdiction of a bill to enjoin the President in the per-
formance of his official duties; and that no such bill ought to be
received by us.
It has been suggested that the bill contains a prayer that, if
the relief sought cannot be had against Andrew Johnson, as Presi-
dent, it may be granted against Andrew Johnson as a citizen of
Tennessee. But it is plain that relief as against the execution of
an act of Congress by Andrew Johnson, is relief against its execu-
tion by the President. A bill praying an injunction against the
execution of an act of Congress by the incumbent of the presi-
dential office cannot be received, whether it describes him as Presi-
dent or as a citizen of a State.
The motion for leave to file the bill is, therefore, Denied.
NOTE. Whether any particular class of Indians are still to be
regarded as a tribe, or have ceased to hold the tribal relation, is
primarily a question for the political departments of the govern-
ment, and if they have decided it, this court will follow their
lead. United States v. Holliday, 3 Wallace, 407.
It belongs exclusively to the government to recognize the polit-
ical existence of new foreign states, and until it does so, courts
must consider the old state of things as remaining. Gelston v.
Hoyt, 3 Wheaton, 246.
In a controversy between the United States and a foreign sov-
ereign as to boundary, this court must follow the decision of that
department of the government intrusted by the constitution with
42
658 CASES ON CONSTITUTIONAL LAW.
the care of its foreign relations, especially if sanctioned by the
legislative power. Foster v. Neilson, 2 Peters, 253.
A bill in equity filed by one of the United States to enjoin the
Secretary of War and other officers who represent the Executive
authority of the United States from carrying into execution cer-
tain acts of Congress, on the ground that such execution would
annul and totally abolish the existing State government of the
State and establish another and different one in its place in other
words, would overthrow and destroy the corporate existence of the
State by depriving it of all means and instrumentalities whereby its
existence might, and otherwise would, be maintained calls for
judgment upon a political question, and will therefore not be
entertained by this court. State of Georgia v. Stanton, 6 Wal-
lace, 50.
The President, in a message to congress, and in the correspond-
ence carried on with the government of Buenos Ayres, having
denied the jurisdiction of that country over the Falkland Islands,
the courts must take the fact so to be. Williams v. Suffolk Insur-
ance Co., 13 Peters, 415.
Who is the sovereign, de jure or de facto, of a territory is not
a judicial but a political question, the determination of which by
the legislative and executive departments of any government con-
clusively binds the judges, as well as all other officers, citizens and
subjects of that government. Jones v. United States, 137 U. S.,
203.
XVI. ENFORCEMENT OF EXECUTIVE POWER
BY JUDICIAL PROCESS.
IN EE DEBS, PETITIONER.
158 U. S., 564. Decided 1895.
[On July 2, 1894, the district attorney for the Northern District
of Illinois, acting under the direction of the Attorney-General
of the United States, filed a bill of complaint in the Circuit Court
of the United States for the Northern District of Illinois against
these petitioners and others. The bill averred that the twenty-two
railroads named therein were engaged in the business of inter-
state commerce and also that each of them was under contract
to carry the United States mails; that four of the defendants
were officers of the American Eailway Union; that these four offi-
cers combined with others to compel an adjustment of a dispute
between the Pullman Palace Car Company and its employes by
boycotting the cars of the company; that to make the boycott
effective, they had prevented certain of the railroads running
out of Chicago from operating their trains, and were combining
to extend such boycott against the Pullman cars by causing strikes
among employes of all ro.ads attempting to haul the same; that
the defendants and others unknown proceeded by collecting to-
gether in large numbers, by threats, intimidation, force and vio-
lence, to prevent the said railways from employing other persons
to fill the vacancies aforesaid; that the defendants and others
unknown did with force and violence obstruct, derail, and wreck
the engines and trains of the said railways, both passenger and
freight, engaged in interstate commerce and in carrying the United
States mails. Following these allegations was a prayer for an in-
junction. The court thereupon ordered an injunction command-
ing the defendants "and all persons combining and conspiring with
them, and all other persons whomsoever absolutely to desist and
refrain from" doing the unlawful acts specified in the bill. The
injunction was served on those of the defendants who are here as
659
660 CASES ON CONSTITUTIONAL LAW.
petitioners. On July 17 the district attorney filed an informa-
tion for an attachment against the four defendants, and on August
1 a similar information against the other petitioners. A hearing
was had before the Circuit Court, and on December 14, these peti-
tioners were found guilty of contempt and sentenced to imprison-
ment in the county jail for terms varying from three to six months.
Having been committed to jail, they on January 14, 1895, applied
to this court for a writ of error and also a writ of habeas corpus.
The former was denied on the ground that the order of the Circuit
Court was not a final judgment or decree. The latter is now to
be considered.]
MR. JUSTICE BEEWEE ... delivered the opinion of the
court.
The case presented by the bill is this: The United States,
finding that the interstate transportation of persons and property,
as well as the carriage of the mails, is forcibly obstructed, and that
a combination and conspiracy exists to subject the control of such
transportation to the will of the conspirators, applied to one of
their courts, sitting as a court of equity, for an injunction to re-
strain such obstruction and prevent carrying into effect such con-
spiracy. Two questions of importance are suggested: First. Are
the relations of the general government to interstate commerce and
the transportation of the mails such as to authorize a direct inter-
ference to prevent a forcible obstruction thereof? Second. If
authority exists, as authority in government implies both power
and duty, has a court of equity jurisdiction to issue an injunction
in aid of the performance of such duty?
First. What are the relations of the general government to
interstate commerce and the transportation of the mails? They
are those of direct supervision, control, and management. While
under the dual system which prevails with us the powers of gov-
ernment are distributed between the State and the Nation, and
while the latter is properly styled a government of enumerated
powers, yet within the limits of such enumeration it has all the
attributes of sovereignty, and, in the exercise of those enumerated
powers, acts directly upon the citizen, and not through the inter-
mediate agency of the State.
"The government of the Union, then, is, emphatically and truly,
a government of the people. In form and in substance it emanates
from them. Its powers are granted by them, and are to be exer-
cised directly on them, and for their benefit."
"No trace is to be found in the Constitution of an intention to
IN RE DEBS, PETITIONER. 661
create a dependence of the government of the Union on those of
the States, for the execution of the great powers assigned to it. Its
means are adequate to its ends, and on those means alone was
it expected to rely for the accomplishment of its ends. To impose
on it the necessity of resorting to means which it cannot control,
which another government may furnish or withhold, would render
its course precarious, the result of its measures uncertain, and cre-
ate a dependence on other governments, which might disappoint
its most important designs, and is incompatible with the language
of the Constitution." Chief Justice Marshall in McCulloch v.
Maryland, 4 Wheat., 316, 405, 424.
"Both the States and the United States existed before the Con-
stitution. The people, through that instrument, established a more
perfect union by substituting a national government, acting, with
'ample power, directly upon the citizens, instead of the confederate
government, which acted with powers, greatly restricted, only upon
the States." Chief Justice Chase in Lane County v. Oregon, 7
Wall., 71, 76.
"We hold it be an incontrovertible principle, that the govern-
ment of the United States may, by means of physical force, exer-
cised through its official agents, execute on every foot of American
soil the powers and functions that belong to it. This necessarily
involves the power to command obedience to its laws, and hence
the power to keep the peace to that extent.
"This power to enforce its laws and to execute its functions in
all places does not derogate from the power of the State to execute
its laws at the same time and in the same places. The one' does
not exclude the other, except where both cannot be executed at
the same time. In that case, the words of the Constitution itself
show which is to yield. 'This Constitution, and all laws which
shall be made in pursuance thereof, . . . shall be the supreme
law of the land.' " Mr. Justice Bradley in Ex parte Siebold, 100
U. S., 371, 395. . . .
Among the powers expressly given to the national government
are the control of interstate commerce and the creation and man-
agement of a post office system for the nation. . . . [Here
follows a consideration of the statutes passed in the exercise of
these powers.]
Obviously these powers given to the national government over
interstate commerce and in respect to the transportation of the
mails were not dormant and unused. Congress had taken hold
of these two matters, and by various and specific acts had assumed
and exercised the powers given to it, and was in full discharge
662 CASES ON CONSTITUTIONAL LAW.
of its duty to regulate interstate commerce and carry the mails.
The validity of such exercise and the exclusiveness of its con-
trol had been again and again presented to this court for consider-
ation. It is curious to note the fact that in a large proportion of
the cases in respect to interstate commerce brought to this court
the question presented was of the validity of state legislation in its
bearings upon interstate commerce, and the uniform course of de-
cision has been to declare that it is not within the competency
of a State to legislate in such a manner as to obstruct interstate
r commerce. If a State with its recognized powers of sovereignty
is impotent to obstruct interstate commerce, can it be that any
mere voluntary association of individuals within the limits of that
State has a power which the State itself does not possess?
As, under the Constitution, power over interstate commerce and
the transportation of the mails is vested in the national govern-
ment, and Congress by virtue of such grant has assumed actual
and direct control, it follows that the national government may
prevent any unlawful and forcible interference therewith. But
how shall this be accomplished? Doubtless, it is within the com-
petency of Congress to prescribe by legislation that any interference
with these matters shall be offenses against the United States, and
prosecuted and punished by indictment in the proper courts. But
is that the only remedy? Have the vast interests of the nation
in interstate commerce, and in the transportation of the mails, no
other protection than lies in the possible punishment of those who
interfere with it? To ask the question is to answer it. By article
3, section 2, clause 3, of the Federal Constitution it is provided:
"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
crime shall have been committed." If all the inhabitants of a
State, or even a great body of them, should combine to obstruct
interstate commerce or the transporation of the mails, prosecutions
" for such offenses had in such a community would be doomed in
advance to failure. And if the certainty of such failure was known,
and the national government had no other way to enforce the free-
dom of interstate commerce and the transportation of the mails
than by prosecution and punishment for interference therewith,
the whole interests of the nation in these respects would be at
/ the absolute mercy of a portion of the inhabitants of that single
j State.
V But there is no such impotency^ in the national government. The
\ entire strength of the nation may be used to enforce in any part of
Vhe land the full and free exercise of all national powers and the
IN RE DEBS, PETITIONER. 6G3
security of all rights entrusted by the Constitution to its care.
The strong arm of the national government may be put forth to
brush away all obstructions to the freedom of interstate commerce
or the transportation of the mails. If the emergency arises, the
army of the Nation, and 'all its militia, are at the service of the
Ration to compel obedience to its laws.
But passing to the second question, is there no other alternative
than the use of force on the part of the executive authorities when-
ever obstructions arise to the freedom of interstate commerce or the
transportation of the mails? Is the army the only instrument
by which rights of the public can be enforced and the peace of the
nation preserved? Grant that any public nuisance may be forcibly
abated either at the instance of the authorities, or by any individ-
ual suffering private damage therefrom, the existence of this right
of forcible abatement is not inconsistent with nor does it destroy
/the right of appeal in an orderly way to the courts for a judicial
determination, and an exercise of their powers by writ of injunc-
tion and otherwise to accomplish the same result. . . .
So, in the case before us, the right to use force does not exclude
the right of appeal to the courts for a judicial determination and
f or the exercise of all their powers of prevention. Indeed, it is more
to the praise than to the blame of the government, that, instead
of determining for itself questions of right and wrong on the
part of these petitioners and their associates and enforcing that
determination by the club of the policeman and the bayonet of the
soldier, it submitted all those questions to the peaceful determina-
tion of judicial tribunals, and invoked their consideration and
judgment as to the measure of its rights and powers and the cor-
relative obligations of those against whom it made complaint. And
it is equally to the credit of the latter that the judgment of those
tribunals was by the great body of them respected, and the troubles
which threatened so much disaster terminated.
Neither can it be doubted that the government has such an
interest in the subject-matter as enables it to appear as party
plaintiff in this suit. It is said that equity only interferes for the
protection of property, and that the government has no property
interest. A sufficient reply is that the United States have a prop-
erty in the mails, the protection of which was one of the purposes
of this bill. . . .
We do not care to place our decision upon this ground alone.
Every government, entrusted, by the very terms of its being, with
powers and duties to be exercised and discharged for the general
welfare, has a right to apply to its own courts for any proper assist-
664 CASES ON CONSTITUTIONAL LAW.
ance in the exercise of the one and the discharge of the other, and
it is no sufficient answer to its appeal to one of those courts that
it has no pecuniary interest in the matter. The obligation which
it is under to promote the interest of all, and to prevent the wrong-
doing of one resulting in injury to the general welfare, is often
of itself sufficient to give it standing in the court. [Here fol-
lows a discussion of United States v. San Jacinto Tin Co., 125
U. S., 273, 285, and United States v. Bell Telephone Company,
128 U. S., 315, 367.]
It is obvious from these decisions that while it is not the prov-
ince of the government to interfere in any mere matter of private
controversy between individuals, or to use its great powers to
enforce the rights of one against another, yet, whenever the wrongs
complained of are such as affect the public at large, and are in
respect of matters which by the Constitution are entrusted to the
care of the Nation, and concerning which the Nation owes the
duty to all the citizens of securing to them their common rights,
then the mere fact that the government has no pecuniary interest
in the controversy is not sufficient to exclude it from the courts,
or prevent it from taking measures therein to fully discharge those
constitutional duties.
The national government, given by the Constitution power to
regulate interstate commerce, has by express statute assumed juris-
diction over such commerce when carried upon railroads. It is
charged, therefore, with the duty of keeping those highways of
interstate commerce free from obstruction, for it has always been
recognized as one of the powers and duties of a government to
remove obstructions from the highway under its control.
As said in Gilman v. Philadelphia, 3 Wall., 713, 724: "The
power to regulate commerce comprehends the control for that
purpose, and to the extent necessary, of all the navigable waters of
the United States which are accessible from a State other than those
in which they lie. For this purpose they are the public property
of the nation, and subject to all the requisite legislation by Con-
gress. This necessarily includes the power to keep them open
and free from any obstruction to their navigation, interposed
by the States or otherwise; to remove such obstructions when
they exist; and to provide, by such sanctions as they may deem
proper, against the occurrence of the evil and for the punish-
ment of the offenders. For these purposes, Congress possesses
all the powers which existed in the States before the adoption
of the national Constitution, and which have always existed in the
Parliament of England." . . .
IN RE DEBS, PETITIONER. 665
It is said that the jurisdiction heretofore exercised by the na-
tional government over highways has been in respect to water-'
ways the natural highways of the country and not over artifi-
/cial highways such as railroads; but the occasion for the exercise
f by Congress of its jurisdiction over the latter is of recent date.
/ Perhaps the first act in the course of such legislation is that here-
tofore referred to, of June 14, 1866, but the basis upon which
y rests its jurisdiction over artificial highways is the same as that
\which supports it over the natural highways. Both spring from
the power to regulate commerce. The national government has
no separate dominion over a river within the limits of a State; its
jurisdiction 'there is like that over land in the same State. Its
control over the river is simply by virtue of the fact that it is
one of the highways of interstate and international commerce.
The great case of Gibbons v. Ogden, 9 Wheat., 1, 197, in which
the control of Congress over inland waters was asserted, rested
that control on the grant of the power to regulate commerce. The
argument of the Chief Justice was that commerce includes naviga-
tion, "and a power to regulate navigation is as expressly granted
as if that term had been added to the word 'commerce.' }: In
order to fully regulate commerce with foreign nations it is essen-
tial that the power of Congress does not stop at the borders of the
nation, and equally so as to commerce among the States:
"The power of Congress, then, comprehends navigation within
the limits of every State in the Union, so far as that navigation
may be, in any manner, connected with 'commerce with foreign
nations, or among the several States, or with the Indian tribes.'
It may, of consequence, pass the jurisdictional line of New York,
and act upon the very wafers to which the prohibition now under
consideration applies."
See also Oilman v. Philadelphia, 3 Wall., 713, 725, in which
it was said: "Wherever 'commerce among the States' goes, the
power of the nation, as represented in this court, goes with it
to protect and enforce its rights."
Up to a recent date commerce, both interstate and international,
was mainly by water, and it is not strange that both the legislation
of Congress and the cases in the courts have been principally con-
cerned therewith. The fact that in recent years interstate com-
merce has come mainly to be carried on by railroads and over
artificial highways has in no manner narrowed the scope of the
constitutional provision, or abridged the power of Congress over
such commerce. On the contrary, the same fullness of control
666 CASES ON CONSTITUTIONAL LAW.
f exists in the one case as in the other, and the same power to
/ remove obstructions from the one as from the other.
V. Constitutional provisions do not change, but their operation
extends to new matters as the modes of business and the habits
of life of the people vary with each succeeding generation. The
law of the common carrier is the same today as when transportation
on land was by coach and wagon, and on water by canal boat and
sailing vessel, yet in its actual operation it touches and regulates
transportation by modes then unknown, the railroad train and
the steamship. Just so is it with the grant to the national gov-
ernment of power over interstate commerce. The Constitution
has not changed. The power is the same. But it operates today
upon modes of interstate commerce unknown to the fathers, and
it will operate with equal force upon any new modes of such
commerce which the future may develop. . . .
"We have given to this case the most careful and anxious atten-
tion, for we realize that it touches closely questions of supreme
importance to the people of this country. Summing up our con-
clusions, we hold that the government of the United States is
one having jurisdiction over every foot of soil within its territory,
and acting directly upon each citizen; that while it is a govern-
ment of enumerated powers, it has within the limits of those
powers all the attributes of sovereignty; that to it is committed
power over interstate commerce and the transmission of the mail;
that the powers thus conferred upon the national government are
not dormant, but have been assumed and put into practical exer-
cise by the legislation of Congress; that in the exercise of those
powers it is competent for the nation to remove all obstructions
upon highways, natural or artificial, to the passage of interstate
commerce or the carrying of the mail; that while it may be com-
petent for the government (through the executive branch and
in the use of the entire executive power of the nation) to forcibly
remove all such obstructions, it is equally within its competency
to appeal to the civil courts for an inquiry and determination as to
the existence and character of any alleged obstructions, and if
such are found to exist, or threaten to occur, to invoke the powers
/of these courts to remove or restrain such obstructions; that the
/ jurisdiction of courts to interfere in such matters by injunction
I is one recognized from ancient times and by indubitable author-
i ity; that such jurisdiction is not ousted by the fact that the ob-
y structions are accompanied by or consist of acts in themselves vio-
lations of the criminal law; that the proceeding by injunction
is of a civil character, and may be enforced by proceedings in con-
IN RE DEBS, PETITIONER. 667
tempt; that such proceedings are not in execution of the crim-
inal laws of the land; that the penalty for a violation of injunc-
tion is no substitute for and no defense to a prosecution for any
criminal offenses committed in the course of such violation; that
the complaint filed in this case clearly showed an existing obstruc-
tion of artificial highways for the passage of interstate commerce
and the transmission of the mail an obstruction not only tem-
porarily existing, but threatening to continue; that under such
complaint the Circuit Court had power to issue its process of
injunction; that it having been issued and served on these de-
fendants, the Circuit Court had authority to inquire whether its
orders had been disobeyed, and when it found that they had been,
then to proceed under section 725, Revised Statutes, which grants
power "to punish by fine or imprisonment, . . . disobedi-
ence, ... by any party ... or other person, to any
lawful writ, process, order, rule, decree or command," and enter
the order of punishment complained of; and, finally, that, the
Circuit Court, having full jurisdiction in the premises, its finding
of the fact of disobedience is not open to review on habeas corpus
in this or any other court. . . .
The petition for a writ of habeas corpus is Dewed.
NOTE. See articles by F. J. Stimson on The Modern Use of In-
junctions, Political Science Quarterly, X. 189 (1895), and by Wil-
liam H. Dunbar on Government by Injunction, Law Quarterly Ee-
view, XIII., 347 (1897). The latter has been reprinted by the
American Economic Association in Economic Studies, Vol. III.,
No. I.
INDEX.
Adams, Charles Francis, Life of Richard Henry Dana, 351.
Adams, President John, 17.
Aliens, Exclusion of, 596, 598, 600.
Amendments of U. S. Constitution, 498, 510.
Fourth, 361.
Fifth, 133, 153, 290, 361, 468, 471, 482, 509, 540.
Sixth, 361.
Tenth, 125, 164, 310, 524.
Eleventh, 616, 632, 634.
Twelfth, 498.
Thirteenth, 491, 498, 499, 528, 531, 558.
Fourteenth, 290, 298, 307, 491, 501, 513, 516, 519, 523, 527, 531,
534, 540.
Fifteenth, 502.
Articles of Confederation, 86, 127, 163, 323, 480, 505, 555, 591, 622, 639, 640.
Compared with Constitution, 30.
Government under, 173, 200, 201, 604, 610.
Atterbury, Bishop, 375 n.
Attorney General, 334, 335.
Austria, Emperor of, 168.
Baldwin, Justice, 549, 590, 595.
Cited, 639.
Bank of the United States, 32, 33, 142.
Power of Congress to incorporate, 308.
Bankruptcy, 217, 405, 406, 408, 410, 432, 433, 438, 439, 448, 450.
In England, 446.
Bates, Chancellor, 249.
Belligerents, 343, 349.
Biddle, George W., Constitutional History as Seen in American Law,
491.
Bills of Attainder, 372, 383, 387, 403, 440.
Bills of Credit, 102, 103, 106, 107, 109-118, 127, 131, 156, 164, 166-169.
Legal tender not an essential quality, 105, 128.
Prohibition on States to issue, 112.
See Legal Tender, Money.
Bill of Rights, 469, 470, 539.
Black Code, 530.
Blackstone, Sir William, 377, 385, 402, 418, 515, 543.
Blair, Justice, 615.
Blockade, Effect of, 347.
Power of President to institute, 342, 348.
Relation of neutrals to, 343.
Bracton, 605.
669
670 INDEX.
Bradley, Justice, 510.
Cited, 285, 597, 660.
Opinions by, 68, 156, 519, 571.
Brewer, Justice, 280, 602.
Opinion by, 660.
Bridges, 303, 304.
Brougham, Lord, 368.
Brown, Justice, 100.
Bryce, American Commonwealth, 323, 490.
Burke, Edmund, 540.
Campbell, Justice, 488, 490, 491.
Capture, Right of, 343.
Carson, The Supreme Court of the United States, 351, 616.
Catron, Justice, 55, 219, 275, 350, 488-, 489, 490, 491.
Census, Power to take, 142.
Charges, Regulation of, 291, 293, 294.
Chase, Chief Justice, 254, 371, 394, 500, 510.
Cited, 65, 167, 660.
Opinions by, 46, 57, 119, 552, 570, 654.
Chase, Justice, Opinions by, 26, 372.
Cherokee Nation, 585.
Chicago, 300.
Chicago River, 302.
Chinese cases, 595.
Citizens of United States, 473, 475, 478, 489, 502.
Privileges and immunities of, 54, 477, 497, 504, 507, 508, 509, 529.
Distinguished from citizens of the States, 474, 503.
See Negro.
Civil rights, 467, 472, 479, 518, 526.
Clarendon, Lord, 375 n., 388.
Cleveland, President, 638.
Clifford, Justice, 85, 254, 350, 518, 582.
Cited, 89.
Opinion by, 71.
Coasting trade, 187.
Coke, Sir Edward, 497, 536.
Commerce, 46, 47, 52, 173, 175, 179, 185, 191, 193, 200, 201, 210, 215, 223,
227, 229, 240, 241, 243, 246, 250, 253, 255, 259, 267, 270, 272,
275, 276, 302, 312, 528, 546, 665.
Concurrent or exclusive control of, 52, 180, 210, 242, 244, 245, 252,
261, 270, 271.
Control of Congress over, 179, 188, 205, 210, 213, 220, 232, 240, 244,
245, 255, 261, 266, 298, 303.
Control of States over, 215, 232, 254, 270, 275, 278, 280, 304.
Foreign commerce, 178.
Includes intercourse, 255, 261.
navigation, 175, 177, 188, 234.
passenger traffic, 189, 219, 222, 225, 232, 252, 254, 260.
transportation, 249, 250, 252-254, 260, 273, 660.
Regulation of charges not an interference with, 267, 293.
INDEX. G71
Commerce, continued.
Internal commerce, 47, 205, 221, 251, 254, 261, 270, 278, 298.
Interstate commerce, 178, 186, 249, 252, 253, 260, 261, 265, 269, 271,
285, 286, 660, 661, 664, 666.
Common law, 297, 538.
Confederate States of America, 146.
Conflict of laws, 444.
Congress, Powers, of, 162, 309, 344, 406, 527, 577, 600.
Limitations on, 168, 325.
Connecticut, Constitution of, 379, 542.
Constitution of United States, 139, 538, 598, 611, 624.
Adoption of, 309.
Objections to, 39, 362.
Source of, 309, 616.
Supremacy of, 34, 37, 205, 310, 620.
Constitutionality of legislation, 20, 21, 27, 120, 123, 126, 379, 397, 465,
481, 519.
Effect of invalidity of part of statute, 98.
Presumption in favor of validity, 137, 193, 289.
See Judicial Power.
Construction of Constitution, 138, 148, 149, 161, 163, 174, 175, 194, 217,
244, 282, 312, 320, 540, 617, 626, 636.
Loose construction, 174.
Strict construction, 174, 318.
of legislative grants, 457, 460.
of statutes, 120, 138, 175, 341, 357, 458.
Contract, Impairment of obligation of, 121, 133, 150, 152, 153, 164, 376 V
395, 401-403, 405, 406, 414, 423, 424, 428, 429, 432, 433, 435,
436, 440, 454, 522.
Is a charter a contract, 414, 416, 423, 424, 461, 464.
Convention of 1787, 86, 164, 408, 411, 570, 588.
Cooley, Thomas M., Constitutional History as Seen in American Law,
615.
Constitutional Limitations, 83 n., 84 n., 267, 537.
On Taxation, 90.
Corporations, 419.
of one State may do business in another, 258.
Liability of foreign corporations, 263.
Power of Congress to create, 314, 320, 322.
Power of States to tax, 264.
Coulter, J., cited, 84.
Coxe, Judicial Power and Unconstitutional Legislation, 24.
Crime, Punishment of, 141, 148, 317.
Currency, Power of Congress to provide, 62, 167.
Curtis, Justice, 488, 489, 491.
Cited, 537.
Opinion by, 235.
Gushing, Caleb, 478.
Cushing, Justice, 32, 381.
Opinion by, 607.
672 INDEX.
Dana, R. H.. Jr., 350.
Daniel, Justice, 219, 246, 487, 489, 491.
Cited, 575.
Dartmouth College, 413, 416, 422.
Dartmouth, Earl of, 416, 417.
Davis, Justice, 63, 135, 254, 394.
Opinion by, 351.
Declaration of Independence, 476, 480.
Delaware, Constitution of, 375, 378.
Demosthenes, 604.
Denio, J., cited, 536.
Dillon, Municipal Corporations, 83 n.
Domicil, 601.
Dorr's Rebellion, 647.
Due process of law, 80, 498, 535, 537, 540, 541, 542.
Dunbar, William H., Article by, 667.
Dunmore, Governor, 369.
Duvall, Justice, 431, 434, 450.
Eleemosynary institutions, 416, 419, 420, 422, 425.
Elevator charges, 289, 295.
Elizabeth, 603.
Ellsworth, Chief Justice, 26 n.
Emancipation Proclamation, 499, 557.
Embargo, 153. 176.
Enemies' property, 348, 350.
Error, Writ of, 625, 633.
Executive power, 324, 332, 335, 345, 579, 655, 659.
Enforcement of by judicial process, 659.
Exports, 200.
Ex post facto laws, 372, 375, 376, 379, 383, 389, 391, 403, 440.
See Retrospective Laws.
Expurgatory oath, 390, 391, 393.
Federalist, The, 24, 38, 44, 87, 93, 243, 271, 377, 616.
Federal Government and the States, 65, 66, 182, 184, 203, 243, 322,
553, 564, 568, 571, 575, 578, 635.
Fenwick, Sir John, 375 n.
Ferris, 260. 267, 292.
Field, Justice, 160, 171, 259, 273, 299, 510, 518, 582, 602.
Cited, 276, 596, 601.
Opinions by, 260, 299, 324, 381, 564.
Fish, Secretary of State, 598.
Florida, Acquisition of, 583.
Foreign Affairs, 583.
See International Relations.
Forests of United States, Protection of, 333.
France, 383, 386, 481, 529, 638.
Freight tax, 246, 247.
Fuller, Chief Justice, 602.
Opinions by, 92, 270, 645.
INDEX. 673
Gage, General, 369.
Gallatin, 94.
Georgia, Constitution of, 395, 396.
Gerry, 165.
Gladstone, 95.
Gorham, 165.
Government of the United States
distinct from State governments, 565, 568.
extent of its jurisdiction, 257, 660, 666.
of limited powers, 21, 83, 113, 125, 310, 320, 617, 631, 660, 666.
organization of, 20, 125, 139, 468.
supreme in its sphere, 310, 565, 571, 572, 581, 631, 666.
Gray, Justice, 273, 280.
Cited, 640.
Opinions by, 158, 596.
Grier, Justice, 55, 219, 488, 490, 491.
Cited, 575.
Opinions by, 342, 561.
Habeas corpus, Writ of, 330, 352, 354, 358, 567.
Suspension of, 140, 357, 366, 370.
Hale, Lord Chief Justice, 292.
Hamilton, Alexander, 24, 87, 93, 271, 323, 377, 393, 616.
Harbor regulations, 212, 214, 222, 235, 238, 245, 263, 266, 270.
Harlan, Justice, 100, 273, 280, 534, 543.
Cited, 278.
Opinions by, 281, 637.
Henry IV, 603.
Holmes, Justice O. W., cited, 157.
Huberus, 446.
Hunt, Justice, 259.
Kurd, Slavery, 89.
Hutchinson, History of Massachusetts, 106.
Illinois Territory, 305.
Implied powers, 67, 125, 128, 140, 142, 156, 157, 161, 163, 167, 170, SOS,
313, 323, 330, 577.
Imports, 194, 200, 202, 207.
When States may tax, 197, 207, 208.
Imposts, 193, 238.
Indians, 544, 592, 594, 657.
Not a State or nation, 547, 586, 589.
Power of Congress over, 546, 548, 551, 586, 591.
Indictment by grand jury, 535.
Injunction, Government by, 660, 667.
Injunction, Writ of, 654, 656, 657, 658, 660, 666, 667.
Inspection laws, 181, 183, 194, 199, 213, 221, 227, 270, 274, 281, 284.
International relations, 445, 583, 639, 657, 658.
Insolvency laws. See Bankruptcy.
Iredell, Justice, 381, 615.
Opinion by, 29.
674: INDEX.
Jackson, Justice, 100.
Jay, Chief Justice, 94, 615.
Opinion by, 610.
Johnson, Justice, 45, 101, 108, 167, 192, 405, 431, 444, 590, 627.
Cited, 280, 537.
Opinion by, 444.
Johnson, President, 500, 558, 652, 653, 654.
Johnston, Alexander, 472, 490, 590.
Judicial power, 21, 22, 24, 331, 335, 353, 363, 375, 378, 397, 445, 566, 585,
599, 607, 612, 618, 623, 626, 628, 632, 663, 666.
Judiciary, Power of to pass upon validity of legislation, 21, 22, 25, 123,
322, 598, 656.
to be exercised with great care, 92, 123, 155, 381, 396, 413.
relation of Federal and State, 329, 449, 450, 564.
Jurisdiction of United States courts, 404, 467, 472, 512, 517, 522, 544,
553, 561, 603, 616, 618, 626, 629, 634, 635, 637, 640, 644, 657.
Jury trial, 361, 364, 394, 515.
Justice, Department of. See Attorney General.
Justice, Establishment of, 132, 611.
Kent, Chancellor, 192.
Commentaries, 40, 72 n., 90, 494, 536.
Kenyon, Lord, 292.
Kildare, Earl of, 387.
Koszta, Martin, 334, 602.
Lamar, Justice, 645.
Lancaster, Attainder of Earl of, 368.
Legal tender, 105, 120, 128, 130-132, 136, 145, 146, 152, 154, 155, 167, 169,
170, 376.
Acts of 1862, 1863, 1878, 119, 159, 160.
Constitutionality of, 125, 130, 135, 137, 144, 155, 160.
Necessary and appropriate means of carrying on war, 128, 132,
135, 144, 146.
Legislative power, 373, 374, 399, 401, 403, 497, 559.
Licenses, 46, 47, 48, 187, 188, 192, 204.
may confer authority, 46, 47.
a form of taxation, 48, 263.
Lincoln, Attorney-General, 18, 19.
Lincoln, President, 499, 558.
Liquors, Sale of, 208, 209, 271, 275, 278, 280.
Livingston, Justice, 431.
Macaulay, 497.
Mackintosh, Sir James, 368, 538.
Madison, James, 17, 18, 19, 87, 93, 165.
Magna Charta, 290, 535, 537, 539.
Marcy, Secretary of State, 333. 598, 602.
Marshall, Chief Justice, 84, 161, 163, 267, 272, 354, 389, 432, 434, 444, 450,
496, 549.
INDEX. 675
Marshall, continued.
Cited, 68, 92, 93, 110, 126, 138, 139, 143, 145, 146, 161, 163, 164, 166,
171, 216, 222, 226, 228. 263, 354, 355, 356, 386, 389, 437, 439,
459, 547, 549, 599, 639, 640, 644, 656, 660, 665.
Opinions by, 19, 33, 41, 101, 173, 191, 308, 395, 406, 412, 467, 561,
583, 585, 590, 627.
Speech in Virginia Convention, 25, 615.
Marshals of United States, Powers of, 336.
Martial law, 338, 360, 363, 365, 367, 651.
Martin Luther, 165.
Maryland, Constitution of, 375, 377.
Massachusetts, Constitution of, 290, 375, 377.
Matthews, Justice, 98, 273.
Cited, 274.
Opinion by, 534.
McLean, Justice, 101, 108, 219, 246, 466, 488, 595.
Cited, 306.
Opinions by, 108, 219, 488.
Meigs, W. M., Article by, 24.
Merlin, 602.
Merrick, J., 535.
Cited, 536.
Migration or importation of persons, 183, 189, 227, 232, 233.
Militia, Power of Congress over, 217, 338.
Miller, Justice, 135, 371, 394, 563.
Cited, 516, 640.
Lectures on the Constitution, 323, 431, 510.
Opinions by, 50, 79, 325, 491, 543.
Ministerial duties, 655.
Missouri Compromise, 480, 483, 486, 488.
Missouri, Constitution of, 381, 386, 388, 390, 392.
Money, Contracts to pay, 151, 152.
Money, Power of United States to borrow, 41, 43, 166, 312.
Power of United States to coin, 127, 149, 150, 170.
Paper money issued by colonies, 103, 106, 109.
issued by Congress, 106, 127.
United States notes, 120, 129.
Depreciation in value, 121.
See Bills of Credit, Legal Tender.
Monopoly, 492, 497.
Morris, Gouverneur, 86.
Municipal Corporations, 80.
National banking associations, 56, 58, 166.
Taxes imposed on, 58-60.
Naturalization, 217, 477.
Navigation, 240, 305, 306.
"Necessary and proper" defined, 126, 162, 163, 315, 319.
laws, 139, 147, 314, 315.
Negro, 475-478, 501, 503, 512.
Can he become a citizen, 473, 480, 489.
676 INDEX.
Nelson, Justice, 63, 219, 350, 490, 491.
Opinions by, 64, 484.
Neutrality, 346.
North Carolina, Constitution of, 375, 378.
Officer, obligation to testify as to his official acts, 18.
right to his commission, 20.
Ordinance of 1787, 132, 304, 186, 487.
Original package, 269, 272, 273, 279.
Paper Money. See Bills of Credit, Legal Tender, Money.
Pardoning power, 324.
Parliament of Great Britain, 423, 539, 664.
Paterson, Justice, 381.
Opinion by, 28.
Pennsylvania, Constitution of, 375.
Phillimore, 602.
Pilots, 240, 241, 244, 245.
See Harbor Regulations.
Pitt, 95.
Police power, 183, 185, 199, 214, 215, 221, 225, 229, 234, 252, 266, 267, 270,
275, 276, 278, 281, 286, 289, 291, 303, 307, 494.
Pomeroy, Constitutional Law, 90.
Political questions, 46, 62, 97, 107, 146, 171, 346, 548, 559, 562, 578, 596,
597, 599, 600, 602, 637, 638, 639, 647, 650, 652, 655, 657, 658.
Political rights, 652.
Post-offices and post roads, 255, 318, 660, 661, 666.
President, 654.
Military powers of, 339, 340, 341, 342, 345, 357.
Powers and duties of, 332, 335, 337, 339, 345, 649, 655.
Private property, not to be taken without compensation, 133, 380.
not to be taken without due process of law, 80, 84. 134, 289, 290.
protection of, 482, 483.
Prize, Right of, 343.
Property, Right of, 380.
Public interest in private business, 292, 293, 294, 296.
Public purpose, 85.
Rawle, Constitution, 9Q.
Raymond, J., 378.
Rebellion, 567.
financial condition at outbreak, 57.
financial measures adopted during, 58.
Reconstruction, 558, 559, 562, 652.
Redfield, Law of Railways, 83 n.
Reeve, History of English Law, 536.
Regulation of charges, 267, 289, 293, 295.
Republican government guaranteed to each State, 557, 558, 648, 651.
Reserved powers of the States, 67, 68.
Retrospective laws, 377, 441, 454.
Rhode Island, 369.
Rights of life, liberty and pursuit of happiness, 385, 386.
INDEX. 677
San Ildefonso, Treaty of, 638, 639.
Secession, 554, 556.
Sergeant, Constitution, 90.
Servitude, Involuntary, 498, 500, 529
Sharswood, Blackstone, 90.
Shaw, C. J.. 98, 494.
Cited, 535.
Slaves and Slavery, 476, 482, 484, 487, 488, 498, 528, 532, 557.
Effect of residence in free territory, 483, 485, 488, 489.
See Servitude, Involuntary.
Slave trade, 227.
Smith, Wealth of Nations, 29.
South Carolina, Constitution of, 375.
Specie payments, Act for resumption of, 159.
Standard of value, 440.
States of the Union, 554, 561.
Position of before adoption of Constitution, 173, 383, 474, 611.
Powers of, 290, 309, 373, 401, 406, 407, 428, 468, 474, 506, 617.
Restrictions on, 168, 195, 375, 440, 469, 521, 609.
Sovereignty of, 65, 577, 603, 608, 621, 632.
Suability of, 404, 585, 603, 607, 609, 613, 615, 630, 632, 637, 643.
Statutes of limitations, 411, 436, 438. /"'
Stimson, F. J., Article by, 667.
Story, Justice, 118, 220, 431, 444, 450, 590.
Cited, 138, 346, 347, 455, 466, 650.
Commentaries on the Constitution, 90, 122, 125, 141, 249, 272, 387,
641.
Opinions by, 338, 616.
Stowell, Lord, cited, 345.
Stratford, Earl of, 375 n.
Strong, Justice, 299.
Cited, 170.
Opinions, 136, 246, 511.
Suffrage, Right of, 478.
Swayne, Justice, 135, 371, 394, 510.
Cited, 664, 665.
Opinions by, 85, 254, 563.
Swift's Digest, 542.
Taney, Chief Justice, 276, 350, 489, 490.
Cited, 51, 55, 74, 291, 356, 487, 508, 548, 559, 566, 568.
Opinions by, 204, 451, 472, 647.
Taxation, 26, 3$ 34, 79, 80, 83, 84, 86, 147, 170, 180, 181, 192, 193, 196, 197,
199, 203, 206, 207, 214, 221, 223, 227, 228, 229, 233, 237, 246,
247, 250, 259, 263, 264, 269, 312, 459.
direct, 26-28, 30, 32, 60, 8.6, 88, 89, 90, 93, 94, 99.
duties, 27, 193, 197, 199, 221, 226.
Federal power of, 38, 39, 61.
in aid of inspection laws, 75.
in aid of private enterprises, 81.
indirect, 27, 29.
678 INDEX.
Taxation, continued.
must be for public purposes, 84.
of agencies and contracts of United States by the States, 33, 36,
37, 40, 41, 43, 44, 54, 64, 166, 169, 322.
of exports by States, 51, 52, 195, 238, 246.
of incomes, 95, 97.
of national banks, 58-60.
of passenger traffic by States, 50, 51.
of State agencies by United States, 64, 95.
of State banks, 56, 63, 167.
of State franchises by United States, 61.
of tonnage by States, 71-73, 76, 238.
State power of, 35, 36, 39, 75, 196, 197, 224, 247, 251, 264.
Telegraph, 256.
Territory of United States, 481, 488, 547, 584.
Power to acquire, 583.
Test oath, 382, 384, 390.
Texas, Constitution of, 656.
Thayer, J. B., Articles by, 24, 157.
Cases on Constitutional Law, 24, 490.
Thompson, Justice, 45, 101, 108, 118, 204, 444, 450, 466, 590.
Tonnage duties, 76, 221, 237.
Treaty-making power, 583.
Trimble, Justice, 444, 450.
Union, The, 555, 562, 630, 661.
Valuation of real and personal property in United States in 1890, 99.
Vattel, 344, 445, 593, 602.
Waite, Chief Justice, 273.
Cited, 517.
Opinions by, 255, 289.
War, 312, 338, 342, 343, 363, 566, 583, 597.
Civil War, 344, 349, 557.
Washington, Justice, 431, 450, 595.
Cited, 454, 505.
Opinion by, 432.
Wayne, Justice, 55, 246, 371, 487, 489, 490, 491.
Opinion by, 231.
Webster, Noah, 355, 541.
Weights and measures, 154.
Wharton, Digest of International Law, 598, 602.
White, Justice, 100.
Wilson, Justice, 32, 615.
Opinion by, 603.
Speech in Pennsylvania Convention, 25.
Works, 157, 323.
Wirt, William, 478.
Woodbury, Justice, 219.
Wooddeson, 377.
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